Sunday, September 09, 2012

Concerns with the 117th Constitution Amendment Bill on Reservations in Promotions

In this post, I intend to build on my preliminary response to the 117th Constitution Amendment Bill that appeared as an op-ed in The Hindu. Amongst all the points that P.S Krishnan has made in his article in the Frontline, my only serious disagreement with him is on his position that the State need not empirically demonstrate inadequacy of representation as far as SC/STs are concerned. I also respond to the argument of certain commentators that reservations in promotions is problematic because we have ensured equality of opportunity by providing reservations in initial appointments.

I have no hesitation in stating that I am in favour of reservations in promotions. However, I think it is essential for the State to take certain measures to attach an essential degree of legitimacy to these measures.  I do believe that that the proposed amendment of Article 16 (4A) takes us further away from that aim and the Government must reconsider the text of the amendment, perhaps even its necessity.

I have tried to capture the constitutional evolution of this controversy in my piece in The Hindu and will not be repeating it here. In response to the Supreme Court's decision in Nagaraj and the U.P Power Corporation, the text of the 117th Constitution Amendment Bill proposes three significant changes to Article 16 (4A) as it currently stands:

i) SCs and STs notified under Articles 341 and 342 are explicitly deemed to be backward.

Readers will remember that in Nagaraj the Supreme Court had (erroneously, I believe) held that every time the State wanted to provide reservations in promotions to SC/STs under Article 16 (4A), it would have to demonstrate the backwardness of the beneficiaries. It was a rather strange ruling by the Supreme Court given the Supreme Court's repeated assertion that the concept of 'creamy layer' does not  apply to SC/STs. It would be rather shallow to argue that creamy layer should be inapplicable to SC/STs because the Supreme Court said so. But the problem in Nagaraj was that the Court was ignoring its own earlier rulings on this issue.
The issue of internal differences amongst the SC/STs cannot be addressed in the same manner as it is for the OBCs. The nature of the two groups are vastly different and the 'creamy layer' test is ill-suited for application amongst the SC/STs because it fails to address issues of recognition which is at the heart of the discrimination against SC/STs. The basis on which these two groups, SC/STs and OBCS, were created are normatively different and it would not make any sense to apply the same test of exclusion to both groups. It would not make any sense because what we are trying to remedy with these two groups are very different things. The error in Nagaraj on this point must be formally recognised not only because it has failed to follow precedent, but also because it seeks to bring in an wholly ill-suited test in the current context. 

ii) Removing efficiency as a concern

The proposed amendment states nothing in Article 335 can prevent the State from providing for reservations in promotions. The Supreme Court has relied heavily on Article 335 to incorporate concerns of efficiency into the discourse on reservations and I do not think this was a wise by the Government. It should have instead argued for a more meaningful understanding of efficiency where reservations are seen as furthering efficiency rather than hindering it. The amendment proposed on this point is a tacit acknowledgment by the Government that it concedes the efficiency argument but it is over-ruling that concern in the interest of social justice and inclusion. Arguments challenging the dominant discourse on efficiency must be developed and the Government seems unwilling to embrace that challenge. A thicker understanding of efficiency is what the State must advance in order  to question the conservative foundations of the Court's efficiency discourse. Instead it seems to have chosen the easier but less legitimate way out. If this proposal is indeed what goes through Parliament, it will undoubtedly be challenged before the Supreme Court. The question, then, is whether the Court would be willing to raise the reference to efficiency in Article 335 to being a part of the basic structure.
While the approach of the Supreme Court to efficiency in the context of reservations in public employment has been rather simplistic, the State has chosen to ignore that argument and rely on concerns of social inclusion. While the State might be faulted for not sufficiently engaging in evidence-based policy making as far as issues of adequacy of representation is concerned, the Court's position that efficiency is severely compromised by reservations in promotions has been merely an assertion, not based on strong normative foundations or empirical evidence.

iii) Inadequacy of Representation

The proposed amendment has no reference whatsoever to inadequacy of representation and clearly the attempt is to remove it as a consideration. Mr. P.S. Krishnan also seems to support the position that the State need not empirically demonstrate inadequacy of representation of SC/STs. I disagree with such an approach not because I think that the claims of inadequate representation are false. Though there has been no exhaustive study spanning all employees of the Central and State Governments, there have been indicative studies that point towards gross inadequacy. Despite that, I think the State must present the comprehensive data to the courts and the country to legitimise reservations in promotions. It must put forth a strong positive claim for reservations in promotions by demonstrating the extent of of marginalisation that exists in the higher levels of public employment. 

Reservations in Initial Appointments as Equalising Opportunity

Some commentators on this issue have argued that reservations in initial appointments does the job as far as equalising opportunity in public employment is concerned. I, frankly, do not see the basis of this argument in light of clear empirical evidence to the contrary. The evidence that is available on this issue strongly indicates that the presence of SC/STs in the higher rungs of public employment is abysmal. The Government must settle this issue with a thorough analysis of the composition of central and state level employees. Given that it is difficult to seriously question the lack of presence of SC/STs, the claim that we have ensured equality of opportunity by providing reservations in initial appointments is rather hollow. In the very least, (as Anne Phillips has argued) the equality/inequality of results must be used to test the claims of equality of opportunity. 
There is very little automatic progression through the hierarchy of public employment with different rules for different cadres -- some emphasise progression mainly through seniority while others use merit-cum-seniority as their basis. Even rules that use only seniority, there are subjective elements in play like reports on work and conduct, evaluation of complaints against employees etc. The equalisation argument is essentially based on a false premise.

Note: I would also like to point out the decision of the Supreme Court in Suraj Bhan Meena v. State of Rajasthan (December 2010) -- where a 2-judge bench struck down two notifications of the Rajasthan Government for not having undertaken the exercise mapped out in Nagaraj, especially the failure to demonstrate inadequacy of representation. 
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