Misinterpretation by Judiciary and conscious silence of ‘Civil Society’
Equality is inherent pre-requisite for any civilization or nation to be humane, progressive or even stable. We in India have been lucky and unlucky to witness both aspects of society from ancient times. The advent of varn vyvastha or caste system have been one of the most inhuman, long and surprisingly supported by many sections of Indian society throughout centuries especially the medieval ages. Today after the establishment of Republic of India, the Constitutionalism and Rule of Law is the way through which all the outstanding disputes between society, state and power centers are to be resolved. Not only it is frustrating and painful, it is quiet slow because of all sorts of Machiavellian tricks, hurdles and connivance of various dominating sections in politics, academia, judiciary and all other economic, political and social power wielding procedures and centers. In order to tackle this in a democratic way, our founding fathers founded one of the most unique and complex constitution in order to establish Rule of Law in this nation which is not only capable of propelling the society forward in its evolution but also it does have the potential to transform and heal old historical and social wounds that various sections of societies have inflicted against each other.
Strengthening Rule of Law through Constitutionalism is order of the day. This is fundamentally essential in order to not only address social and other evils in India but also in order to uproot them completely. This struggle towards social justice through constitutional means in politics, in society, in academia and all other aspects is AMBEDKARISM in practice and we while identifying serious hurdles in the path of social justice and empowerment of oppressed believe that the path shown by founding fathers of this nation i.e. Dr. Ambedkar, Mahatma Gandhi etc along with other practitioners of politics and law like Abraham Lincoln, Martin Luther and Nelson Mandela is the best path to follow.
Infact we, as ESYA, do have wide political and practical experience of the methods employed by other radical ideologies which are usually based on either some creed, race, religion or perhaps some political ideology (Stalinism/Maoism) which do prefer or perpetrate violence as the only tool against injustice. On the other hand not refuting completely the role of armed struggles in history we must understand that neither we are living in history nor this is some African dictatorship or Middle east theocratic State, we are Secular, Democratic, Socialist Republic of India and being that our responsibility to make it a successful democracy based on justice social and economic becomes much more important. The constitutional legal frameworks prepared by Dr. BR. Ambedkar, especially his vehement emphasis on the rights of oppressed and social justice has given Indian constitution a position much above esoterically and even in matters of constitutional jurisprudence much above the constitutions of Western Democracies whereby, their still awkward and backward attitude towards their own oppressed especially, the tribal people, the blacks, aboriginals etc. is quiet conspicuous. But on the other hand we would like to argue the superior potential of Indian constitution is expressed through its application in Article 16 and all the matters relating to reservation. Where, the spirit and intention of this particular article is derived from Ambedkar’s own philosophy that power sharing among all the sections of society is necessary in order to uplift the oppressed. Hence, the struggle and evolution of Article 16 commences in Indian political and legal scene, causing many dominating sections to often react violently and using all their tricks in order to do away with this provision. But various judgments of Supreme Court of India have infact strengthened this provision and also have highlighted the need of this provision to remain for long time and also to extend in certain more sectors.
Therefore, accepting Constitutionalism as basic tool and procedure of struggle we would like to discuss in details and point out the facts that have recently surfaced regarding the relevance, importance and extension of reservation especially reservation in promotion in government services. Even though it is clear that power sharing in all the power centers is essential in uplifting the oppressed, especially dalits of India, still somehow in academic circles and even among judiciary there is confusion and an uneasy reluctance to apply this principle fearlessly. We shall discuss the evolution of the concept of reservation in promotion and recent debates around it while supporting all the efforts, be it judicial or political in order to manifest the law regarding reservation in promotion and passage of 117th Amendment Bill.
