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GOLDEN WORDS FROM THE GOLDEN MINDS

“Any claim for sharing of power by the minority is called communalism, while
monopolizing the whole power by the majority is called nationalism.”

- Dr.Babasaheb Ambedkar

“… in this area of administrative policy, what is often overlooked is that the

State is giving priority to group justice as against individual justice… Overall
presence of SC/ST hands broadly established once, the inequality cry can be
silenced. This strategy of group justice must apply not only to sweepers and
scavengers but to Secretaries and Judges and for promotion positions.
Individual injustice is inevitable when any measure of group justice is
implemented. Is there any cause without martyrs?”

- Late Mr.Justice V.R.Krishna Iyer of Supreme Court of India,

the Legendary Judge in Akhil Bharat Soshit Karamchari
Sangh case

“ To discriminate positively in favour of the weak may sometimes be promotion

of genuine equality before the law… One Law for the Lion and Ox is
oppression.”

Anthony Lester in his BBC talk in 1970 in the series `What is

wrong with the Law” As quoted by Mr Justice V.R.Krishna Iyer
in Kerala vs N.M.Thomas

“ To denumb the shudra masses and to deaden the depressed classes is a

national disaster. Once you remove those environmental inhibitions, which
scotch their personality, they will blossom.”

Mr.Justice O.Chinnappa Reddy of Supreme Court of India in

Vasanthakumar Vs State of Karnataka

Reservation based on cash, not caste

“…Admissions are directly made on the basis of donations of lakhs of rupees by

candidates who dare not seek where marks and reservations rule. This is an
alternative process of `reservation based on cash, not caste.”

-Mr.Justice V.R.Krishna Iyer in “ Social Democracy and Dalit

Egalite” published by University of Madras.

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“Always one hears the word `efficiency’ as if it is sacrosanct and the sanctorum
has to be fiercely guarded. Efficiency is not a Mantra whispered by the
Guru in the Sishya’s ear. The mere scoring of high ranks at an examination
may not necessarily mark out a good administrator. An efficient administrator,
one takes it, must be one who possesses among other qualities the capacity to
understand with sympathy and therefore, to tackle bravely the problems of the
large segment of population constituting the weaker sections of the people.
And, who better than the ones belonging to those very sections? Why not ask
ourselves why 35* years after independence, the position of the Scheduled
Castes, etc., has not greatly improved? Is it not a legitimate question to ask
whether things might have been different had the District Administrators and
the State and Central Bureaucrats been drawn in large numbers from these
classes?”

- Mr.Justice O.Chinnappa Reddy in Vasanthakumar vs State

of Karnataka

*Now 71 years

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 Ref:AMBU/PM/POA ACT/105/2018 July 31, 2018

To
Shri.Narendra Modi Ji,
Hon’ble Prime Minister of India,
152, South Block,
New Delhi-110 001.

Hon‟ble Shri Pradhan Mantri Ji,

SUB: Supreme Court Judgment dated 20-3-2018 in Dr.Subhash Kashinath Mahajan vs

State of Maharashtra and Anr - Nullifying the very soul of the SC & ST POA Act, 1989 as
amended in 2015- Appeal for a Parliamentary Bill to overcome the effect of the judgment
and to reverse the appointment of Hon’ble Mr.Justice Adarsh Kumar Goel as Chairperson
of National Green Tribunal- To introduce a Constitution Amendment Bill to restore
Reservation in Promotions to the SCs & STs and to make Creamy layer concept
inapplicable to them.

Greetings and respects to your goodself.

The captioned judgment of the Supreme Court has sent a shock wave and chilling effect among
the SC/ST people across the country and those who are genuinely interested in the welfare and
well-being of these people. On 20-3-2018, the Hon‟ble Supreme Court in Dr.Subhash
Kashinath Mahajan vs State of Maharashtra and Anr has held that nobody shall be arrested u/s
18 of the Act without prior permission of the SSP or HOD. When we read the judgment,
observed the proceedings of the Court while dealing with the Review Petition filed by the
Government and further developments, the following nagging questions arise in the minds of the
millions of the SC/ST people as well as the right-thinking intelligentia:

 The SC had issued notice to the Attorney General of India, “Issue Notice to the
Attorney General of India also as it involves interpretation of a Central Statute”.
Why did he then fail to appear before the Court?

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  Why was the ASG, one of the third-ranking top law officers, was chosen to appear
before the Court? Why did the ASG make a weak and losing argument before the
Judges? Was it to strengthen the views of the Amicus and the Judges who had
apparently pre-conceptualized the judgment against Sec.18 of the POA Act?

