"Caste"tution: Subversion of Indian Constitution

Political quick-fixes, as attempted through quota in promotion for SCs/STs, just to cling on to the vote banks are undermining the strength of the Indian Constitution and Parliament. This is for the reason, that legally speaking quota in promotion is still possible without resorting to Constitution amendment bill, if governments can satisfy three conditions laid down by the Supreme Court in the famous M. Nagraj case.

Amid the raging civil war in the America, it's said that Abraham Lincoln had locked himself in a library for about three weeks. Emerging out of it, he gave the famous Gettysburg address, which lasted two and a half minutes. There he explained the underlying principle of the democracy by stating it would be "for the people, by the people and of the people".

India too borrowed Lincoln's speech. But the political class in India over the years improved upon American's phrase into "by the caste, for the caste and of the caste".   

The political class in India shelters behind caste cover as a matter of habit. Late Prime Minister V. P. Singh was thrust upon at the center of polity without any base. But power is an opium with no parallel, so Singh mandalised Indian politics. This art remains in practice even now and resorted to in quite unapologetic sense. 

The UPA government at the Centre attempted to wriggle out of the serious loss of credibility in irregularities in allocation of coal-blocks and the subsequent Parliament logjam through another bout of caste politics. After calling an all party meeting, the UPA rushed through a Constitution amendment bill to ensure reservation in promotion for Scheduled Castes (SCs) and Scheduled Tribes (STs). The objective was less to do justice to SCs/STs and more to escape from public and Parliamentary scrutiny in colossal scam in allocation coal-blocks to firms with questionable credibility. The attempt has been a failure so far.

Let us take the legal journey on the issue of quota in promotion so far. In 1992 the Supreme Court consisting of nine judges bench decided Indira Sawhney case popularly known as Mandal Commission case by holding that Article 16(4) of the Constitution does not include reservation in promotional post and is confined only in the matter of appointments at the time of entry of the service.

Consequently in the year 1995, 2000, 2001 and 2002 there have been amendments in Article 16(4) and 77, 81, 82 and 85 amendments were carried out while Article 16(4A) was added in the Constitution. These measures led to introduction of  reservation in promotional post for SC/ST, while granting benefits of seniority on promotion to SC/ST. 

But later, the five judges bench of the Supreme Court in 2006 decided the case of M. Nagraj in which Constitutional amendments in Article 16(4)A and 16(4)B were upheld. However,  conditions were added in the judgement in the form of three important guidelines, namely; (a) Backwardness of a Class, (b) Inadequacy of representation in public employment of that class, (c) Overall efficiency in the administrative works.  These three pillars became conditions mandatory to make reservation in promotion as per the decision of M. Nagaraj case.

Later, various cases were filed in Allahabad High Court out of which one writ petition was filed in Lucknow Bench of Allahabad High Court and the matter went to the Supreme Court through UT Power Corporation Limited vs. Rajesh Kumar in 2011 and the two judges bench of Allahabad High Court decided the case on April 27, 2012. They held "in the ultimate analysis we conclude and hold that section 3(7) of the 1994 Act and rule 8A of the 2007 rules are ultra vires as they run counter to the dictum in M. Nagraj judgement". 

Clearly, the Uttar Pradesh government, which had introduced the notion of consequent seniority through various rules had failed to follow three guidelines set by the Supreme Court. 

If a state government can satisfactorily answer these three conditions they can still give quota in promotion. But this will entail rigorous job of data collection, which the political class wants to run away from for fear of getting exposed. This is the reason why the UPA wants another Constitution amendment to quick-fix problems detrimental to its caste based politics.

In the all party meeting the Samajwadi Party mentioned the curious case of the state irrigation department where all the four posts of the superintendent engineers were held by members from the SC class, thus closing the window for other engineers to advance in their career.   

In normal parlance, promotion in any job should be based on performance. But India is the only country where one can get into a job and get further promoted due to the caste he or she has been born into. While entry into jobs on the basis of caste has not yet been challenged by any political party, the promotion part has seen vertical split in most of the parties, with people being vocal against it.  

Though the move to amend the Constitution to give quota in promotion to SCs/STs came in an attempt to silence the Opposition baying for the blood of the UPA leadership for "coalgate" scam, this quota bill is most likely to meet the fate of the Women's reservation bill. A regular noise followed by a long spell of silence.