On the last day of Indian parliament’s winter session in the year of 2012 due to ruckus created by member parliaments of BJP there was no meaningful discussion or debate on the issue of Reservation in Promotion which was introduced as 117th Amendment Bill. It is true that inadequacy of representation in higher echelons of administration has been quiet a fact yet no action has been taken. As per Article 16(4) of Constitution, reservations in direct recruitment and in promotions were admissible to SCs/STs in Centre/State government services in promotion to their population till 15/11/1992. On 16/11/1992 in the celebrated case of Indra Sawhney, a 9 judges bench of Hon’ble Supreme Court decided that Article 16(4) of Constitution did not provide for reservation in promotions to SCs/STs but ordered that since reservation in promotion were admissible to SCs/STs through various executive orders since 1954 , the same be continued for another period of 5 years only. This buffer period was provided to the executive to enable them to take appropriate measures to implement the Indra Sawhney order. In order to remove this anomaly, the parliament, through 77th amendment of the constitution, added a new clause 4(A) in Article 16 i.e. 16(4-A) and that the promotions must be given to the members of SC/ST from the back date of 17/06/1995.
BUT even after the parliament providing for reservation in promotion through the above mentioned amendment(77th ) with the aim of filling the gap in the higher grade posts of Government Services because of the INADEQUATE REPRESETATION of SCs/STs; still the implementation of it went through considerable delay when Supreme Court itself introduced ‘CATCH UP PRINCIPLE’ and unfortunately gave its own definition of promotion by removing consequential seniority from it which prima facie goes against the principles of service jurisprudence and most importantly it devoid the 77th Amendment Bill from intended empowerment and giving administrative power to historically deprived section i.e. SCs and STs.
- CATCH UP PRINCIPLE – On 10/10/1995 in the case of Virpal Singh Chauhan Supreme Court made a blunder. It introduced something called ‘catch up principle’ which means, that once a SC/ST candidate is given accelerated promotion (R.K. Sabharwal) in any government service he or she will not be able to maintain his/her Seniority on such promotions. That here it is evident that whole idea of giving accelerated promotion or of 77th Amendment is Empowerment of the deprived section through promoting them in higher echelons but what kind of empowerment is done when promotion is given without seniority ? It was gross violation of principle of equality, service jurisprudence and an act inconsistent with spirit of Indian constitution’s basic structure. Similarly same principle was upheld by Hon’ble Supreme Court in the case of Ajit Janjua that if catch up principle is not applied then principle of equality is violated. Because of this principle hundreds of members of the SC/ST community were not given consequential seniority and were deprived from being adequately represented in higher echelons of administration.
- 85th and 117th AMENDMENT:- Hence in order to remove this inconsistency, to dilute and repeal the catch up principle parliament of India again amended the constitution of India where the term consequential seniority was introduced in Article 16(4)A. In the Object and Reasons of the 85th Amendment parliament of India agreed and accepted that “ The judgements of Supreme Court in the case of Union of India Vs Virpal Singh Chauhan and Ajit Singh Janjhua Vs State of Punjab, which lead to the issuance of OM dated 30/01/1997, have adversely affected the interest of Government Servants belonging to Schedule castes and Schedule Tribes category in the matter of seniority on promotion to the next higher grade.” Hence parliament made sure that along with promotions consequential seniority is also given and catch up principle is repealed. The following is the data published by National Commission for Schedule Castes in its Seventh Report showing the percentage of the inadequacy of SCs/STs in Higher Posts of Administration-
|D (excluding Sweepers)||956947||167947||17.55||64865||6.78|
|Total (Excluding Sweepers)||3577053||583002||16.30||227581||6.36
- NAGRAJ & OTHERS VS UNION OF INDIA & OTHERS:-
To the much heartburning of right wing minded population in the country the repealing of the catch up principle was a hammer blow of parliament on the supremacy of the privileged on the higher echelons of the administration. Hence they challenged all the related amendments of the constitution. The constitutionality of 77th, 81st, 82nd and 85th Amendments were challenged in the above mentioned case where the petitioners contended that consequential seniority cannot be given to the members of SCs and STs once the accelerated promotion is granted. Even after upholding the constitutional validity of all the amendments Hon’ble Court was of the point of view –“ Para 123:- However, in this case, as stated above, the main issue concerns the extent of reservation. In this regard the State concerned will have to show in each case the existence of compelling reasons, namely, backwardness, inadequacy of representation and over all administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The state is not bound to make reservation for SCs/STs in matter of promotion however if they wish to exercise their discretion and make such provision, the state has to collect quantifiable date showing backwardness of the class and inadequacy of the representation of that class in public employment in addition to compliance with article 335.”
