117th Constitution Amendment Bill, 2012- Efficiency and adequacy of the State Administration
Reservation as a concept is very wide. Different people understand reservation to mean different things.
• One view of reservation as a generic concept is that reservation is anti-poverty measure.
• There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal.
Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.
ON CONCERN OF EFFICIENY/MERIT
The words
• ‘consistently with the maintenance of efficiency of administration’
under Article 335 of the Constitution of India are capable of being read differently though have not been so read by the courts so far.
• In a mixed and diverse society as in India, representation of all sections of society in different walks of life creates an integral and, therefore, efficient society.
• Accordingly, representation of SC/STs which constitute about 24.4% as per Census 2011 of the total population of the country and whose representation in the State administration is small, if not totally absent, will lead to efficiency in the administration.
• So, the intention of the constitution makers directed that in consistency with the goal of maintenance of efficiency of administration of SC/STs must be duly represented in the State administration.
• It may also be argued that active inclusion of about such percentage of population into the category from which the administrators have to be selected creates wider choice must naturally lead to selection of better administrators.
• Thus the words ‘consistently with the maintenance of efficiency of administration are not the words of limitation but of guidance that in order to ensure
maintenance of efficiency of administration the claim of SC/STs must be taken into consideration in making the appointments to services and posts qua the affairs of the Union and the States.
On Nagraj Case and Article 335 of the Constitution
As per the present case,
the perquisite under Article 335 is ‘efficiency’, though originally it is “consistently with the maintenance of efficiency of administration”.
To understand the very concept efficiency in light of socio-economic empowerment of SC/STs some excerpts from the Nagraj Case are as follows “….
Article 335 is to be read with Article 46 which provides that
the State shall promote with special care the educational and economic interests of the weaker sections of the people
and in particular of the scheduled castes and scheduled tribes and shall protect them from social injustice.
Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs.
These compelling interests however have to be identified by weighty and comparable data.”
The Court, however recognizes that,
“it is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation….
in other cases, the State may evolve a mechanism under which efficiency, equity, and justice, all three variables could be accommodated.
Further, the Courts admission that
determination of efficiency of administration lies with the State is highly supportive of the claims of the SCs and STs under Article 335.
However, it has been observed that there is difficulty in collection of quantifiable/comparable data showing backwardness of the class and inadequacy of representation of that class in public employment.
Moreover,
there is uncertainty on the methodology of this exercise, due to lack of established common practice to collect such information.
Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case,
the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are being adversely affected.
In State of U.P. v. Dina Nath Shukla, the Court also observed that
“Thus Article 335 read with Articles 46, 38 and 16 would
give the socio-economic empowerment to the Dalits and Tribes and rule of reservation in the matter of appointment to a service or post under the State
is part of the constitutional scheme as a positive facility and opportunity available to them and where it is extended to OBCs., they too get opportunity to strive to improve excellence in a service or a post in which he or she gets appointment.”
The proviso to Article 335 i.e.
added by the 82nd Constitutional Amendment, 2000, that, …..nothing in this article shall prevent in making any provisions in favor of SC/STs for relaxation in qualifying marks in any examination….
Clarifies that for inducting the SC/STs candidates of State services, the required qualification may be relaxed… Thus adequate representation is given priority over other considerations as expressly mentioned from time-to-time.
Therefore, it is out of the box to reiterate that the concern of efficiency lies at the heart of objections to quota s in promotion.
When it comes to ‘efficiency’ especially of the down trodden of the society in India, who are fighting from thousands of years for their rights, should it not be the responsibility of the State to make them efficient.
In present scenario, it would not be out of the place to assert that even proportional reservation of 70% for SC/STs would be very much constitutional under Article of 14 of the Constitution.
ON EMPIRICAL BATTLE AND 117TH CONSTITUTIONAL AMENDMENT BILL, 2012
Let’s examine the proposed amendment in Article 16 (4A) through 117th Constitutional Amendment Bill, 2012, so the proposed substitution for the later is as follows,
“(4A) Notwithstanding anything contained elsewhere in the Constitution,
the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively,
shall be deemed to be backward and
nothing in this article or in article 335 shall prevent the State
from making any provision for reservation in matters of promotions, 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 to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”.
Once the proposed substitution of Article 16 (4A) will come in to force, it will do away with all perquisites under present Article 16 (4A) of
“not adequately represented in the services under the state”, of ‘efficiency’ Article 335, and also of Nagraj case.
However it doesn’t mean that it would violate the principle of equity, justice and efficiency as laid down under Article 14, 16, 335 and others.
The proposed amendment seeks to bring more lucidity in the scenario of promotion, seniority and catch up rule prevailed so long in government services.
Gone were the days when Article 16(4) was read by the Hon’ble Supreme Court as an exception to Article 16(1).
That controversy got settled in Indra Sawhney v. Union of India case.
The words “nothing in this Article” in Article 16(4) represents a legal device allowing positive discrimination in favour of a class. Therefore,
Article 16(4) relates to “a class apart”. So, on this basis, as much anticipated that the proposed 117th Amendment
would not stand the test of validity under basic structure of the constitution on the account of adequate ‘representation’ and ‘efficiency’,
it would not be wrong to state it so much valid under the Constitution of India.
(Mr. Manish Raj is B.A. LL B(Hons.) from National Law Institute University and an Ex-Senior Officer(Legal),Coal India Ltd.)
