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Reach of reservation
THE BILL PASSED by the Lok Sabha in order to fortify reservation in promotions for employees belonging to the Scheduled Castes and Scheduled Tribes is also an important legislative effort that explicates the more substantive implications of the provision of positive discrimination in public employment under Article 16(4) and 16(4A) of the Constitution. As spelt out in the 77th Amendment enacted in 1995, in addition to providing reservation for posts to Scheduled Castes and Scheduled Tribes in state services, such quotas should also be extended to matters of promotions. The operative principle here is that of ensuring adequate representation to these communities at various levels. In other words, if equality of opportunity is to be realised, it should be done from the time of recruitment to all the subsequent stages. Such an interpretation could hardly be faulted in view of the persistence of discrimination at the work place and the bogey of non-performance and efficiency raised in connection with reservation. The present legislation is especially significant considering that notwithstanding the 77th Amendment, the Supreme Court has ruled against applying the principle of reservation in relation to promotions.
Although a number of Government circulars dating back to the 1970s have held the domain of promotions to be an appropriate arena to extend reservation to the Scheduled Castes and Scheduled Tribes, the subject has nevertheless continued to be deeply contested. What has given rise to increased litigation over the years is the indeterminate nature of the criteria that govern promotions. Seniority, departmental examination, direct recruitment or a combination of these which make up the criteria are not always well-defined and engender deep resentment among different caste and community groups of employees. Judicial interpretations in given disputes have by no means been uniform. But the ruling of the Supreme Court in the landmark Mandal Commission recommendations case against reservation in promotions held considerable sway in the 1990s, even though the question received only cursory treatment in that judgment.
Viewed from a different standpoint, contestation over the validity of reservation in the area of promotions is ironically a vindication of the policies of positive discrimination pursued in the last five decades. For instance, the need to legislate on a proposal such as the one currently under active consideration of Parliament could not have been anticipated at a time when the Scheduled Castes and Scheduled Tribes had no representation in employment. On the contrary, evidence of pockets of deep resistance - as with respect to promotions - reinforces the traditional arguments for policies of compensatory discrimination. While the Dalits and the Adivasis have achieved remarkable progress in the realms of education and employment, the record on their representation has by no means been even in the arenas of state, public sector and autonomous institutions, where reservation is operative. The case for extending positive discrimination to decide promotions rests squarely on the need to give adequate representation to these communities in the higher echelons of public policy-making. To that extent, the principle has come to be defined not narrowly as an avenue for the creation of employment, but as a means of ensuring the equal and full participation of these communities in the task of nation-building. It is in carrying forward this underlying spirit in the 77th Amendment that the future of weaker sections could be secured.
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