Bending the Constitution, backwards PDF Print E-mail
Wednesday, 15 August 2012 01:50
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From the Hindu rate of growth to reservation in promotions, India remains stuck in the past in so many ways

Article 16 promises equality for all, but a new clause in it allows for reservations in promotions -- a Bill to this effect is to be brought into Parliament soon. It's not just politicians, even senior judges have acquiesced in this


As Independent India completes her 65th year, one of the more frightening aspects of the anniversary is how little we’ve changed. There are, of course, the obvious changes in income levels, in poverty, in mortality, in the structure of the economy, in its global competitiveness … you name the area, and there’s been a change for the better. The pace may have been slow initially, but even that has picked up and you can see the clear link between GDP growth and poverty reduction, between GDP growth and jobs growth, or educational standards and even in winning Olympic medals!

Yet, in many critical ways, it’s as if India hasn’t moved since that magical day in 1947; indeed, in some ways it looks as if it has regressed. We’re standing at that critical junction, the age when a man retires, when we’re in danger of slipping backwards very fast. And this is true in more areas than one.

The economy’s the obvious starting point. With a sub-5% growth looking possible in case the monsoons don’t pick up, this highlights the fact that the famous drought-proofing is only skin-deep. As Surjit Bhalla has pointed out (http://goo.gl/pWvkj), we’re back to the infamous Hindu rate of growth with investment levels that are more than double those in the 1970s, and after the productivity gains we’ve witnessed, we’re growing at way below the old Hindu rate of growth. And, as Crisil points out, after the Global Financial Crisis, it has been the public sector that kept India’s growth afloat—two decades after the famous 1991 reforms, and the role of the public sector is still critical!

The larger issue this column is concerned with is that of reservations. While our founding fathers were against reservations, they reluctantly agreed to this, but just for a period of 10 years. And it was only for SCs and STs, people who had a history of being discriminated against. We’re in our 66th year of independence, and reservations have only got stronger. They’ve been extended to other castes, to even religions, to not just educational institutions, but to jobs, and to promotions within these jobs—in a fractious Parliament that can’t seem to pass anything, you can bet the Bill being brought in on a quota for promotions in this session will get all-party support. Things have reached a stage where, thanks to this beauty called ‘consequential promotion’, candidates from the non-reserved category end up getting discriminated against! Since one column can’t do justice to the travesties being committed, read Arun Shourie’s Falling over backwards—the edition just out has a new epilogue which has fresh evidences of the great fall.

The sleight of hand involved in converting ‘caste’ to ‘class’ for the OBC reservation is well known. BP Mandal collected data on caste from the dodgy 1931 Census (http://goo.gl/TIB4V), and then used a limited field survey for his famous conversion. It’s equally well documented that the OBC share in population is a fudge—between 1999-2000 and 2004-05, NSS data show the OBC share of population rose from 36% to 41% which means OBCs were growing at 4.3% per annum while non-OBCs were reducing by 0.1% per annum! Similarly, the data clearly show education is the real barrier (http://goo.gl/27t8S), but neither the courts nor Parliament have been particularly concerned about the facts.

Before the landmark Indra Sawhney case in 1992, several judges talked about relaxing marks and other standards (http://goo.gl/WxnJt) even though the Constitution was clear this was not to be allowed. Yet, you’d have thought this would have been put to rest with Indra Sawhney since it was decided by a 9-member Court bench. Not quite, it appears. The slippery slope got slipperier.

In 1994, in Ajay Kumar Singh, the Court was asked to rule on reservations at higher levels of education, something in which Indra Sawhney clearly said was not to be allowed. So, in this case, the Court said, “(In Indra Sawhney), the Court was speaking of posts in research and development organisations, in specialities and super-specialities in medicines, engineering and other such courses. The Court was not speaking of admission to specialities and super-specialities. Moreover, M.S. or M.D. are not super-specialities”! In RK Sabharwal, in 1995, the Supreme Court said the quota only existed for candidates that did not make it on their own merit.

It gets worse. In 1997, in Post-Graduate Institute of Medical Education and Research versus KL Narasimhan, the Court said that even if a reserved category candidate was applying for a super-speciality and the qualifying marks were lowered (from, let’s say, 80 per cent in the general category to 70 per cent for the reserved category), it didn’t really matter since the reserved category doctor had passed the same graduate or post-graduate exam anyway. In case the import of the judgement is not clear, here’s a quote which should clarify things: “Securing marks is not the sure proof of higher proficiency, efficiency or excellence … In that behalf, it is common knowledge that marks would be secured in diverse modes … They are awarded in internal examination on the basis of caste, creed, colour, religion, etc.”!

If these were the judges, look at what the political class did to the Constitution. In 2005, the 93rd Amendment to the Constitution extended reservations to private educational institutions even if they had taken no aid from the government. While Article 335 which dealt with SC/ST reservations talked of the need to maintain efficiency, the 77th Amendment in 1995 added Clause 4A to Article 16 to allow reservations for promotions. In 2000, Parliament passed the 81st Amendment which allowed unfilled reservations to be carried forward. The 82nd Amendment, the same year, did one better, and allowed the government to lower the marks for promotions—in 1996, the Court had ruled against this in S Vinod Kumar.

In Virpal Singh Chauhan, in 1995, the Court ruled against consequential seniority, but in 2001, Clause 4A was further modified to allow for this. So a SC/ST/OBC would get a job because of reservation, he would then get promoted out-of-turn because of this, and then be senior to a general category candidate who didn’t get any special favours.

While judges have occasionally protested, Shourie shows these have been more the exception than the rule. So what was meant to be an entry-reservation has moved to even promotions based on diluting of standards. And where the judges have ruled against such policies, Parliament has gone and over-ruled them. And why not? Marks are awarded in internal examination on the basis of caste, creed, colour, religion, etc!

As we cut our 65th birthday cake, and Parliament prepares to pass a Bill on quotas for promotion—3 months after the Court ruled against such quotas in UP—we need to take stock of what we’ve done to our legacy. And feel ashamed.


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