 Why did the ASG, who had formally objected to the Bench of two-judges deciding
against the judgments of similar size of the past Benches, fail to articulate the anarchic
situation to the Government and why was the AGI not pressed into fighting the case
before the bench for referring to a larger bench?

 Where was the AGI, who has vociferously argued during the hearing of the Review
Petition that the Judiciary should not encroach into the domain of the Parliament, during
the pre-judgment hearing?

 Was the Government really unaware of all these happenings?

 Hon‟ble Mr.Justice Adarsh Kumar Goel was bent upon negating the arguments of the
ASG. So was his attitude when the AGI too argued upon the Review Petition. Although,
it was the judgment of the Bench comprising of Hon‟ble Mr.Justice Uday Umesh Lalit
also, Section 18 was apparently an anathema to Justice A.K.Goel and he exhibited his
aversion to it thereby meaning aversion to the SC/ST people also. When the whole
country was able to perceive his mind, how could the Government fail to study his mind?

 Normally the Government would not be prepared to reward one whose views/ judgments
are against the Government‟s avowed policy. Hon‟ble Mr.Justice A.K.Goel was bent
upon nullifying the POA Act and acted against the interests of the SCs and STs through
his judgment in Pavitra & Others vs Union of India by which about 20000 SC/ST
employees of Karnataka Government were demoted. First one is against the Sovereign
Act of Parliament and the second is also against the Sovereign act of the Parliament and
the very Constitution itself (Constitution 77th, 82nd and 85th Amendment Acts).

 How was he then chosen to head the National Green Tribunal?

 Why has the Government not felt unhappy and uncomfortable with his mindset against
the SCs and STs?

 Or has the Government patted on the back of Mr.Justice A.K.Goel on both the anti-
SC/ST issues?

 Is the appointment an act of quid pro quo?

 Hon‟ble Mr.Justice Swatentra Kumar retired as Chairperson of NGT on 19-12-2017.

Why was this post not filled-up soon but kept vacant for 6 months? Was it kept vacant
only to reward Justice A.K.Goel?

 Hon‟ble Mr.Justice Adarsh Kumar Goel retired on 6-7-2018. In his farewell address too
he expressed his mind against the POA Act and in strong support of his judgment as if
he was urging upon the other Judges to hear the Review Petition to adhere to his
authorship of the judgment. When this was so, how did the Government think it fit to
issue Notification appointing him Chairperson of NGT on the very same day?

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  Why didn‟t the Government consider his appointment to NGT as an embarrassment to
the Government and as an act of rubbing salt on the wound of the SC/ST people?

Reservation in Promotion Bill in the cold storage:

Reservation in Promotions to the SCs and STs has been denied since the Mandal judgment
(Indira Sawhney vs Union of India) in 1992 and the judgment of the Supreme Court in Nagaraj
case delivered on 19-10-2006. The three riders created by the Supreme Court are irrelevant as
they have already been answered by the earlier judgments of the Supreme Court which have
been deliberately ignored while writing this judgment. When the Bill to negate the adverse
effect of this judgment was passed in the Rajya Sabha, your party supported its passage
although it could not be passed in the Lok Sabha. After the 16th Lok Sabha was constituted,
your Government was formed with absolute majority but the SCs and STs are surprised to note
why your party that supported the Bill on 5-9-2012 and the Government under your dynamic
leadership could not legislate a comprehensive and loop-hole free Bill for the last 4 years is yet
another nagging question. Even now there is no concrete symptom of legislating a Bill to this
effect. Without waiting for the passage of the 5th year and without waiting for a merciful solution
from the Supreme Court, it is appealed that you would initiate immediate action to achieve this
goal through the Constitution Amendment Bill.

All the above questions have brought embarrassment and disrepute to the Government. The
only way to undo this and overcome this unpleasant situation is:

 To introduce a Parliamentary Bill to nullify the effects of the SC judgment dated 20-3-
2018 and include the whole Act in the Ninth Schedule of the Constitution (Model Draft
Bill enclosed for ready reference) with retrospective effect from 19-3-2018.

 To introduce a comprehensive Constitution Amendment Bill to restore the rights of

Reservation in Promotion to the SCs and STs with all consequential benefits (Model
Draft Bill is enclosed) with retrospective effect from 17th day of June, 1995. as the
Nagaraj judgment of the SC has become a disaster to the SCs and STs and its Review
by the proposed Constitution Bench of 7 Judges will not be a panacea as the last 26
years‟ bitter experience of legal battles have revealed.

