In the wake of the introduction of the Constitution (117th Amendment Bill) 2012, a fierce ‘debate’ was sought to be manufactured in the media over the merit of allowing reservations in promotions for SCs and STs. It was projected as though the constitutional amendment sought to introduce the principle of reservations in promotions for SCs and STs, for the first time.

The fact of the matter is that reservations in promotions for SCs and STs have been constitutionally recognized since 1955, and further strengthened by the Constitution (Seventy-seventh Amendment) Act, 1995. The constitutional validity of reservations in promotions for SCs and STs has been upheld by the Supreme Court’s Constitution Bench in the Nagaraj case in 2006. The constitutional validity of reservations in promotions for SCs and STs is therefore beyond dispute.

What the Nagaraj verdict did while upholding the Constitutional validity of reservations in promotions, was to lay down certain tests that State Governments would have to satisfy in order to provide reservations in promotions. The verdict’s interpretation of the Constitution with regard to reservation would make reservation more elusive and difficult to avail of, for the SCs and STs.

The verdict held that beneficiaries of reservation cannot claim reservation as a ‘fundamental right.’ State Governments would have to show proof of ‘compelling reasons; backwardness; and inadequate representation in the services’; and would also have to fulfill the following conditions:

exclusion of “creamy layer”; efficiency of administration required by Article 335 should not be compromised; and reservation should not be extended indefinitely. Based on these aspects of the verdict, the Supreme Court in 2012 struck down the UP Government’s Seniority Rules which provided for reservations in promotions, on the grounds that the state government had not undertaken any exercise to identify whether there was backwardness and inadequate representation of Scheduled Castes and Scheduled Tribes in the state government.

The conditions laid down in the Nagaraj verdict are highly flawed and not in any way applicable to SCs and STs. The Mandal verdict of 1992 clearly spelt out that ‘exclusion of creamy layer’ was not called for in the case of reservations for SCs and STs, but only for OBCs. ‘Backwardness’ is not the basis for reservations for SCs and STs: SCs are eligible for reservation because of systematic and historical discrimination and untouchability, while reservation for STs is based on their distinct cultural identity and isolation. It makes no sense to ask State Governments to prove every time that SCs and STs are inadequately represented; rather, those challenging reservations should be asked to prove adequate representation of SCs and STs!

How should ‘efficiency’ as mentioned in Article 335, be defined? Doesn’t discrimination at the workplace diminish efficiency? To presume that it is the presence of SC/ST beneficiaries of reservation who endanger efficiency is a blatantly biased view.

Let us look at some facts:

• Among the 126 Secretary-level posts in the GoI today, there is only one ST and not a single SC.
• Among the 594 Central posts at the Additional Secretary and Joint Secretary level, there are only 19 SCs and about that many STs.
• But in ‘Group D’ services and below, SCs are over-represented – with 40% representation! If SCs enjoy overall 17% representation in central government jobs, it is only because of this glaring over-representation at lower rungs, that hides the equally glaring absence in higher rungs!
• In every Government department at Central and State level, including in educational institutions, large backlogs of vacant SC/ST posts in higher levels are a scandal.

Now, if Government departments are notoriously inefficient, who is responsible? Clearly, the SCs and STs at present have a virtually negligible presence among those who run those departments! It is preposterous, then, to accuse them of holding up ‘efficiency’!

The amendments proposed in the 117th Amendment Bill seek to clarify the provision for SC/ST reservations more fully, to reduce the possibility of interpretative hurdles of the kind laid down in the Nagarj verdict. The amendments therefore seek to make it clear that the State is constitutionally required to mandatorily provide reservations in direct recruitment and promotion; that the criteria for identifying SCs in “untouchability” and for STs, “isolation under vulnerable tribal conditions”; that reservations for SCs and STs must continue as a fundamental right till adequate representation for them at all levels in achieved, and till they are enabled by the State to acquire the capability to maintain that representation in open competition, and till untouchability and discrimination in the case of SCs and vulnerable tribal isolation in the case of STs is completely eliminated; and clarify a socially just interpretation of ‘efficiency’.

We also need to understand the politics of opposition to the Bill. The Samajwadi Party opposed the Bill, and the general impression was that they opposed it demanding extension of the provision of reservation in promotions to OBCs. The DMK too stated that it supported what it claimed was the Samajwadi Party’s demand for extension of the provision to OBCs.

But the OBC question is a smokescreen. SP chief Mulayam Singh Yadav’s brother Ramgopal Yadav made the stand quite clear: ““When we are saying the proposed move is unconstitutional altogether, how can we demand a similar provision for OBCs?” The SP is saying that they will block this Bill, just as they have blocked the Women’s Reservation Bill. In the case of the both Bills, it should be noted that the plank of parity for OBCs has been nothing but a pretext for outright opposition to social justice – for SC/STs and women! It is ironic that the Mandal-messiah party SP, has been peddling the most regressive and meritocratic anti-reservation arguments to oppose reservations in promotions for SCs and STs.

The SP’s opportunist hope is that this move will help endear them to the upper castes in UP. A senior SP leader was quoted in a leading paper as saying, ““Badi mushkil se toh pichhdon aur agadon ko ek karne ka ek mauka mila hai (Here is a hard-to-find opportunity to unite the backwards and the upper castes). Why should we demand reservation in promotions for OBCs?”

Clarifying the existing constitutional provisions for reservation in promotions for SCs and STs must not be tied up with extension of those provisions for OBCs. Any fresh proposal for reservations in promotions for OBCs must be considered separately, since the Constitutional criteria for reservations for OBCs are distinct from those for SCs and STs.