Hence, the idea of quantifiable data, of every state proving the inadequacy of SCs/STs and backwardness is absurd, weird, bizarre as well as shockingly inconsistent with the spirit of the Amendments -77th, 81st, 82nd and 85th. . In opposition to this whole idea Parliament had introduced 85th Amendment and later on 117th Amendment as well.
- There is infact no need to collect data to show the inadequacy of representation of the communities in question especially when it is already established in Indra Sawhney’s case that it is not any empirical data which will show the backwardness but historical and sociological factors which are the reasons of backwardness of SCs/STs. This means that Judiciary must work in harmony with the social reality and political will of the people of India as is mentioned in the Objects and Reasons of the 85th and 117th Amendment Bill. The judgment of M.Nagraj in this respect is in contradiction with three major factors regarding the so called SCs/STs which has to be take into account are – 1. Backwardness 2. Inadequacy of representation 3.Administrative efficiency
Here we shall discuss these factors briefly to establish that no state is required to give some quantifiable data to prove the following –
- Backwardness of the SCs/STs for the purposes of reservation in promotion :-
There are large number of judicial findings to show that the backwardness of SCs/STs is not measured in individual cases but as a block or the community as a whole. A constitution bench of Hon’ble Supreme Court in E.V. chinnaiah Vs State of Andhra Pradesh and Others in para 93 observed :-
“ Schedule Castes; however is not a caste in terms of its definition as contained in Article 366(24) of the constitution. They are brought within the purview of the said category by reason of their abysmal backwardness. Schedule Castes consists of not only the people who belongs to some backward caste but also race or tribe or part of groups within castes, races or tribes.”
The judgment of Apex Court in M. Nagraj’s case asking for a basis for backwardness does not match with the provisions of Constitutions. As far as SCs and STs are concerned, it is clear that in terms of Article 341 and 342 of the constitution, ‘backwardness’ relates to castes and not persons but in the M. Nagraj case the Supreme Court has tried to define backwardness in relation to person/government servant, whereas in Indira Sawhney’s case the Apex Court in para 779 specifically observed that :-
“ Lowlier the occupation lowlier the social standing of the class in the graded hierarchy. In rural India occupation and caste nexus is true even today. A few members may have gone to cities and even abroad but when they return they barring a few exception go into the same fold again. It does not matter if he has earned money. He may not follow a particular occupation but still the label remains. His identity is not changed for the purpose of marriage, death and all other social function. It is his social class that is still relevant.”
Further in para 788 in Indira Sawhney Vs Union of India Justice B.P. Jeevan Reddy observed that :-
“ The Schedule Tribes and Schedule castes are without a doubt backward for the purpose of clause ; no one has suggested that they should satisfy the test of social and educational backwardness.”
Again in para 796-797 it is observed that :-
“It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes refered to in Article 15(4) and Article 340, it is much wider. The test of requirement of social and educational backwardness cannot be applied to SCs/STs, which indubitably falls within the expression ‘backward class citizens’.”
It is also very relevant to take note that Indira Sawheney case was decided by 9 judges Bench whereas M. Nagraj case was decided by 5 Judges bench only and, therefore, the decision in M. Nagraj case cannot supersede the decision taken in Indra Sawhney’s case. The decision was given as it was given in ignorance of earlier decisions taken by the larger bench which dealt with Indira Sawhney’s case. Therefore Indra Sawhney case is valid law of land which does not permit any further justification of backwardness of SCs and STs.
