Criterion for identifying SCs was untouchability, not social backwardness: It is continuing to this day

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Letter to Thaawar Chand Gehlot, Union Minister for Social Justice & Empowerment, by PS Krishnan, IAS (Retd), Former Secretary to Government of India, Ministry of Welfare, on the need for Constitutional amendments necessary post-Supreme Court judgment dated September 26, 2018 on Reservation in promotion for SCs and STs:

The judgment of 26. 09. 2018 by a Constitution Bench of the Supreme Court in the case regarding Nagaraj conditonalities for Reservation in Promotion for SCs and STs removed one problem that was hampering implementation of reservation in promotion for SCs and STs. The judgment has held quantifiable data showing backwardness is not required in the case of SCs and STs for reservation in promotion and to this extent overruled the Nagaraj judgment, though the reasons for this does not go to the roots of the original error.

There are the following other issues in this judgment which will continue to create difficulties in smoothly and rapidly fulfilling the Constitutional objective of securing Equality, in this case adequate representation for SCs and STs in the promotional posts. These are:

Creamy Layer

The term is misleading. The correct term used in the Mandal case judgment is “Socially Advanced Persons/Sections” (SAP/S) of castes identified as Socially and Educationally Backward Classes (SEdBCs). The criterion for identification of SCs and STs was not “backwardness”, or more precisely “social backwardness”. It is only the Socially and Educationally Backward Classes for whom the criterion of identification was “social backwardness”, accompanied by educational backwardness also.

The criterion for identification and specification of SCs was “Untouchability”, which is far more debilitating than “social backwardness” and has been historically continuous to this day. In other words, the Schedule of SCs is a list of castes which have been and are the victims of “Untouchability”.

The criteria for identification and specification of STs were tribal organization of society as distinct from caste-based social organization, remoteness, isolation and other tribal characteristics. In other words, the Schedule of STs is a list of tribes and not castes – note the deliberate omission of the word “caste” in Article 342 – of tribes possessing specific tribal characteristics.

It is only in the case of those identified and listed on the basis of social backwardness – accompanied by educational backwardness – , namely, the SEdBCs, the question of individuals or sections ceasing to be socially backward and becoming “socially advanced”, often loosely referred to a “Creamy Layer”, can arise. This cannot arise in the case of those identified on the basis of “Untouchability” and tribal identity. The only legitimate question that can be put in the case of SCs is whether any individual or section has ceased to be viewed by society as “Untouchable”.

“Untouchability” is far more pernicious and far more persistent than “social backwardness”, i.e., far more difficult for individuals and sections to cease to be free from the stigma of “Untouchability” than to become free from “social backwardness”. An example of this relates to the unveiling of a statue of Dr Sampoornanand, former Chief Minister of Uttar Pradesh, by Jagjivan Ram, who is the SC individual to occupy the most powerful position, more powerful than that occupied by any other SC individual till now. He was a Union Minister from the Interim Government stage onwards for many decades and was Deputy Prime Minister in the Government headed by Shri Morarji Desai. After he left, inspite of his eminence, Dr Sampoornand’s statue was washed with Ganga Jal. I know of other instances of SC individuals who have risen to high positions, but whom the caste society has not released from the stigma of “Untouchability”.

Similar, mutatis mutandis, is the position regarding STs.

In the case of SCs and STs, unless policies and programmes, and their implementation, raise the level of whole communities to the level of forward communities in every respect – occupational, economic, educational etc. etc. –, it is impossible and unthinkable that individuals can escape the stigma of “Untouchability” or the stigma attached to tribals.

This aspect apparently could not be placed before Bench clearly and could not be brought home to the Bench.

It is necessary to put this basic aspect beyond doubt and scope for arguments in future.

Percentage of Reservation in Promotional Posts

In view of certain observations – not directions – in the above judgment about percentage of reservation in promotion, it is necessary to lay down that the percentage of reservation shall be the proportion of SCs and STs, respectively, in the population of the country in the case of Central Government posts and Central Government-related posts and their proportion in the population of the respective States in the case of State Government posts and State Government-related posts.

