Ignoring the opinions of its senior-most law officers,the Union Cabinet today approved removal of one of the three pre-conditions set by the Supreme Court allowing quota for Scheduled Castes and Scheduled Tribes in promotions only if there is empirical evidence to support it.
The UPA Cabinet approved amendments to Article 16(4) of the Constitution that will allow states to reserve seats in promotion for SCs,STs without collecting data to show the backwardness of class and the inadequacy of that class in public appointments.
The amendment Bill is expected to be moved in the Rajya Sabha tomorrow.
Notwithstanding anything mentioned elsewhere in the Constitution,the Scheduled Castes and Scheduled Tribes notified under Article 341 and 342 respectively shall be deemed to be backward and nothing in this article or Article 335 shall prevent the state from making any provision for reservation in matters of promotion… in favour of Scheduled Castes and Scheduled Tribes, says the amendment.
A Constitution bench of the Supreme Court had earlier held that states could provide reservation only if compelling reasons existed. Its only when these reasons are satisfied that a state gets power to provide for reservation in matters of employment, it had said.
The reasons cited by the Department of Personnel & Training (DoPT) for amending the article with retrospective effect from June 17,1995 was that there was difficulty in collection of the data as well as uncertainty on the methodology of this exercise. This will infuse greater confidence in the minds of SCs and STs, it said.
At the Cabinet meeting today,there was no alternate view expressed on the amendment Bill. Barring the Samajwadi Party (SP),all the other parties too had supported the move at an all-party meeting called by Prime Minister Manmohan Singh on August 21.
However,two days later,on August 23,Attorney General G E Vahanvati had cautioned that the courts view in M Nagaraj Vs Union of India case not only relates to the basic structures of the Constitution but also the fundamentals of equality.
Backwardness,inadequacy of representation and overall administrative efficiency of the state were fundamental and essential considerations set by the court,he said. Existence of these factors,according to the Court,represent conditions precedent for making reservations. The proposed amendments may be vulnerable to challenge on the ground that the basic structure is violated, he said.
He was reiterating the stand taken by his predecessor Milon Banerjee on April 2,2007. Rules regarding reservation in promotion in each service and at each level need to be relooked so that the constitutional parameters as laid down by the Court are satisfied, Banerjee had said.
Interestingly,the UPA government rushed through the entire affair with the draft Cabinet proposal sent to different departments on August 27 to submit their comments last Sunday. None of the seven departments could send their comments at such short notice but that did not deter the DoPT from pushing the final Cabinet note yesterday.
Meanwhile,BSP chief Mayawati,who has been at the forefront of the demand,welcomed the Cabinet decision. She even met Leaders of Opposition Sushma Swaraj and Arun Jaitley to seek the BJPs support in ensuring passage of the Bill in this session.