 Subsequent to the passage of the above said Bill, it is appealed to get an order issued
by the DOPT for identifying the backlog vacancies from 17-6-1995 to till date and
provide promotions to the SC/ST employees and officers in service and in case of those
who retired, promotions be given for the purpose of granting monetary and other related
consequential benefits.

 To recall the appointment order issued to the Hon‟ble Mr.Justice Adarsh Kumar Goel so
as to assuage the feelings of the SCs and STs as this appointment is untenable.

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We earnestly appeal to you to render justice to the SCs and STs in the above said lines, instill
confidence in these people and restore the credibility for the Government.

With warm regards,

Yours faithfully,

(A.Jaison)
General Secretary
Ambedkar World Federation of Employee
Associations (AMBU)

Encl:1.Model Draft Bill to amend the SC & ST POA Act with Statement of Objects and
Reasons
2.Model Draft Constitution 125th Amendment Bill to restore the Reservation in
Promotions to the SCs & STs with Statement of Objects and Reasons

Copy to:

Hon‟ble Shri.Ram Nath Kovind Ji, President of India

Hon‟ble Shri.Venkaiah Naidu Ji, Vice President of India & Chairman of Rajya Sabha
Hon‟ble Smt.Sumitra Mahajan Ji, Lok Sabha Speaker
Hon‟ble Shri.Rajnath Singh Ji, Union Minister of Home Affairs
Hon‟ble Shri.Rai Shankar Prasad Ji, Union Minister of Law and Justice
Hon‟ble Shri.Thaawar Chand Gehlot Ji, Union Minister of Social Justice & Empowerment
Hon‟ble Shri.Ram Vilas Paswan Ji, Union Minister of Consumer Affairs, Food
& Public Distribution
Hon‟ble Shri. Rakul Gandhi Ji, M.P., & President of INC
Hon‟ble Shri.Mallikarjun Kharge Ji, Leader of Opposition in Lok Sabha
Hon‟be Dr Prof Kirit Premjibhai Solanki Ji, Chairman of Parliamentary Committee
on SC & ST Welfare
Hon‟ble Dr.Ram Shanker Katheria Ji Chairman, National Commission for Scheduled Castes
Hon‟ble Dr.L.Murugan Ji, Vice Chairman, NCSC
Hon‟ble Shri.Nand Kumar Sai Ji, Chairman, National Commission for Scheduled Tribes
Hon‟ble Miss Anusuiya Uikey Ji Vice Chairperson, NCST
Hon‟ble Members of the NCSC & NCST
Hon‟ble Members of Parliament representing SCs & STs
Hon‟ble Kum.Mayawati Ji, National President of BSP
Hon‟ble Members of Parliament representing as Leaders of Parties in Parliament
Other Hon‟ble Members of the Parliament who are proactive in the Debates.

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 (A) STATEMENT OF OBJECTS AND REASONS TO THE MODEL DRAFT BILL

“THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF

ATROCITIES) AMENDMENT BILL, 2018”

1. Article 17 of the Indian Constitution mandates, “Untouchability” is abolished and its practice in
any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be
an offence punishable in accordance with law.” But its practice continued unabated and
manifold in different forms and with new avatars. In this background, the Government felt it very
necessary to enact the Untouchability Offences Act, 1955 which was later rechristened as “The
Protection of Civil Rights Act” and again with amendments in 1976. Since the PCR Act, 1976
too was mild and not adequately empowered to deal with the wild criminals, the Government
enacted `The SC & ST (Prevention of Atrocities) Act, 1989‟. This Act too could not bring the
desired results and needed to be further stringent with addition of so many offences. Then the
Government, after hectic deliberations, promulgated an Ordinance in 2014 and at last `The SC
& ST (POA) Amendment Act, 2015‟ received the assent of the President on 31-12-2015, of
course, by retaining the parent Act of 1989.

2. The Rajasthan High Court in Jai Singh and Another Vs Union of India, while deciding and
upholding the validity of the Act on 28-1-1993, unequivocally held, “The object of Act 33 of 1989
is to prevent atrocities against members of the SC & ST and this has to be taken into account
while interpreting the Act”. In State of Madhya Pradesh and Another Vs Ramakrishna Balothia
& Other, the Supreme Court has held, “The offences of atrocities are committed to humiliate and
subjugate the Scheduled Castes & Scheduled Tribes with a view to keep them in a state of
servitude. Hence, they constitute a separate class of offences and cannot be compared with
offences under the Indian Penal Code” and in the same judgment, the Supreme Court has
commended the Rajasthan High Court judgment. Thus, the SC has upheld the validity of the
POA Act.