The bogey of “Efficiency of Administration” in relation to SCs and STs    

The present judgment continues to treat the subordinate phrase “consistently with the maintenance of efficiency of administration” in Article 335 as though it is the principal clause and treat the mandatorily-worded principal clause as though it is the subordinate clause. It also continues to use this term in a manner which implies that presence of SCs and STs will be adverse to efficiency of administration, ignoring the fact that the SCs and STs who are promoted will be only those who have prescribed qualifications and the prescribed qualifying period of service, and only those SCs and STs are promoted whose record does not show that they are unfit to be promoted and, therefore, there cannot be any danger to efficiency of administration on account of SCs and SCs or on account of their promotion.

This too needs to be put beyond doubt and dispute in future.

Quantifiable data showing inadequacy cadre-wise

This implies that if in a promotional cadre the percentage of SCs and STs has reached the prescribed percentage/population-proportion-equivalent level, reservation cannot be continued in that cadre. This will create a problem similar to that which was caused by a judgment of the Allahabad High Court in 2017 in a BHU-related case, directing that each Department in a University/Educational Institution should be taken as the unit for reservation in the faculty, against which the Ministry of HRD has at last filed an appeal in the Supreme Court and, as I understand, has initiated the proposal for an Ordinance.

This, therefore, should not be allowed, though our ultimate goal is to see that reservation proportion of SC and ST presence is achieved in each cadre.

It is also necessary to protect that part of the Order, which was issued in 1997 by the DoPT, prescribing that similar single posts be combined and bunched together to enable reservation.

In addition, there is also the observation in Nagaraj that reservation should not be continued indefinitely, and the relegation of reservation to an option at the discretion of the Government, both of which have been left untouched by the present judgment. This can cause problems in future.

These problems have arisen on account of lack of clarity all-round about identity and criterion of identification of SCs, the identity and criterion of identification of STs, and the identity and criterion of identification of SEdBCs and mixing up all of them under the omnibus term “backward”, and lack of clarity regarding the Constitutional mandate of Equality.

Therefore, there is need for Constitutional Amendments which will remove all these problems without ambiguity, and which will ensure that there is no scope for different interpretations and legalistic arguments or at least minimize such scope and facilitate the achievement of the Constitutional goal of Equality, in this case the smooth progress without impediments and obstacles to the goal of ensuring that SCs and STs reach their population-equivalent percentage in all promotional posts in every cadre and every level.

I enclose herewith a copy of the draft Constitution Amendments, which I had prepared in 2012 and sent to the then Union Minister for Social Justice Shri Mukul Wasnik on 14.06. 2012. They did not receive due attention at that time. Now after the judgment of 26.09.2018, these Constitutional Amendments become unavoidable and need to be taken seriously. I am sending them now to you so as to facilitate starting, without delay, of thinking and drafting of the Constitutional Amendments.

I have made some modifications in these draft Amendments in the light of certain subsequent developments, and taking into account the recommendations of the National (Justice Venkatachaliah) Commission for Review of the Working of the Constitution (2002), which was set up by the Government headed by Vajpayee and whose Report was handed over to the then Law Minister Arun Jaitley.

Some further additions will have to be made in the light of the decision regarding “Creamy Layer” in the judgment of 26. 09. 2018. The wording of the Amendments will have to be such that Governments, while implementing reservation in promotion, will not have to carry the burden of interpretation in the courts. The text of the Constitution Amendments should be such that they speak for themselves if and when they are challenged. Whatever is not possible to put in the text of the Amendments should be brought out in a Preamble and in the SOP.

In view of the importance of this matter and of the Constitutional Amendments, and the wide concern among SCs and STs about reservation in promotion, I am circulating these among them and among their organizations and others working for their legitimate rights, who are in touch with me. If I receive any suggestion from them, I shall examine them and furnish them to you. Meanwhile, work may be started on these Amendments now itself and processed in time for them to be moved and got passed in the Winter Session 2018.

The Constitution (One Hundred and Seventeenth) Amendment Bill, which was passed in the Rajya Sabha, but not moved in the Lok Sabha, and has since lapsed after the expiry of the 15th Lok Sabha, is inadequate, and now also pointless as the above judgment has done away with the need for quantifiable data showing “backwardness” of SCs and STs, though the reasoning on the basis of which this was done is not robust enough.

I shall be happy to be of any help in formulating and drafting adequate and clear Constitution Amendments.

Posted in Law

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