Alternative draft amendments required to protect reservation in promotion of SCs and STs

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The letter by PS Krishnan (IAS retired), former secretary, Ministry of Welfare, to Thaawar Chand Gehlot, Union minister for social justice and empowerment, on draft Constitutional amendments required to protect reservation in promotion for SCs and STs:

You are aware of the importance of the above case for the SCs and STs and for the cause of Social Justice and Social Equality.

I enclose herewith a Note of my analysis of the Nagaraj Judgment and points and arguments to be raised in the Written Statements to be by 21.07.2018 and in arguments before the Court on 3rd August 2018 and subsequent dates, if adjourned.

Kindly consider taking this up with the Attorney General and briefing him so that these important points do get raised.

In case this will take too long, kindly consider getting legislation passed in the present Monsoon session itself to get over the conditionalities, irrelevant to the SCs and STs, laid down in the Nagaraj judgment.

A Constitutional Amendment got passed by the previous Government in the Rajya Sabha, but not moved in the Lok Sabha, is inadequate to solve the problem. I enclose herewith my alternative draft of constitutional amendments. This can be taken as a base and further improvements can be made.

I shall be happy to provide any further information, help or guidance with regard to these and any other issue for the successful conduct of the case by the Government on behalf of the SCs and STs and/or in the final drafting of the Constitution Amendment in order to get it passed in the Monsoon session.

***

Article 16(4A) be amended as follows and renumbered as 16 (5A) [because I am suggesting lower down introduction of a new 16 (4A) in continuation of the existing 16(4)]:

16 (5A): (i) Notwithstanding anything in this article or in article 335 or in any other article in the Constitution, the State shall make provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services in favour of the Scheduled Castes, who have been classified and specified on the criterion of subjection to untouchability with all its ramifications of all-round deprivation, discrimination and disadvantage, and Scheduled Tribes, who have been classified and specified on the criterion of isolation under vulnerable tribal conditions with all its ramifications of all-round deprivation and disadvantage, both of which in the opinion of the State, are not adequately represented in the services under the State, and in particular in posts which are filled by promotion; and such reservation shall be the fundamental right of Scheduled Castes and Scheduled Tribes until

(a) their representation, at all levels of the services in each cadre, reaches the proportion equivalent to their proportion in the population of the country, in the case of the services under the Union of India and of the respective States of the Union in the case of the services under the States of the Union; and

(b) until the State enables the Scheduled Castes and Scheduled Tribes to become capable, through open competition, of maintaining the level of representation mentioned at (a); and

(c) untouchability and vulnerable tribal isolation and all their consequences completely disappear and the Scheduled Castes and Scheduled Tribes reach the level of equality with the Socially Advanced Castes, i.e., non-Scheduled Caste, non-Scheduled Tribe, non-Backward Class castes in all parameters of development and welfare.

(ii) There shall be no limit of the level of posts upto which reservation in promotion in favour of SCs and STs will operate.

(iii) The State shall identify promotional levels of services for which adequate number of qualified candidates of SCs and STs are not available and take planned steps to create an adequate pool of qualified candidates of Scheduled Castes and Schedule Tribes for each such promotional level and during such period the carry forward rule of filling up such vacancies in subsequent years of recruitment shall exist.

(iv) (a) Notwithstanding anything in this article or in article 335 or any other article in the Constitution, the State shall make provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation of qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion in any class or classes of services or posts in connection with the affairs of the Union or of a State, to the extent necessary to ensure that posts reserved for the Scheduled Castes and Scheduled Tribes are filled up completely by Scheduled Castes and Scheduled Tribes.

(b) Without abridgement of the fundamental right of the SCs and STs in reservation in promotion under sub-clause (i) of Clause (5A) of this article, the State shall, prior to and / or subsequent to promotion, establish well-designed coaching, training and orientation programmes for Scheduled Castes and Scheduled Tribes as well as others in order to remove any deficiency and maintain efficiency of administration.

Explanation: Efficiency in administration shall be understood essentially as ability to expeditiously resolve problems or contribute to the resolution of problems faced by the people in general and particularly people who suffer any form of deprivation.

Article 16 (4B) be renumbered as Article 16 (5B) and amended as follows:

Notwithstanding anything in this article or in article 335 or in any other article of the Constitution, the State shall consider any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (5A) as a separate class of vacancies to be filled up in the succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year and it shall be the fundamental right of the Scheduled Castes and Scheduled Tribes that this carry forward rule shall operate until their representation, at all levels of the services in each cadre, reaches the proportion equivalent to their proportion in the population of the country, in the case of the services under the Union of India and of the respective State of the Union in the case of the services under the States of the Union and until the other conditions specified in (5A) (i) are fulfilled.

