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If reservations are bad, those in promotions worse PDF Print E-mail
Tuesday, 09 May 2017 03:42
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Shobhana's edit

 

Bringing in legislation to bypass SC criterion in the Nagaraj judgment unfortunate — where will this stop?

 

Given that reservations go against the principle of merit, and even the Constitution did not envisage reservations for SC/ST for as long as 70 years—OBC reservations were not part of the Constitution but were brought in via the Mandal report—it is unfortunate the NDA government continues to push for quotas. If it wasn’t bad enough that the government bestows special privileges for SC/ST/OBC when it comes to admissions in colleges and jobs in the government, a quota for promotions is the worst form of vote-bank politics—after all, if SC/ST/OBC cannot even get promoted on the basis of their merit, at what stage will the quotas stop? Over time, the courts have tried to put limits to the use of quotas for promotion—in March 2016, in response to a PIL, the Supreme Court had ruled that SC/ST candidate could not ‘claim quotas as a right in government job promotions’, building upon a judgment given in M Nagaraj in 2006.

Soon after the SC ruling in March, however, the government set up a committee in the department of personnel and training (DoPT) to come up with suggestions on how to retain the quota in promotions. While it is not clear how the government proposes to deal with the legal aspects and whether it will push for overhauling the law altogether, the committee has reportedly favoured reservations in promotion “for equal opportunity and inclusive growth”. While the UPA regime was also of the same view, that cannot exonerate the present government which is also reportedly hoping to ease the rules.

In December 2012, the Rajya Sabha passed the Constitution (117th Amendment) Bill which effectively sought to substitute the present Article 16(4a). In the Nagaraj case, while upholding the law on quotas in promotions, SC had said that the state was not bound to make reservations for SC/ST in the matter of promotions and that 16 (4a) was merely an enabling provision to be used subject to certain conditions—these included showing backwardness, inadequacy of representation and proof that overall administrative efficiency was not compromised. Since it was difficult to collect data to prove these criterion were being met—and various judgments went against the government due to this inability—the UPA sought to fix this by the 117th Amendment to the Constitution and got it passed in the Rajya Sabha.

Curiously, the NDA government hasn’t chosen to introduce this Bill in the Lok Sabha where it enjoys a clear majority—one possibility is that it feels the constitutional amendment doesn’t fully cover all the criterion raised by the Nagaraj ruling. It would be unfortunate if the government succeeds in changing the law to bypass SC’s safeguards. Indeed, in the Indra Sawhney case in 1992, the apex court had said quotas in promotion were ‘ultra vires’ of the Constitution—it, however, allowed these to continue for five years, but before this expired, the government had changed the law to make it legal. With general category students and job-seekers getting a raw deal already with the reservation quota at a high 50%, it is patently unfair they should also be at a disadvantage when it comes to promotions. With this kind of government pampering, it is not surprising even prosperous groups, from the Jats to the Patels, are looking to be included in the reserved category. Instead of being wound down, the principles of reservations are being ratcheted up.

 

 

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