Saturday, September 08, 2012

The skewed debate over reservation in promotions

            There was indeed a cynical design behind the hastiness with which the UPA Government introduced the Constitution Amendment Bill to circumvent the Supreme Court’s decision that reservation for the Scheduled Castes and Tribes in promotion in Central Government services. The Congress party sought to position itself as the champion of the rights of the SCs and the STs apart from putting the BJP on the dock in a context where the principal opposition party was bent upon disrupting Parliament on the issue of the coal block allocation.
            The Samajwadi Party, now willing to play the hatchet job for the Manmohan Singh regime, apart from falling into the trap, also found in the game an opportunity to consolidate its own backward caste constituency. It is a fact that Mulayam Singh Yadav, notwithstanding his claims to represent the Lohiaite legacy, has only rested himself upon perpetuating the traditional antagonism between the intermediate castes and the SCs in the socio-political scene that has marked the discourse in the Gangetic plains. Lohia had pulled all the stops to strike a unity between the OBCs and the Scheduled Castes. He was, in fact, engaged in a substantial dialogue with B.R.Ambedkar, sometimes in 1955-56 towards this. It is a matter of fact that Ambedkar’s death in 1956 led to the demise of that project.
            That Mulayam Singh Yadav picked up that agenda when he struck an alliance between his own party and the BSP in November 1993 had raised a lot of hopes. The alliance, in the aftermath of the anti-Mandal consolidation in the region, had the potential for a realisation of Lohia’s agenda. But all that came to an end when the two parties snapped ties and ended up remaining adversaries soon. And the ugly scene on the floor of the Rajya Sabha on September 4, 2012, is certainly a sad commentary.
            There is, however, another dimension to the debate that is now raging, on TV channels and the media in general that warrants attention. The rage against the idea or reservation in government jobs, marked by a phoney concern for efficiency and merit, is at best ill-informed and indeed inimical to the concerns of Constitutional Democracy. The lead question raised is: Let there be reservation at the entry level; but why for promotions; and where will this stop?
            At the outset, it will have to be stated that the concession for reservation at the entry level arises out of a grudging acceptance that it makes sense to accept a reality that reservations have come to stay. This grudge is evident from the second part of the question; the fact is that those from the SCs and the STs land up a job in the government, thanks to the reservation scheme, only when they are many years older than those belonging to castes that have had access to higher education for over the years and for many generations. The story of Ekalavya, who was denied admission into Drona’s academy, but excelled in the art of archery despite having to learn the skill himself, and that Drona asked for his thumb only because he saw the scare in Arjuna’s eyes after realising the fact that Ekalavya was a better archer than him, is far too well known.
            The point is that the SCs and the STs were denied access to education for several hundred years and that makes them take longer to crack examinations conducted by the UPSC is a reality. And because they enter the services late in their life, they do not have the luxury of seniority at the entry level and hence end up superannuating long before they qualify (by way of seniority and not merit) to be eligible for promotion to the highest echelons of the bureaucracy. In other words, members from among the SCs and STs will not end up as Secretary or Chief Secretary to the Government, or even to the next rung below, without reservation in promotions.
And as for the third part of the question, the fact is that it was only after a Government Order in 1984, that posts reserved for the SCs and the STs shall not be denotified and thrown open for the others on the ground that eminently qualified candidates not coming from among them, that the reservation scheme at the entry level came to be implemented meaningfully. And the forces of status quo are already restless and are desperate to put an end to one of the Constitutional imperative. The fact is that they do not consider the reservation they enjoyed, thanks to Manu’s prescription and achieved through Drona’s scheme, for a few thousand years, as long enough to be brought to an end!
            Interestingly, the Supreme Court had thought otherwise all these years. The apex court did not strike down the First Amendment to the Constitution. Clause 4 of Article 15, inserted only in order to overcome the hurdles placed by the Supreme Court in the Champakam Dorairajan case (AIR-1951-0-SC-226) against reservation to the SCs in institutions of higher learning. The apex court did not grudge. The amendment, as a whole, was upheld in the Shankari Prasad Deo case (AIR-1951-0-SC-458). In other words, a serious lacuna in the Constitution that had turned into a hurdle in the road to social revolution was set right by way of the Constitution (First Amendment) Act, 1951; and interestingly this was done by all those who made the Constitution.
            The point is that it is not for the first time that a decision by the apex court is sought to be changed by a Constitution Amendment. And in this instance, the apex court held reservation in promotions as valid under the Constitution. Justice S.H.Kapadia, speaking for the four others in the Constitution Bench, in the Nagaraj and Others vs Union of India and Others (AIR-2007-SC-71) case, had only added that Article 16(4-A) and (4-B), inserted by way of Constitution Amendments are valid insofar as the Constitutional scheme is concerned. The judges only added that the Government shall establish, by way of facts, that the representation of the Scs and the STs in the higher echelons of the bureaucracy is far too less than it must be and that this goal can be achieved only with reservation in promotions.
            The Government could have established this fact if proof was at all needed and thus legitimised the idea of reservation in promotions. Cynicism overtook reasoning. Be that as it may. The fact is that Justice Kapadia and his brother judges in the bench had extrapolated on the idea of equality in the Nagaraj case. In doing so, they distinguished between equality in law from equality in fact; and the learned judges underscored that they construed Article 16(4) as one where equality in fact as its objective. Let us concede that and stop grudging a measure that is indeed a Constitutional imperative.   


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