Article 335, the principal clause of which is mandatorily worded, be amended as follows and be brought to Part-III as new Article 16 (4) applicable to SCs and STs, and the existing Clause 16(4) with amendments be renumbered as Clause 16(4A) and be made applicable to Socially and Educationally Backward Classes only as proposed in para 4 below:

16 (4): (i) Notwithstanding anything in this article or any in other article in the Constitution, the State shall make provision for the reservation of appointments or posts, filled up by direct recruitment, including such posts filled up by deputation or contract or in any other manner except promotion, in favour of Scheduled Castes, who have been classified and specified on the criterion of subjection to untouchability with all its ramifications of all-round deprivation, discrimination and disadvantage, and Scheduled Tribes, who have been classified and specified on the criterion of isolation under vulnerable tribal conditions with all its ramifications of all-round deprivation and disadvantage, both of which, in the opinion of the State, are not adequately represented in the services under the State, in the proportion of not less than the existing percentages of reservation provided for them, and such reservation shall be the fundamental right of members of Scheduled Castes and Scheduled Tribes until

(a) their representation, at all levels of the services in each cadre, reaches the proportion equivalent to their proportion in the population of the country, in the case of the services under the Union of India and of the respective States of the Union in the case of the services under the States of the Union; and

(b) until the State enables the Scheduled Castes and Scheduled Tribes to become capable, through open competition, of maintaining the level of representation mentioned at (a); and

(c) untouchability and vulnerable tribal isolation and all their consequences completely disappear and the Scheduled Castes and Scheduled Tribes reach the level of equality with the Socially Advanced Castes, i.e., non-Scheduled Caste, non-Scheduled Tribe, non-Backward Class castes in all parameters of development and welfare.

(ii) Notwithstanding anything in this article or in article 335 or any other article in the Constitution, the State shall make provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation of qualifying marks in any examination or lowering the standards of evaluation, for reservation in any class or classes of services or posts in connection with the affairs of the Union or of a State, to the extent necessary to ensure that posts reserved for the Scheduled Castes and Scheduled Tribes are filled up completely by Scheduled Castes and Scheduled Tribes.

The existing Clause (4) of Article 16 be renumbered as Clause (4A) and amended as follows to make it applicable to the Socially and Educationally Backward Classes only:

16 (4A): (i) Notwithstanding anything in this article or in Article 335 or any other article in the Constitution, the State shall make provision for reservation of appointments or posts filled up by direct recruitment, including such posts filled up by deputation or contract or in any other manner except promotion, in favour of any Socially and Educationally Backward Classes of citizens, who have been identified on the basis of social backwardness, that is, low position in the traditional caste hierarchy and linkage with traditional occupations considered to be lowly, which, in the opinion of the State, is not adequately represented in the services under the State, and such reservation shall be the fundamental right of the Socially and Educationally Backward Classes of citizens until

(a) their representation, at all levels, to which reservation is provided, of the services in each cadre, reaches the percentage of reservation fixed for the Socially and Educationally Backward Classes;

(b) until the State enables the Socially and Educationally Backward Classes to become capable, through open competition, of maintaining the level of representation mentioned at (a); and

(c) their social backwardness or educational backwardness comes to an end and they reach the level of equality with the Socially Advanced Castes, i.e., non-Scheduled Caste, non-Scheduled Tribe, non-Backward Class castes in all parameters of development and welfare.

(ii) Notwithstanding anything in this article or in article 335 or any other article in the Constitution, the State shall make provision in favour of the members of the Socially and Educationally Backward Classes for relaxation of qualifying marks in any examination or lowering the standards of evaluation, for reservation in any class or classes of services or posts in connection with the affairs of the Union or of a State, to the extent necessary to ensure that posts reserved for Socially and Educationally Backward Classes are filled up completely by them.

Article 15(4) be amended as follows:

15(4): Notwithstanding anything in this article or in Clause (2) of article 29 or in any other article of the Constitution, the state shall make all special provisions, necessary, in the opinion of the State, for the advancement of any Socially and Educaitonally Backward Classes of citizens or for the Scheduled Castes and the Scheduled Tribes

Article 15(5) be amended as follows:

15(5): Notwithstanding anything in this article or in sub-clause (g) of Clause(1) of Article 19 or in any other article of the Constitution, the State shall make all special provisions, by law, necessary, in the opinion of the State, for the advancement of any Socially and Educationally Backward Classes of citizens or for the Scheduled Castes and the Scheduled Tribes, in so far as such special provisions relate to their admission to educational institutions, whether aided or unaided by the State other than the minority educational institutions referred to in clause (1) of article 30.

New Article be inserted as follows:

14 (A): (i) Social Equality, i.e., Equality for Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes with the Socially Advanced Castes, i.e., non-Scheduled Caste, non-Scheduled Tribe, non-Backward Class castes in all parameters of development and welfare and in all fields, such as economic; educational at all levels; health, nutrition and infant and child survival-related; housing and residential areas facilities-related, etc, shall be recognised as a basic feature of the Constitution and part of the basic structure of the Constitution.

(ii) The entire gamut of Social Justice measures, including reservation, which shall be undertaken by the State for achieving Social Equality as at (i) above shall also be recognised as a basic feature of the Constitution and part of the basic structure of the Constitution.

Posted in Law

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