3. The Supreme Court, in Sushil Kumar Sharma vs Union of India and Others wherein the
challenge to the constitutional validity of a provision enacted to protect women from the offence
punishable under Section 498A of IPC was rejected by holding, “ mere possibility of abuse of
power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such
cases, “action” and not the “Section” may be vulnerable”. Again in Shiv Shakti Co-operative
Housing Society Vs Swaraj Developers (AIR 2003 SC 2434) it has held, “It is a well settled
principle in law that the Court cannot read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislature. The language employed in a statute is
the determinative factor of legislature intent”. Similar language was used by the Supreme Court
in Roxann Sharma Vs Arun Sharma (AIR 2015 SC 2232) when it was clear in appreciating the
powers of the Parliament or Legislature: “The wisdom of the Parliament or the Legislature
should not be trifled away by a curial interpretation which virtually nullifies the spirit of the
enactment”. It has further held in B.Premanand and others Vs Mohan Kokilal and others(AIR
2011 SC 1925) that “ The function of the Court is to expound the law and not to legislate”. In
State of Jharkhand and Others Vs Ambay Cements and Another (AIR 2005 SC 4168), the
Hon‟ble Supreme Court has held, “It is the cardinal rule of interpretation that where a statute

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provides that a particular thing should be done, it should be done in the manner prescribed and
not in any other way”. Thus, the Hon‟ble Supreme Court has not only acknowledged the
unparalleled sufferings of the SC & ST people on account of the untold subjugation and
atrocities committed by those who have feudal mindset and caste superiority but also held that
judiciary should respect the intent of the parliament or Legislature.

4. But unfortunately, the Hon‟ble Supreme Court in its judgment dated 20-3-2018 in Dr.Subhash
Kashinath Mahajan vs State of Maharashtra and Another has nullified Section 18 of the SC &
ST POA Act by holding: i) No absolute bar against grant of anticipatory bail in cases under the
Atrocities Act, ii) To arrest a public servant only after approval of the appointing authority and of
a non-public servant after approval of the SSP and iii) Making a preliminary enquiry mandatorily
to be conducted by the DSP concerned to find out a case prior to arrest. This judgment has
sent a wrong signal and there were wide protests and discontentment among the SC and ST
people across the country as they feared that the atrocities would be let loose by the
perpetrators against them and the justice would be delayed and ultimately denied when the
safeguard provided under Section 18 of the Principal Act is nullified. Members of the Parliament
cutting across the party lines have also expressed strong resentment over the effects of the
judgment. There have been views expressed by various fair-minded intellectuals against this
judgment.

5. The Government have carefully considered all the pros and cons. As held by the Hon‟ble
Supreme Court, personal liberty of an individual is paramount but much more paramount is the
liberty of the SCs and STs who have been under constant oppression for centuries on account
of their birth and their being treated as untouchables and who clamour for human dignity and cry
for being treated as fellow citizens of this great country. Untold ill-treatment to this segment of
population should be dealt with an iron hand and on a different footing. The Government have,
therefore, thought it necessary to enact this Bill in order to negate the effects of the aforesaid
Supreme Court judgment and thereby assuage the feelings of the SCs and STs by prevention of
the atrocities against them.

6. The Bill seeks to achieve the aforesaid object.

New Delhi Ravi Shankar Prasad

….th August, 2018 Union Minister of Law & Justice

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 (B) A MODEL DRAFT BILL

THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF

ATROCITIES) AMENDMENT BILL, 2018

(Bill No… of 2018)

[ …th August, 2018 ]

An Act to amend Section 18 of the Act, to protect it from the judicial interpretations or
interferences and to get the Act & Rules included in the Ninth Schedule of the
Constitution of India.

Be it enacted by the Parliament in the Sixty-eighth Year of the Republic of India as follows:

1. Short Title and commencement- (1) This Bill may be called the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018

(2) It shall be deemed to have come into force on the 19th day of March, 2018.