2. Inadequacy of Representation:- The idea of promotion in reservation stems from the idea of empowering a historically trampled community, it is more of an ideological application of the principle “ Unequals cannot be treated equally” an affirmative action in the purview of Article 16(4). And Article 16(4) clearly states that in the services of state, SCs are to be provided an opportunity where they are not adequately represented. Constitution commands the sate to make reservation for SCs. So far as education is concerned, reservation is provided to the members of SC/ST/OBC under the central educational institutions (Reservation in Admissions) Act 2006 laying down 15% reservation for SCs, the same yardstick is applicable for the SCs in services under Article 16(4). Therefore, if the state makes reservation in the services as well as in promotions subsequently upto 15% by specifically mentioning in the Statement of Objects and Reasons of 77th Amendment Act that members of SCs and STs in opinion of the Government are NOT adequately represented it is wrong interpretation of the Hon’ble Supreme Court whereby by giving its erroneous decisions in Ajit Janjhua and M. Nagraj it has not only muddled in the findings of Mandal Commission which was upheld further by Indra Sawhney’s Judgement, it has violated the cardinal principles of constitutional jurisprudence and intention of founding fathers, spirit of Article 16(4) as well as opinion of the State.
Further, it is not out of place to mention here that 15% reservation has been provided for the SCs in the services since the advent of the constitution in 1950 through various executive instructions issued by the Government of India and by the different States, but still the minimum prescribed percentage of reservation even in the direct recruitment has not been achieved. If adequate representation in direct recruitment i.e. 15% have not been achieved after 7 decades of independence then how can there be over representation of SCs and STs if reservation in promotion is even allowed ! There are always back logs and vacancies meant for SCs which remain vacant.
Moreover, above the data has been produced which says and proves the inadequacy of representation of SCs and STs. ( For more study of the detailed empirical data regarding the inadequacy of representation please visit website of National Commission of Schedule Castes). Hence, it is absolutely clear that the representation of SCs and STs in states, central government services, UTs have not even reached the minimum required level. Keeping in the view the inadequacy of the representation in direct recruitment constitutional provision for reservation in promotion is a must.
3. Efficiency in Administration:- While considering the validity of constitutional (77th , 81st, 82nd and 85th ) Amendments, the Hon’ble Supreme Court in M.Nagraj Vs Union of India upheld constitutionality of the provision which was inserted by the aforementioned amendments, but impose certain conditions before the benefit is passed on to eligible members of SCs. It was made mandatory for the state to justify promotion in each case. This is a strange philosophy in which one has to give justification for the exercise of one’s fundamental rights.
V.T. Rajshekhar in his book “Merit my Foot”(A reply to Anti Reservation racists), 1996 published by Dalit Sahitya Academy, Bangalore has stated –“ Nowhere in the world ‘merit and efficiency’ are given so much importance as in India, which is now pushed to the 120th position virtually the last among different countries in the world.”
On the same point and while Ridiculing the right wing slogan of ‘efficiency’ Justice O. Chinnappa Reddy, in K.C. Vasanth Kumar VS State of Karnataka observes :-
“ Efficiency is very much on the lips of the privileged whenever reservation is mentioned. Efficiency it seems will be impaired if the total reservation exceeds 50%; efficiency, it seems, will suffer if the, ‘carry forward rule’ is adopted; efficiency it seems will be injured if the rule of reservation is extended to promotional posts, From the protests against reservation exceeding 50% or extending to the promotional posts or against the carry forward rule, one would think that civil service is a heavenly paradise into which only archangels, the chosen elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the Civil Services is not paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlining assumption that those belonging to the upper casts and classes , who are appointed to the non reserved posts will, because of their pre-assumed merit, ‘naturally’ perform better than those who have been appointed to the reserve posts that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of superior approach of the elitists classes.”
This ridiculing of that casteist mentality that consciously and unconsciously revolves in the collective consciousness of the people in India is apt and accurate. This phobia that reservation will somehow reduce the efficiency of the administration in itself is deliberately made and built up by certain sections of society for their ulterior motives or because of their undemocratic attitude. Hence further Justice Reddy writes –
“ ..Why not ask ourselves after 35 years of independence the position of SCs, etc has not greatly improved ? Is it not a legitimate question to ask whether things might have been different, had the district Administrators and the State and Central Bureaucrats drawing larger numbers from these classes? Courts are not equipped to answer these questions, but the courts may not interfere with the honest endeavours of the government to find the answer and solution.”
