Reservations In Promotions.
Provision of reservation for the SC/ST/OBC category in the field of promotion in public employment continues to be a long ranging topic of argumentative discourse, receiving quite a mixed response in terms of both vehement opposition as well as strong support. With the untold tale of reality unfolding itself every day and creating a visibly detrimental impact on the social fabric of India, we are faced with a barrier that is hard to define but even harder to remove. While the Constitution of India provides for certain special privileges to the apparently downtrodden sections of the society, also known as the Scheduled Castes and Scheduled Tribes, the history of this contentious and politically debatable question traces long back. While it was initially extended to a period of ten years from the date of enactment of the constitution of the country, subsequent developments have witnessed a continuing extension of this ten year period, following the lapse of the previous time frame. The real history of this entire concept (read: political movement) traces back to the times before the colonial regime, when castes were classified on the basis of the occupation and ranked accordingly. During the British reign, it was proposed that the Scheduled Castes be treated as a separate community altogether and granted separable representation under the provisions of the Government of India Act of 1935. The Sardar Vallabhai Patel spearheaded Constituent Assembly Committee on Fundamental Rights and Minorities proposed this ten year assessment and action period, during which questions of welfare governance were to be addressed , for the purpose of “ upliftment” of the socially downtrodden. The problem that has stood as the tremendous impediment to the fulfillment of the actual purpose of what is a noble move per se, has been its rampant politicization, thereby threatening to affect the entire structure present within the domain of public services. The recent Hundred and Seventeenth Amendment Act of 2012( after the 1995 amendment),substitutes the previously existent clause (a) in subsection4 of the sixteenth article in the form of Bill Number XLVIII is what many, including myself, view as the final nail on the coffin of the efficiency of our public services. As per the constitutional substitution, full authority has been delegated to the State in reserving posts at the time of promotion as well, irrespective of the provisions under Article 335. This, of course, applies to only the public sector.
The broad range of policies and actions that have been designed to promote social equality have mostly revolved as well as evolved around the fact that a “level playing field” must be provided to those categories of people who have long been deprived of certain basic social and political rights. Affirmative action policies, promoting intentions of good governance have, however, failed to address the main issue and have therefore led to a number of grass root level errors. .This essay shall deal with exactly how the entire setup is going to be adversely affected by providing reservation at the promotion level in public services. Questions of the dichotomy within the law in relation to scientific principles have also been addressed in the same.
One of the primary arguments against this category of reservation that must be appreciated is what is also known as the “mismeasurement of merit”. Critics of affirmative action argue that affirmative action circumvents merit. However, the presence of implicit bias can produce discrimination by causing the very basis of evaluation, merit, to be mismeasured. This insight reframes certain affirmative action programs not as “preferential treatment” but as an opportunity for more accurate measures. The fundamental question that arises at this particular juncture is whether the means of ensuring social justice can be executed in a fashion that would cause gross injustice to another section of society. If ensuring justice is the real goal of a particular move or policy, then that cannot possibly be at the cost of injustice on another front. However, sadly, that is exactly what would happen if quotas were to exist at the promotion level in public services. Every form of service in this world has a particular set structure. Irrespective of their difference on various fronts, there exists one common feature- you may climb up the ladder only if you deserve to climb up the ladder. Even if one agrees to the provision of quotas at the time of recruitment or entry, there exists absolutely no rational basis of argument to provide for reservation at the time of promotion as well. Yes, providing for a level “ playing field” is in order, but once this has been provided, it must be only the talent of the individual that would have to be the ultimate indicator of worth, not the caste or the class. The stand taken in Janaki Prasad Parimoo vs. State of Jammu and Kashmir (Hereafter, Janaki) confirmed the idea that the tendency was always to give more preference to less meritorious individuals, simply basing the judgment criteria on caste. It is this very idea that will not only hinder our performance, but also make people doubt the validity and quality of our public services. While addressing questions of good governance, we speak of “fair measures” of ensuring social justice. By “fair”, we mean the presence of the moral intuition that excludes unwarranted discrimination. Hence, by executing this form of reservation, the system is being rather unfair, in the strict sense of the word, on two fronts. Firstly, the implicit bias within the system itself, in terms of the enforcement of social stereotypes is being greatly upheld and there is no sense of justice, anywhere. Affirmative action policies are there not to make life irrationally comfortable for the socially downtrodden, but to give them the basic platform to rise, to make a point. If this really is the intention, then by providing for reservation even at the time of promotion, we abandon all forms of fairness and structural rationale as such.