Reservation as a concept is very wide. Different people understand reservation to mean different things.
• One view of reservation as a generic concept is that reservation is anti-poverty measure.
• There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal.
Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.
ON CONCERN OF EFFICIENY/MERIT
The words
• ‘consistently with the maintenance of efficiency of administration’
under Article 335 of the Constitution of India are capable of being read differently though have not been so read by the courts so far.
• In a mixed and diverse society as in India, representation of all sections of society in different walks of life creates an integral and, therefore, efficient society.
• Accordingly, representation of SC/STs which constitute about 24.4% as per Census 2011 of the total population of the country and whose representation in the State administration is small, if not totally absent, will lead to efficiency in the administration.
• So, the intention of the constitution makers directed that in consistency with the goal of maintenance of efficiency of administration of SC/STs must be duly represented in the State administration.
• It may also be argued that active inclusion of about such percentage of population into the category from which the administrators have to be selected creates wider choice must naturally lead to selection of better administrators.
• Thus the words ‘consistently with the maintenance of efficiency of administration are not the words of limitation but of guidance that in order to ensure
maintenance of efficiency of administration the claim of SC/STs must be taken into consideration in making the appointments to services and posts qua the affairs of the Union and the States.
On Nagraj Case and Article 335 of the Constitution
As per the present case,
the perquisite under Article 335 is ‘efficiency’, though originally it is “consistently with the maintenance of efficiency of administration”.
To understand the very concept efficiency in light of socio-economic empowerment of SC/STs some excerpts from the Nagraj Case are as follows “….
Article 335 is to be read with Article 46 which provides that
the State shall promote with special care the educational and economic interests of the weaker sections of the people
and in particular of the scheduled castes and scheduled tribes and shall protect them from social injustice.
Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs.
These compelling interests however have to be identified by weighty and comparable data.”
The Court, however recognizes that,
“it is for the State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation….
in other cases, the State may evolve a mechanism under which efficiency, equity, and justice, all three variables could be accommodated.
Further, the Courts admission that
determination of efficiency of administration lies with the State is highly supportive of the claims of the SCs and STs under Article 335.
However, it has been observed that there is difficulty in collection of quantifiable/comparable data showing backwardness of the class and inadequacy of representation of that class in public employment.
Moreover,
there is uncertainty on the methodology of this exercise, due to lack of established common practice to collect such information.
Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case,
the prospects of promotion of the employees belonging to the Scheduled Castes and the Scheduled Tribes are being adversely affected.
In State of U.P. v. Dina Nath Shukla, the Court also observed that
“Thus Article 335 read with Articles 46, 38 and 16 would
give the socio-economic empowerment to the Dalits and Tribes and rule of reservation in the matter of appointment to a service or post under the State
is part of the constitutional scheme as a positive facility and opportunity available to them and where it is extended to OBCs., they too get opportunity to strive to improve excellence in a service or a post in which he or she gets appointment.”
The proviso to Article 335 i.e.
added by the 82nd Constitutional Amendment, 2000, that, …..nothing in this article shall prevent in making any provisions in favor of SC/STs for relaxation in qualifying marks in any examination….
Clarifies that for inducting the SC/STs candidates of State services, the required qualification may be relaxed… Thus adequate representation is given priority over other considerations as expressly mentioned from time-to-time.
Therefore, it is out of the box to reiterate that the concern of efficiency lies at the heart of objections to quota s in promotion.
When it comes to ‘efficiency’ especially of the down trodden of the society in India, who are fighting from thousands of years for their rights, should it not be the responsibility of the State to make them efficient.
In present scenario, it would not be out of the place to assert that even proportional reservation of 70% for SC/STs would be very much constitutional under Article of 14 of the Constitution.
ON EMPIRICAL BATTLE AND 117TH CONSTITUTIONAL AMENDMENT BILL, 2012
Let’s examine the proposed amendment in Article 16 (4A) through 117th Constitutional Amendment Bill, 2012, so the proposed substitution for the later is as follows,
“(4A) Notwithstanding anything contained elsewhere in the Constitution,
the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively,
shall be deemed to be backward and
nothing in this article or in article 335 shall prevent the State
from making any provision for reservation in matters of promotions, 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 to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”.
Once the proposed substitution of Article 16 (4A) will come in to force, it will do away with all perquisites under present Article 16 (4A) of
“not adequately represented in the services under the state”, of ‘efficiency’ Article 335, and also of Nagraj case.
However it doesn’t mean that it would violate the principle of equity, justice and efficiency as laid down under Article 14, 16, 335 and others.
The proposed amendment seeks to bring more lucidity in the scenario of promotion, seniority and catch up rule prevailed so long in government services.
Gone were the days when Article 16(4) was read by the Hon’ble Supreme Court as an exception to Article 16(1).
That controversy got settled in Indra Sawhney v. Union of India case.
The words “nothing in this Article” in Article 16(4) represents a legal device allowing positive discrimination in favour of a class. Therefore,
Article 16(4) relates to “a class apart”. So, on this basis, as much anticipated that the proposed 117th Amendment
would not stand the test of validity under basic structure of the constitution on the account of adequate ‘representation’ and ‘efficiency’,
it would not be wrong to state it so much valid under the Constitution of India.
(Mr. Manish Raj is B.A. LL B(Hons.) from National Law Institute University and an Ex-Senior Officer(Legal),Coal India Ltd.)
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