Should there be quota in promotions in jobs? Incidental to this debate is another 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 quota in promotions in jobs for the schedule caste (SC) and the schedule tribe (ST). 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.

However, the real question, i.e. the first question, is actually political one. 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 Indian Civil Services (ICS). 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 ramificatipn 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. Therefore, inspite 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 as policy making is the work of 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 supreme court 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 should 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.

With respect to the challenge of equality, the logic of the supreme court judgement was that the two contradictory issues of affirmative action and reverse discrimination would get settled while ensuring controlling factors of backwardness and inadequate representation. The two were held to be contextual to be determined on a case-to-case basis in the light of 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 present legislature doesn’t represent the general will of the citizens of India because the parliamentarians are not debating but fighting. The people in India are sane enough not to have not entrusted 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 on a picnic, and, may be, flirt with each other — better than flirting with the trust of people.

©2012 Ankur Mutreja