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Journalism of Courage
The Constitution Ninetieth Amendment Bill (adding Clause 4B to Article 16) had an easy passage during the last session of Parliament. Justifiably because it fulfilled a felt need to fill a backlog of vacancies in posts reserved for Scheduled Castes and Scheduled Tribes which could not be filled by direct recruitment for want of candidates belonging to these classes.
But the Constitution Eighty-eighth Amendment Bill 1999 (still pending) ought never to have been introduced: it provides for a lowering of qualifying marks and of standards of evaluation for reservation for Scheduled Castes and Schedule Tribes even in matters of promotion, at all levels. This would necessarily put a premium on sloth and inefficiency in the higher echelons of administration and make a mockery of merit in all government services, which is the linchpin of all good governance.
When explaining the effect and purport of Article 335, way back in 1962 and, again in 1967, successive Constitution Benches of the Supreme Court said that efficiency of administration was “a matter of paramount importance.”When in November 1992, nine Justices of the Supreme Court held in Indra Sawhney vs. UOI that equality of opportunity in employment under Article 16 applied only at the initial stage of recruitment in government services, and not in promotions, the response of Parliament (in its constituent wisdom) was to insert clause 4A in Article 16 by the Constitution (Seventy-Seventh Amendment) Act 1995, with effect from June 17, 1995.
This clause enabled the state (i.e. the Union and state legislatures) to make any provisions for reservations in favour of Scheduled Castes and Scheduled Tribes even in matters of promotion. This was, perhaps, understandable, especially since this was not to be across the board in all posts and all services, but to be applied only to such class or classes of posts in the services “which in the opinion of the state are not adequately represented in the services under the state”, that is, not in fact adequately represented, though initially intended to be.
The amended provision Article 16 (4A) was read by a Constitution Bench of five Justices of the Supreme Court, in September 1999 in Ajit Singh’s (II) case as not empowering the state to impair the maintenance of the efficiency of administration in the services, which had been safeguarded by Article 335. The court said that the founding fathers were conscious that a special provision for reservation was necessary to see that the backward classes of citizens were adequately represented in the services; and the primary purpose of Article 16(4) and the newly inserted Article 16(4A) was to give due representation to the reserved classes in certain posts.
“However we must bear in mind”, (the court went on) “not to ignore the other provisions viz. Article 14, (the equality clause), Article 16 (the non-discrimination in employment clause) and Article 335”.
It was in the teeth of this caution that on December 23, 1999, the government introduced in the Rajya Sabha, the Constitution Eighty-Eighth Amendment Bill. The Bill sought to add a proviso to Article 335:“Provided that nothing in this article shall prevent (in) making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”
This proposal of the government is destructive of one of the essential safeguards for good governance in our Constitution:
First, because the proposal undermines the principle that it is the services that run all governments; and good government means efficient governments. The proposal also destroys the delicate balance maintained in the conspectus of constitutional provisions affecting the services viz. Articles 14, 16 and 335, and the philosophy underlying these provisions.
Second, because it attempts to expressly override and set at naught the considered view of a nine-Judge Bench of the Supreme Court in Indra Sawhney’s case (November 1992), and the later decision of a Bench of two Justices in Vinod Kumar’s case (October 1996), holding that whilst it may be permissible to prescribe reasonably lesser qualifying marks or lower standards of evaluation for OBCs, SCs and STs in the matter of direct recruitment, lesser qualifying marks or lower standards of evaluation could not be countenanced at all at the stage of promotions.
Third, because it nullifies (without even an apparent conscious awareness of doing so) the latest judgment of a Constitution Bench of the Supreme Court in the case of Ajit Singh II (of September 1999).
Whilst Parliament, acting in its constituent capacity, is empowered to override decisions of the highest court on an interpretation of the Constitution, this can only be done for good, and substantial reasons and for overriding public interest: the only justification offered (in the statement of objects and reasons) for the dilution of Article 335 (by adding a proviso to it) is that “representations have been received from several quarters including members of Parliament”; which, it is submitted, is totally inadequate to wipe out authoritative pronouncements of the country’s apex court on constitutional provisions of great moment (viz. articles 14, 16 and 335).
No expert body and no committee of Parliament, has opined, when balancing the fiercely competing claims of equality, backwardness and good administration, that the warning of the Supreme Court, as to the ill-effects of relaxation in qualifying marks or lowering standards of evaluation for reservation in matters of promotion, should go unheeded; no such body or committee after due consideration has said that the apprehensions expressed were a “mere smokescreen” for perpetuating inequalities of opportunity in matters of employment under the state; nor has any expert body concluded that the views of the Justices need to be reversed in the larger public interest stage in the country’s development, the efficiency of government administration at all levels has to be toned up, not wound down.
The writer is an eminent lawyer