2.Amendment of Section 18: After Section 18 of the Principal Act, the following sub-section
shall be inserted, namely:-

(i) Notwithstanding anything contained anywhere in the Constitution or any Act of the
Parliament or any State Legislature or any Union Territory or any Judgment of any Court in
India or any order of any authority under the Government of India or any State except the State
of Jammu and Kashmir or any Union Territory, nothing shall stand against operation of Section
18 of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3.Amendment to the Ninth Schedule:

In the Ninth Schedule to the Constitution, after Entry No…… and before the Explanation, the
following entries shall be inserted, namely:-

Entry No………..The Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989, Act No.33 of 1989, the Principal Act,
Entry No………..The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015 (Act 1 of 2016)
Entry No………. The Scheduled Castes and The Scheduled Tribes (Prevention of
Atrocities Rules,1995)
Entry No………. The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Bill/Act, 2018, Act No…....of 2018

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 (A) STATEMENT OF OBJECTS AND REASONS [To the Proposed Constitution
(125th Amendment) Bill, 2018]

1. The Constitution of India guarantees reservation in the matter of appointments and posts to
the backward classes of citizens particularly the Scheduled Castes and the Scheduled Tribes
under the Union of India including States and Union Territories. The Scheduled Castes and the
Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955 but
there have been different rulings of the Supreme Court for and against it. The Supreme Court in
its judgment dated 16th November, 1992 in the case of Indra Sawhney and Others Vs Union of
India and Others (AIR 1993 SC 477) has examined all the issues relating to the Reservation
Policy and held that reservation in appointments or posts cannot extend to reservation in
promotion and consequent to this judgment, the Scheduled Castes and the Scheduled Tribes,
who have not reached the required level of representation in various services of the State, were
affected and therefore the Government with their commitment to protect the interest of the
Scheduled Castes and the Scheduled Tribes have decided to continue the reservation in
promotion and amended the Article 16 by inserting a new clause (4A) which was passed by
the Parliament as “The Constitution (Seventy-Seventh Amendment) Act, 1995 on 17th June,
1995.

2. Again the Parliament enacted the Constitution (Eighty-Fifth Amendment) Act,2001 with a view
to negate the adverse effect of the Supreme Court Judgments in the case of Virpal Singh
Chauhan (1995) 6 SCC 684 and Ajit Singh No.I AIR 1996 SC 1189 and the resultant issuance
of DOPT O.M.No.20011/196-Estt.(D) dated 30th January, 1997 which have caused
considerable anxiety among the Scheduled Caste and the Scheduled Tribe employees in the
Government. Both these judgments have caused irreparable damages to the SC/ST employees
who, even if promoted earlier than the general category employees, will lose their seniority, if
the general category employees, who were senior earlier but get promoted much later than the
SC/ST employees, will automatically regain their seniority over the already promoted SC/ST
employees. Hence, the Constitution 85th Amendment Act,2001 was enacted and DOPT
O.M.No.20011/1/2001-Estt.(D) dated 21/1/2002 was issued to give relief to the SCs and STs in
the matter of promotion `with consequential seniority‟ as provided for in the amendment to the
Article 16 (4A) itself. Since the proposed Constitution (125th Amendment) Bill, 2018 takes care
of the object of the 85th Constitution Amendment Act, 2001, the latter is omitted now.

3. The Supreme Court in its judgment dated 19/10/2006 in the Nagraj and Others Vs Union of
India (Case No.Writ Petition (Civil) 61 of 2002 and connected Writ Petitions) has upheld the
Constitutional validity of the 77th, 81st, 82nd and 85th Constitution Amendment Acts but with
subjection to certain fulfillments such as `exercising discretion and make such provision, to
collect quantifiable data showing backwardness of the class and inadequacy of representation
of that class in addition to compliance of Article 335.‟ as a result of which the implementation
process has come to a naught since the appeals have been filed for seeking time, further
interpretation and clarity, etc. by various authorities under the control of the State as defined in
Article 12 of the Constitution.

4. When the Policy of Reservation in Promotion was implemented by the Uttar Pradesh
Government, it was challenged before the High Court of Judicature at Allahabad but the Court
has held that Rule 8A of U.P.Govt Servants Seniority Rules 2007 has got Constitutional
sanctity. When this judgment was challenged before the Lucknow Bench of the High Court,
Allahabad High Court judgment was reversed under the ground that the conditions laid down in
Nagraj case of the Apex Court have not been fulfilled as directed by the Supreme Court. When

