The government plans to amend the Constitution to enable reservations in promotions in government jobs. However, many say the move is likely to be struck down by the Supreme Court, again.
The question at hand is whether affirmative action is necessary, not just in recruiting people from Scheduled Castes (SC) and Scheduled Tribes (ST), but also during their promotion. While overtly supporting the issue, internally, the Bharatiya Janata Party is ambivalent on it. The Samajwadi Party is unreservedly against the move.
In an order striking down the Uttar Pradesh government’s plea to ensure reservation in promotions, the Supreme Court had recently asked the government to assess whether SC and ST categories needed this. In its order, the court referred to Article 335 of the Constitution, and mentioned “efficiency”.
In a preparatory speech at the all-party meeting on the issue of reservation, the prime minister recalled on November 16, 1992, in the case of Indra Sawhney, the Supreme Court had stated reservation in promotions was illegal, but had allowed its continuation for five years from the date of judgment, as that was a special case. The 77th and the 85th amendments to the Constitution gave the benefit of seniority to SC/ST candidates promoted by reservation, the prime minister said.
Indicating the government had done everything possible to actuate the principle of reservations in promotions without going against the Supreme Court order, Singh said special recruitment drives were launched to fill the backlog of vacancies reserved for candidates from the SC, ST and Other Backward Class categories. He said the 82nd amendment to Article 335 of the Constitution had enabled relaxations/concessions to SC/ST candidates for promotions.
Singh said in the M Nagaraj & others vs Union of India case, Nagaraj had argued the Union government’s efforts towards reservations for SC/ST categories for promotions were altering the basic structure of the Constitution. But K Parasaran who argued the case for the government, managed to win the case. However, the Supreme Court said if the state government wanted reservations for SC/ST categories for promotion, it had to collect quantifiable data showing backwardness of the class and inadequacy of its representation in public employment, in addition to compliance with Article 335.
After a meeting yesterday, the government had said it would bring about a Constitution Amendment Bill ‘notwithstanding any judgment of any court’ to ensure reservations in promotions. However, government sources say this is unlikely to pass muster legally, and would once again be found ultra vires.