SC-ST Promotion Quota Bill The Bill at a Glance The cabinet committee of UPA II has given its assent

to the Constitutional Amendment Bill which deals with promotions in public employment of Schedule Castes and Schedule Tribes. The Bill was introduced in the Rajya Sabha where pandemonium broke out during the discussion as leaders of Bahujan Samaj Party (BSP) and Samajwadi Party (SP) took entirely different stands. Nearly all the political parties (except Samajwadi Party) have agreed on the need for the same, thus there is by and large a political consensus on the Bill. However, the constitutional amendment Bill if passed in the present format despite of the political consensus would be vulnerable to the scrutiny of the judiciary since as there are complex issues like basic structure of the constitution, social justice, reservation and administrative efficiency interwoven in the Bill. Background of the Bill In public employments, since 1955 there was provision for the promotions for SC/STs. Article 16 of the Indian constitution (which is also a Fundamental Right) deals with the Equality in Employment. Article 16(1) is related to equality of opportunity, Article 16(2) deals with anti- discrimination, and Article 16(3) talks about the special classification while Article 16(4) throws light on the affirmative action by the state. The quota for promotion of SC/STs since 1955 in public employments was based on the tenet of affirmative action as propounded by Article 16(4). In the famous Naina Sawhney and Others vs Union of India Case, 1992 (also popularly known as Mandal Case), the Supreme court gave the judgment which declared the quota for promotion of any kind in public employment as unconstitutional. In this case the Supreme Court observed that reservation of appointments or posts under article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion. The government in order to counter-balance the judgment of Supreme Court in Naina Sawhney case related to the quota of promotions of SC/STs came up with 77th Constitutional Amendment Act in 1995. This constitutional amendment inserted a clause 16 (4A) in the constitution which says: Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. The Supreme Court judgments in the Nagaraj case and subsequent cases that have upheld the bearing on reservation in promotion for the S.Cs and S.Ts as envisaged by 77th constitutional amendment act. Nevertheless the apex court also held that if the state considers it necessary to provide reservation, including reservation in promotion, it must show by data that the following conditions: 1. Compelling reasons 2. Backwardness 3. Inadequate representation in the services

The court has also laid down the following conditions: 1. 2. 3. 4. Exclusion of creamy layer Efficiency of administration required by Article 335 should not be compromised 50 per cent limit should not be breached Reservation should not be extended indefinitely

In nut shell the court held that the government could continue with the quota for promotion of SC/STs in public employment but subject to reasonable guidelines which must be supported by the quantifiable data.

Recent issues related to the Bill The issue came into the light when the previous Uttar Pradesh government headed by Mayawati provided reservation benefits for SCs, STs in promotions to higher posts in government jobs. The Allahabad High Court struck down the government decision. The Supreme Court on April 28, 2012 has upheld the High Court order and termed the state government decision as unconstitutional and done without any sufficient data. Thus the apex court has not termed the promotional quota of SC/STs per se as null and void but the reservation benefits by previous UP government as unconstitutional in the absence of any quantifiable data. The proposed bill by UPA II seeks to amend at least four articles of the constitution to enable the government to provide quota in promotions to SC/STs. It seeks to remove the term "inadequate representation", mentioned in Article 16 (4) to justify reservation in promotion and appointments, and also delink the term "efficiency of administration" from the claims of SCs/STs for jobs and promotions, mentioned in Article 335. Conclusion Nearly in all developing countries across the world there exists a tradeoff between social justice and efficiency (merit). India is no exception. The present controversy related to the promotion quota of SC/STs is also a manifestation of this trade off. Reservation (in any form) must be viewed as a means to attain a larger goal i.e. equality in the society. Nonetheless parochial compulsions in the electoral politics have made Reservation as a goal and not just a means. Thus Reservation as a means to gain political mileage and not as an instrument to achieve the Meta goal of equality would create more problems than the solutions in our society. Despite of the fact that there is a political consensus over this Bill, not just the critiques of the Bill but the topmost law officers of the Government are of the view that this Bill is very much vulnerable to judicial scrutiny. Any public policy (including this reservation Bill) which is not supported by quantifiable data is arbitrary in its character. Thus the Bill is passed in the present would not only create tensions in the socio-economic fabric but there are also high chances that parliament and judiciary as institutions can face the situation of grave disagreement.