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the U.P.Government appealed against this judgment before the Supreme Court, the Apex court
in its judgment dated 27/4/2012 in U P Power Corporation Ltd vs Rajesh Kumar & Others in
Civil Appeal No.2608 of 2011 & State of U P vs Brij Bhushan Sharma in Civil Appeal No.22 of
2011 has upheld the Lucknow Bench Judgment nullifying the Allahabad High Court judgment.
All these judicial verdicts have led to considerable anxiety among the SC & ST employees
through-out the country and more particularly among the Members in the Parliament. There
have been various judgments viz.,1) S.Vinod Kumar and Another vs Union of India, 2) Chairman
& Managing Director, Central bank of India & Ors Vs Central Bank of India SC/ST Employees
Association & Ors, 3) Panneerselvam and Others vs Govt of Tamil Nadu, 4) B.K.Pavitra & Ors
vs Union of India, 5) All India Equality Forum & Others vs Union of India, etc., which have
intensified and aggravated the adversity towards the SCs and STs and thus the Nagaraj
judgment has become the foundation of all these adverse judgments.

5. Of late, there has been a hue and cry demanding application of creamy layer concept to the
SCs and STs also and there have been litigations to this effect. Whatever be the high positions
achieved by the SCs and STs are not duly recognized in the society but with a tag of inferior
caste status which stigmatizes not only the individuals but also the nation‟s conscience. When
they aspired for higher positions, there were complaints that the eligible and qualified persons
were not available and when the well qualified and knowledgeable persons are available- mostly
from the well-positioned families, there is a grudge against them which comes in the form of
demand for application of Creamy Layer Concept. The Government apprehend that application
of Creamy Layer Concept will substantially reduce the already lower representation in the higher
echelons of the administration. There is a reference in the Nagraj judgment also about the
Creamy Layer Concept although it is an `obiter dicta‟. The Government have therefore carefully
considered all these aspects and with abundant caution decided against any move from any
quarter, particularly the judiciary, for application of Creamy Layer Concept to the SCs & STs and
hence necessary provision is made in this Constitution Amendment Bill by addition of new
clause (4C)

6. The anxiety of the SCs and STs is quite understandably justifiable in the context of their
constant groaning under the yoke of administrative-untouchability in addition to the age-old ill-
effects of social-untouchability. No amount of economic advancement or affluence can
withstand the damning influence of caste-prejudice, social stigma, disability and social
segregation and the deep-routed bias against the SCs and STs. This bitter and painful truth has
always been acknowledged by the Judiciary- particularly the Apex Court in various earlier
judgments while some of the latest, as named above, are unfortunately not so. The Government
have understood the administrative bias overtly or covertly shown against these people
preventing them from joining the mainstream of the national life and therefore the Government
have been considerate to their just demands for parity and social justice. The Supreme Court
has already held, “Thousands of years of discrimination and exploitation cannot be wiped out in
one generation...” and hence the Government have felt that reservation in promotion, in addition
to the initial appointment, to them is just a level-playing field in the back-drop of the aforesaid
discrimination, disability, animosity and antipathy- the pains of which no one can feel better than
those sufferers as the `wearer of shoe alone knows where the shoe pinches.’

7. As rightly said by Dr.Babasaheb Ambedkar, “Untouchability has ruined the Untouchables,

the Hindus and ultimately the nation as well. If the Depressed classes gained their self-respect
and freedom, they would contribute not only to their own progress and prosperity but by their
industry, intellect and courage would contribute also to the strength and prosperity of the nation.
If the tremendous energy the Untouchables are at present required to fritter away in combating

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the stigma of untouchability had been saved, then it would have been applied by them to the
promotion of education and development of economic resources of the nation as a whole...”
This morbid picture of untouchability is still menacingly vivid and has become worse but in a
novel way. The Government have been keen on and conscious of the progress of the nation
with the parallel and inclusive progress of the major chunk of this socially segregated and
marginalized population and hence resolved to provide them reservation in promotion by
removing the existing legal bottlenecks.

8. Keeping in mind the incomparable social stigma of the SCs and STs as narrated above, the
Government have seriously considered the adverse effect of the Supreme Court judgment
dated 27/04/2012 and the 23 years of legal battle since the 77th Constitution Amendment on
17th June, 1995 virtually obstructing the promotional prospects of the SCs and STs. The
Government have paid serious attention to the plight of the SCs and STs and their poor
representation in the higher level of administration in the Union, States and Union Territories
and therefore decided to substitute the Clause (4) and (4A) of Article 16 with effect from 17th
June, 1995 to provide reservation in promotion to the SCs and the STs.