Hence, this is how the argument of M.Nagraj’s self made idea of collecting a ‘quantifiable data’ and Ajit Singh Janjua’s removing of consequential seniority from the concept of promotion in order to deny reservation in promotion fails miserably in view of Hon’ble Supreme Court’s earlier findings again and again. Moreover, how evident it is to observe that this attitude/notion that persons appointed or promoted through reservation will not be efficient, this in itself is a sophisticated form of castesim as well as the main reason and factor of maintaining the backwardness of the concerned communities in question. And in order to fight this notion reservation is given under Article 16(4) !
Need to consider change in the Statement of Objects and Reasons of 117th Amendment Bill :-
We, in brief have tried to highlight the major aberrations and blunders in various interpretations made by Hon’ble Supreme Court. We are of the humble point of view that the efforts made by Parliament sooner or later are bound to be victorious. Yet, as we have expressed that there is already enough empirical proof regarding the inadequacy of the representation of SCs and STs in the Government services, moreover, conceptually and in accordance with the principles of Indian constitutional jurisprudence the demand of proof regarding the backwardness of already trampled and exploited community for hundreds of years is not justified. Hence, we are of opinion that changes must be made in the third paragraph of the Statement of Objects and Reasons of 117th Amendment Bill which is reproduced here as under:-
“It has been observed that there is difficulty in collection of quantifiable date, showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, here is uncertainty on the methodology of this exercise.”
According to this paragraph mentioned in the bill the reason for not producing the empirical data is been mentioned as some practical problem and infact the real question at hand, the real philosophy and inherent mistake of the idea of proving the backwardness of SCs and STs is no dealt properly. Rather it seems it is been swept under carpet. We, on the other hand would like to deal the bull by its horns and the fact that the whole idea of proving the backwardness of the SC and ST community and proving its inadequacy is wrong interpretation of ‘equality before law’ (Article-14), it is individual specific, this is interpretation more in the light of Lockean individual equality than Indian version of equality which is only to be interpreted under the light of socialist character of our preamble.
Hence, we would propose that instead of shying away from the problem of collecting the quantifiable data it must be mentioned boldly that where class is backward as accepted again and again by Hon’ble Supreme Court in Indra Sawhney, individuals cannot be treated separately from that class in case of SCs and STs.
It is quiet conspicuous and clear that struggle against all that is unconstitutional, undemocratic and non-progressive is duty of every enlightened citizen of India. The struggle of founding fathers and framers of Constitution in favour of the oppressed, deprived and destitute is self evident. Hence, it becomes imperative for us as students, as youth and as fellow citizens to sharpen the struggle inside and outside the parliament of India in favour of the passage of 117th Amendment Bill.
We, Eklavya Sudents and Youth Association have made a humble effort and have tried to form an argument trying to cover the major principles of constitutional jurisprudence, interpretation of our founding fathers and have tried to highlight the anomalies and aberrations in the judgments of Ajit Janjua, Virpal Singh Chauhan and eventually M. Nagraj which have adversely affected the interest of members of SC and ST communities.
Therefore, we would like to present a powerful argument before the people of India in order to expose the conscious silence maintained by so called ‘progressive’ academicians, ‘secular’ media houses and especially the so called ‘liberal’ left. The fact that all these hegemonic sections of Indian society having deep roots in legislation, in judiciary and executive, they always brush aside these matters derailing the process of empowerment of the dalits of India affectively. We appeal to all sensitive and real progressive sections of India to favour and support the passage of 117th Amendment Bill while giving deep consideration on the changes in the language of 117th Amendment Bill so that it does not run again into some legal challenge as to its constitutionality, which has been done by various dominating sections from past 25 years. And we as ESYA also appeal to all the political parties of this nation to act unanimously and speedily in order pass this Bill.
-Advocate Sawinder Singh
Citation & Credits:-
National Commission of SCs/STs
Indra Sawhney Vs Union of India
M.Nagraj Vs Union of India
117th Amendment Bill