THE CONSTITUTION (ONE HUNDRED SEVENTEENTH AMENDMENT) BILL, 2012

Synopsis

By

Mr. Vishal Ranjan

THE CONSTITUTION (ONE HUNDRED SEVENTEENTH AMENDMENT) BILL, 2012

The Government has moved the Constitutiona (one hundred seventeenth Amendment) Bill, 2012 to substitute clause (4A) of Article 16 of the Constitution of India, with a view to provide impediment-free reservation in promotion to the Scheduled Castes and the Scheduled Tribes. At the centre of the controversy is a judgment delivered by a two-judge bench of the Supreme Court in U.P Power Corporation Ltd. v. Rajesh Kumar in April 2012. It had already been held in M. Nagaraj v. Union of India (October 2006) that the state must demonstrate backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotions. However, what the U.P Power Corporation did  was to strike down reservation in promotions for not meeting these criteria.

 The Broad issues that arose for determination in Nagaraj case related to the Validity and Implementation of the Constitution (  77^th Amendment ) Act, 1995, the Constitution ( 82^nd Amendment ) Act, 2000, and the Constitution (85^th Amendment ) Act, 2001 .  The Hon’ble Supreme Court  observed that “ In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system” The court held that the impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not obliterate any of the constitutional requirements namely, ceiling limit of 50%, the concept of creamy layer, the sub qualification between OBC on one hand and SCs & STs on the other hand as held in Indra Sawhney, the concept of post based roster with in-built concept of replacement as held in R.K. Sabharwal.

While upholding the Constitutional validity of these impugned amendments, the Court observed: The impugned provisions are enabling provisions. The state is not bound to make reservation for SCs/STs in matter of promotion. However, if they wish to exercise their discretion the state has to collect quantifiable data showing backwardness, inadequacy of representation in addition to compliance of Article 335 which deals with maintaining efficiency.

In order to undone the judgment passed by the Hon’ble Supreme Court, this constitutional amendment has been moved professing that there is difficulty in collection of quantifiable 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. The presentation will critically analyse the constitutional validity of this constitutional amendment.