9. The Government have therefore thought it proper to bring the Constitution (125th
Amendment) Bill, 2018, the Constitution (Eighty-First Amendment) Act, 2000 and the
Constitution (Eighty-Second Amendment) Act, 2000 within the purview of the Ninth Schedule to
the Constitution so that they get protection under Article 31B of the Constitution in regard to
judicial review. Accordingly, necessary provisions have been made in the Constitution (125th
Amendment) Bill, 2018

10. The Bill seeks to achieve the aforesaid object.

New Delhi Ravi Shankar Prasad

Minister of Law and Justice
…. August, 2018

N.B.: This is a Model Draft Bill desired/required to be introduced in the Parliament by

the Hon‟ble Union Minister of Law and Justice.

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 (B) A MODEL DRAFT BILL

“THE CONSTITUTION (125th AMENDMENT) BILL, 2018”

(Date: ...th August,2018)

An Act further to amend the Constitution of India.

Be it enacted by Parliament in the sixty-eighth year of the Republic of India as follows:

1.Short Title: This Bill may be called the Constitution (125th Amendment) Bill, 2018

2.Amendment of Article 16:

In Article 16 of the Constitution and for clause (4) and clause (4A), the following shall be
substituted with an addition of a new clause (4C) and they shall be deemed to have been
substituted and added with effect from 17th June, 1995:

(4) Notwithstanding anything contained in clause (1) of this Article, there shall be reservation
in matters of appointments and posts in favour of the backward classes of citizens and more
specifically the Scheduled Castes and Scheduled Tribes in order to ensure their adequate
representation in the services under the Union or of a State or of a Union Territory or of any
Public Sector Undertaking or local body or Authority under the control of the State as defined in
Article 12 of the Constitution or any such organization receiving grant or aid from the Union or a
State or a Union Territory.

(4A) Notwithstanding anything contained elsewhere in the Constitution including Article 335,
there shall be reservation in matters of promotion, with consequential seniority, in favour of the
Scheduled Castes and the Scheduled Tribes who shall be deemed be backward and are
notified under Articles 341 and 342, to any class or classes of posts in the services under the
Union or a State or Union Territory including any Public Sector Undertaking or Local Body or
Authority or any Organization which receives grant or aid from the Union or a State or a Union
Territory and the extent of such reservation, with no reservation ceiling to come in the way,
shall be not less than the percentages of their respective population as and when periodically
notified by the Government of India.

(4C) Notwithstanding the economic status the SCs and STs would achieve on account of
their enjoying the benefit of reservation in services and promotions or having held any position
in the Legislature, Executive and Judiciary or any office or out of any assignment or any other
body either under the State or under the Private concerns or on their own individual business/
professions/efforts or by any source of income, the creamy layer concept shall not be applicable
to the SCs and STs.

3. Extent and Applicability:

It shall extend to and be applicable in the entire administrative/territorial jurisdiction of India.

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4. Amendment of the Ninth Schedule:

In the Ninth Schedule to the Constitution, after Entry ..... and before the Explanation, the
following entries shall be inserted, namely:-

Entry No......: The Constitution (Eighty-First Amendment) Act, 2000.

Entry No.......: The Constitution (Eighty-Second Amendment) Act, 2000.

Enty No. ....... The Constitution (Eighty-Fifth Amendment) Act, 2001

Entry No......: The Constitution (One Hundred and Twenty-fifth Amendment) Act, 2015

Note: 1.As could be seen in the Internet 124th was the last Constitution Amendment
Bill and hence 125 is numbered to this proposed Amendment.

2.Similarly, .... is the last Entry No. in the Ninth Schedule to the Constitution.
Hence, the next numbers ....., ...... and ...... are given as above.

N.B.: This is a Model Draft Bill desired/required to be introduced in the Parliament by

the Hon‟ble Union Minister of Law and Justice.

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RESERVATION IN PROMOTION BILL IN FAVOUR OF THE SCs & STs – HOW THE
AMENDMENT SHOULD BE...

ARTICLE EXISTING AMENDMENT HOW THE AMENDMENT

No. PROVISION PROPOSED BY THE SHOULD BE....
GOVT. (TABLED IN (HOW I PROPOSE THE
THE RAJYA SABHA ON AMENDMENTS TO BE)
05-09-2012)
16 (4) “Nothing in this article “Notwithstanding anything in
shall prevent the clause (1) of this Article, there
State from making shall be reservation in matters
any provision for the of appointments and posts in
reservation of -NIL- favour of the backward classes
appointments or of citizens in order to ensure
posts in favour of any their adequate representation in
backward class of the services under the Union or
citizens which, in the a State or a Union Territory or
opinion of the State, of any Public Sector
is not adequately Undertaking or local body or
represented in the Authority under the control of
services under the the State as defined in Article
State.” 12 of the Constitution or any
such organisation receiving any
grant or aid from the Union or a
State or a Union Territory.”