It is only logical to put forward the argument that almost every form of social stereotype is being enhanced, or being enforced, by a policy that does not allow the socially downtrodden to fend for themselves, to rise without external policy aid. I somewhere get the feeling, that the policy makers of our country doubt the efficiency of the concerned people. And it is because of this doubt, that they get the feeling that even at the time of promotion, they would not possess the required skill or talent to get through to the next level. If the positive discrimination policy was not designed to garner the minority votes, then why, logically speaking, would we doubt the fact that these individuals have capacity like any other, to rise up the ladder? If we were to assume that the motive behind reservation was to bridge the existing social gap between categories of people, then we would certainly not accept that policy as dynamic, democratic and egalitarian that instead of bridging the gap, widens it. People are more or less conscious of the differences in caste or class that exists in society and would, in all probability be inclined towards moves that would eradicate such thinking. However, the policy that reserves posts even at the time of promotion, either highlights the tremendous extent to which the capabilities of these people are doubted or the extent to which vote bank politics is played in our country. This system is not just unfair for those at whose cost it is being implemented, but also to those benefitting from it, by virtue of its inherently discriminatory nature. The real impediment to an effective programme, designed to implement the course of action of a reasonably sound policy (affirmative action) has been the shortcuts employed by the government. Instead of sowing seeds of disunity between social categories, the government must focus on addressing the issue of “backwardness” at a very basic level. If this country has enough money to stash away in the banks of Switzerland, then it can and it has to come up with schemes that promote the spread of free and compulsory education for all, at least up to the age of fourteen. In this way, society would move a step forward towards restructuring itself, instead of destructuring it. We live in a society, whose members have already been badly hit by policies of poor governance. If amending constitutional provisions was the key to the attainment of our welfare state objective, then India would have been the world’s strongest nation by now, at least in terms of overall efficiency. However, that still is a rather distant dream. Historical wrongs need to be corrected. There is general agreement on that front. However, this cannot be done at the cost of efficiency, good governance, fairness, reasonability and justice.
The civil services in our country deal with promotions, primarily on the basis of seniority and tenure in that particular service. If such a peculiar and ridiculous reservation policy was to be put in to force, then the entire setup would collapse like a pack of cards. For instance, dealing with the norm of consequential seniority, the rule was followed that a reserved candidate may be promoted on the basis of the roster system prior to a general candidate, but as the general candidate is promoted, he supersedes the reserved candidate who was his junior.
This is what was happening initially, but was promoted earlier than him because of reservation policy, and the status quo that existed prior to promotion of reserved candidate will be maintained in terms of seniority. This made the constitution to be amended 85th time and in clause (4A) of Article 16 terms with consequential seniority were added, a concept that was held unconstitutional in R.K Sabharwal vs. State of Punjab. This is nothing but blatant evidence of the fact that the policy makers of this nations seems to be giving second priority to the talent or the merit and focusing instead, on the number of people who can be pleased, something which in crude terms, is called vote bank politics. It is in fact, this menace which the judge pointed out in the landmark Vasant Kumar case. The anti- meritorious nature of this format of reservation (in promotion) can also be analyzed from the arguments raised in Balaji vs. State of Mysore, where this nature of reservations was assumed.
. This intrinsic structure is what has inherently bound the services together, the efficiency of which is now precariously on the line. In S. Vinod Kumar v. Union of India( Hereafter, Vinod Kumar), the Supreme Court held that under the light of Article 335, efficiency of administration has to be maintained and standards could not be relaxed or waived to afford the protection of reservation. This made the Constitution to be amended for the 82nd time and a new provision was inserted under Article 335 that standards can be relaxed to accommodate reservation. If such is the lack of concern or sensitivity of the leaders of India, then can we really expect to make much real progress?
A country that boasts of being the largest democracy, also boasts quite highly of the excellence of their public services. If we do want to maintain a certain amount of legitimacy in this claim, then it automatically becomes our prerogative to ensure that only the best people hold the best posts. The efficiency of the public services is something that determines the global output of a country, among several other important factors. If this level of efficiency is to be maintained, then we cannot possibly have quotas even during promotion, as that would hinder basic good governance and in turn destroy the entire setup. If 8 IAS officers are to be promoted during a particular period of time, then it must be known as the promotion of 8 IAS officers, not 3 SC and 5 General officers. At a time when politics seems to be over ruling logic, it seems to be a rather uphill task to deconstruct the rationale of the entire system and address it properly, all over again. However, it certainly is better to be late, than never.
