(September 2012)
A new debate has emerged on the Indian newscape: Should there be quota in promotions? Incidental to the debate is the legal question: Will the constitutional amendment introduced in the Parliament pass the test of judicial scrutiny? I don’t intend to discuss the second question except to express a prima-facie view that there wouldn’t be any challenge to the Basic Structure of the Constitution by introducing promotions in jobs for the SCs/STs; the logic is simple: the courts wouldn’t look into the discretion of the Legislature to designate the SCs/STs as backwards, and, other than this, there won’t be any challenge to the Basic Structure in reference to the M. Nagaraj case (Re: M. Nagaraj v. Union of India (2006 (8) SCC 212); download from http://indiankanoon.org/doc/102852/).
However, the real question, i.e. the first question, is clearly a political question. I have heard two sets of alleged material facts, which I believe to be true: First that there are no or negligible SCs/STs in the secretary level posts in the ICS, and, second that the SCs/STs generally join the services very late with a time gap of around 5-6 years to the general candidates. The ramification of the two facts is that the SCs/STs never reach the highest administrative grades.
I think there are no further relevant issues in the present debate. The SCs/STs have a genuine grievance that they are not represented in the higher echelons of the decision making, and, therefore, in spite of all the reservation benefits they get, they don’t get to influence the decision making at the policy level — though it’s another question whether an administrative officer should even be trying to influence the policy making given they are not supposed to make policy decisions as that’s the work of the ministers; however, we all know how the Indian system works, and what competitiveness the ministers bring to the table.
At the same time, there is also an issue of reverse discrimination. The SC, in its wisdom, held in the M. Nagaraj case that “Catch-Up” and “Consequential Seniority” don’t form part of the Basic Structure. However, that doesn’t mean that the Legislature will completely ignore it. There ought to be some guidelines for promotions and “Consequential Seniority”; these just can’t be caste based promotions and “Consequential Seniority”, as is intended to be done. With respect to the challenge of equality, the logic of the SC judgment was that the two contradictory issues of affirmative action and reverse discrimination would get settled while ensuring controlling factors of backwardness and inadequate representation, which were held to be contextual to be determined on case-to-case basis in the light of the available data; the word “data” is very important because now the “data” is being replaced by the “common opinion” of the Legislature, which, as already stated, won’t be scrutinized by the courts within our existing constitutional scheme.
I think, in the current monsoon session, the Legislature doesn’t represent the “general will” of the citizens of India with respect to “quota in promotions” because the parliamentarians are not debating but fighting; people in India are sane enough not to entrust the expression of their “general will” to such hooligans; the Parliament is in “Paglapur” state these days.
The best thing for the parliamentarians will be to take a break, go for a picnic, and, may be, flirt with each other — better than flirting with the trust of the people.
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