117th Constitutional Amendment Bill Text – Promotion quota

Bill Text Const 117th Amendment Bill 2012 (PDF)

THE CONSTITUTION (ONE HUNDRED SEVENTEENTH
AMENDMENT) BILL, 2012
A
BILL
further to amend the Constitution of India.
BEit enacted by Parliament in the Sixty-third Year of the Republic of India as
follows:—
1.(1) This Act may be called the Constitution (One Hundred Seventeenth Amendment)
Act, 2012.
(2) It shall be deemed to have come into force on the 17th day of June, 1995.
2.In the Constitution, in Part III, in article 16, for clause (4A), the following clause
shall be substituted, namely:––
“(4A) Notwithstanding anything contained elsewhere in the Constitution, the
Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342,
respectively, shall be deemed to be backward and nothing in this article or in article
335 shall prevent the State from making any provision for reservation in matters of
promotions, with consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled Tribes
to the extent of the percentage of reservation provided to the Scheduled Castes and
the Scheduled Tribes in the services of the State.”.

Edit: The previous clause 16 (4A) post the 85th Amendment reads thus

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

Amendment
of article 16.
AS INTRODUCED IN THERAJYASABHA
Bill No. XLVIII of 2012
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STATEMENT OF OBJECTS AND REASONS
The Scheduled Castes and the Scheduled Tribes have been provided reservation in
promotions since 1955. This was discontinued following the judgment in the case of Indra
Sawhney Vs.Union of India, wherein it was held that it is beyond the mandate of Article 16(4)
of the Constitution of India. Subsequently, the Constitution was amended by the Constitution
(Seventy-seventh Amendment) Act, 1995 and a new clause (4A) was inserted in article 16 to
enable the Government to provide reservation in promotion in favour of the Scheduled
Castes and the Scheduled Tribes. Subsequently, clause (4A) of article 16 was modified by
the Constitution (Eighty-fifth Amendment) Act, 2001 to provide consequential seniority to
the Scheduled Castes and the Scheduled Tribes candidates promoted by giving reservation.
The validity of the constitutional amendments was challenged before the Supreme
Court. The Supreme Court while deliberating on the issue of validity of Constitutional
amendments in the case of M. Nagaraj Vs.UOI & Ors., observed that the concerned State
will have to show in each case the existence of the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency before making provision
for reservation in promotion.
Relying on the judgment of the Supreme Court in M. Nagaraj case, the High Court of
Rajasthan and the High Court of Allahabad have struck down the provisions for reservation
in promotion in the services of the State of Rajasthan and the State of Uttar Pradesh,
respectively. Subsequently, the Supreme Court has upheld the decisions of these High
Courts striking down provisions for reservation in respective States.
It has been observed that there is difficulty in collection of quantifiable data showing
backwardness of the class and inadequacy of representation of that class in public
employment. Moreover, there is uncertainty on the methodology of this exercise.
Thus, in the wake of the judgment of the Supreme Court in M. Nagaraj case, the
prospects of promotion of the employees belonging to the Scheduled Castes and the
Scheduled Tribes are being adversely affected.
Demands for carrying out further amendment in the Constitution were raised by
various quarters. A discussion on the issue of reservation in promotion was held in Parliament
on 3-5-2012. Demand for amendment of the Constitution in order to provide reservation for
the Scheduled Castes and the Scheduled Tribes in promotion has been voiced by the
Members of Parliament. An All-Party Meeting to discuss the issue was held on 21-08-2012.
There was a general consensus to carry out amendment in the Constitution, so as to enable
the State to continue the scheme of reservation in promotion for the Scheduled Castes and
the Scheduled Tribes as it existed since 1995.
In view of the above, the Government has reviewed the position and has decided to
move the constitutional amendment to substitute clause (4A) of article 16, with a view to
provide impediment-free reservation in promotion to the Scheduled Castes and the Scheduled
Tribes and to bring certainty and clarity in the matter. It is also necessary to give retrospective
effect to the proposed clause (4A) of article 16 with effect from the date of coming into force
of that clause as originally introduced, that is, from the 17th day of June, 1995.
NEWDELHI; V. NARAYANASAMY
The4th September, 2012.
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ANNEXURE
EXTRACT FROM THECONSTITUTION OFINDIA
* * * * *
16. (1) * * * * *
(4A) Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion, with consequential seniority, to any class or classes of
posts in the services under the State in favour of the Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State, are not adequately represented in the services
under the State.