Dealing further with the question of governance, such a policy is bound to create a sense of complacency within the minds of those who come within its ambit. If a particular group of people know of the existence of such a provision, then, by virtue of possessing the characteristics of any normal human being, they would get the feeling that they needn’t work as hard as the others, to reach the top. It is this sense of complacency and unwarranted assurance that is just so very dangerous to the performance of the services as a whole. In a developing country like ours, where we need every working individual to put in his/her best, such feelings cannot be entertained. This entire setup has a very negative impact on the minds of the general category candidates, since it is but natural for them to feel that it’s practically of no use putting in much effort, considering the extreme levels of competition becoming even more difficult and perhaps illogical with the introduction of mindless quotas at every level. It is imperative for us to think about the global image that must be maintained for a country that fancies its chances of being one of the five permanent members of the United Nations Security Council. If we add to the already tarnished image of being a country full of quotas and not talent, then what chances do we really have?
The protection of the interests of the country comes first, not those of a caste or class. When the Gujjar Meena clashes had broken out at the backdrop the recommendations of the Chopra Committee, denying the rights of Gujjars to be included as Scheduled Tribes, this country witnessed blatant evidence of the immense sentiment involved in the entire process, the side effects of which are detrimental to the national stability. By adopting a move as dangerous as that of reserving posts at the time of promotion, the policy makers are just going another step forward in inviting a situation of anarchy to take over. The reservation policy operates on the quota system, which works the way the legendary Greek innkeeper Procrustes used to fit all guests into the bed he had. If they were too short, he stretched their limbs; if they were too long; their limbs were cut to size. Politicians have found that strategy so profitable that they have steadily extended it to more and more castes.
In the bargain reservation has increased social tensions, and reduced social harmony. Those in favour of reservation treat that loss of harmony as collateral damage, a damage that is unavoidable and worth suffering because only the privileged upper castes are affected. It is commonly believed that a democracy thrives on the wants and expectations of its citizens. If this really is the case, then why, at the cost of the happiness, careers and legitimacy would the policy makers wish to make such a move?
Coming now to what is possibly THE most important question, is this vote- bank politics and if it is, then how does it affect governance? Keeping in mind the fact that the achievement of social justice is not the prerogative of any single seat of power but the society as a whole, the application and execution of the constitutional provisions of reservation must fall within the ambit of power of the legislative organs of the state, not the executive. If such discretion is given to the executive, then it is bound, by virtue of well proven records, to invite corruption into the system. A similar contention was made in Comptroller and Auditor General vs. Mohan Lal Mehrotra. The rules made under Article 309 of the Indian Constitution, mention the appointment of posts as those falling within executive authority. If this is what is to continue, then the public services, which need to be free from the holds of the dirty Indian corruption, will not be spared. Once this happens, the entire public sector performance would simply collapse, as we have already seen on a number of different fronts.
As has been mentioned earlier, the country has failed to undertake the accurate moves in order to remedy the situation. There are various models of affirmative action, including the Korenizatsiia, (Rastsvet), (Sblizhenie) and (Sliianie), which have been movements reflecting a great deal of success in Soviet Russia. A similar success was noted in East Germany. While the early policies of the United States of America, with reference to their initial executive orders had failed, corrective measure were undertaken to make way for a truly egalitarian social fabric. This is precisely what India needs to do. Giving enough time to come up with newer and more pragmatic models will alter and better the situation, not hasty governance.
To address this entire argument in just one article, is a rather uphill challenge. However, I have made a conscious effort to assimilate and accumulate my limited understanding of the issue and put it together in this document. Answering the questions raised by the nine judge bench in the Indra Sawhney Case, is not very easy, considering our varied socio- political set up, but the least that the leaders of our great motherland can do, is to at least consider possible alternatives. The public services are our pride. They must not die.
“If our political progress was to be real, the underdogs of our society
must be helped to become men”
About The Author-
Devarshi Mukhopadhyay is a 2nd Year student of NALSAR University of Law, Hyderabad.