16 (4A) “Nothing in this article “Notwithstanding “Notwithstanding anything

shall prevent the anything contained
State from making elsewhere in the
any provision for Constitution, the
reservation in matters Scheduled Castes and
of promotion with the Scheduled Tribes
consequential notified under article 341
seniority, to any class and article 342,
or classes of posts in respectively, shall be
the services under deemed to be backward
the State in favour of and nothing in this article
the Scheduled Castes or in article 335 shall
and Scheduled Tribes prevent the State from
which, in the opinion making any provision for
of the States, are not reservation in matters of
adequately promotions, with
represented in the consequential seniority,
services under the to any class or classes of
State” posts in the services
under the State in favour
of the Scheduled Castes
and the Scheduled
Tribes to the extent of
the percentage of
contained elsewhere in the
Constitution including Article
335, there shall be reservation
in promotions, with
consequential seniority, in
favour of the Scheduled Castes
and the Scheduled Tribes who
shall be deemed to be
backward and are notified
under Articles 341 and 342, to
any class or classes of posts in
the services under the Union or
a State or a Union Territory
including any Public Sector
Undertaking or Local Body or
Authority or any such
organisation which receives
any grant or aid from the Union
or a State or a Union Territory
and the extent of such
reservation shall be not less
than the percentages of their
respective population as and

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 reservation provided to
the Scheduled Castes
and the Scheduled
Tribes in the services of
the State.”
16 (4C) New clause (4C) to No proposal seems to
make Creamy Layer be from the Government
Concept inapplicable on this issue.
to the SCs & STs
when periodically notified by
the Government of India.”
(4C) Notwithstanding the
economic status the SCs and
STs would achieve on account
of their enjoying the benefit of
reservation in services and
promotions or having held any
position in the Legislature,
Executive and Judiciary or any
office or out of any assignment
or any other body either under
the State or under the Private
concerns or on their own
individual business/
professions/efforts or by any
source of income, the creamy
layer concept shall not be
applicable to the SCs and STs.

How the PROPOSED AMENDMENTS differ from the EXISTING PROVISIONS and
GOVT.AMENDMENT TABLED IN RAJYA SABHA

Sl.No EXISTING PROVISION AMENDMENT PROPOSED HOW THE AMENDMENT

BY THE GOVT. (TABLED SHOULD BE....
IN THE RAJYA SABHA ON (HOW I PROPOSE THE
05-09-2012) AMENDMENTS TO BE)
1. Article 16(4) does not Draft Amendment table in Article 16 (4) is also proposed
give wide scope and the Parliament does not to be amended for wider scope
applicability. include Article 16(4) and applicability.
2. Both are `enabling Draft Amendment is only Both Clauses, viz., 16 (4) and
provisions‟ for Article 16 (4-A) but 16 (4-A) are proposed to be
still an `enabling `mandatory provisions‟
provision‟
3. Have rooms for Draft Amendment closes Draft proposal (Amendment)
interpretation on room against closes room against
`backwardness‟ and `backwardness‟; `backwardness‟; `Adequacy of
`adequacy of adequacy of representation (Quantifiable
representation‟ representation‟ is taken data) is taken care of by
care of by way of representation in proportion to
percentages of SCs & their population, that is, it
STs but no scope for provides for proportionate
enhanced percentage in representation keeping in mind
proportion to their the upward figures of Census
population (that is, 22.5% (that is 24.6% as per the latest
as against the latest Census figures available and it
24.6%) and rider from has got an in-built provision for

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 Article 335 in respect of
maintenance of efficiency
is removed.
4. The meaning of the The meaning of the word
word `State‟ is not `State‟ is not explicitly
explicitly clear clear although Article 12
although Article 12 defines it very clearly and
defines it very clearly therefore it is open to
and therefore it is misinterpretation by the
open to negative minds. The
misinterpretation by Draft Amendment already
the negative minds. tabled in the Rajya
Sabha does not take care
of this aspect.
future also); rider from Article
335 in respect of maintenance
of efficiency is removed.
No chance is given for
misinterpretation and
ambiguity. Hence, it is lucidly
used as Union or a State or a
Union Territory or Public
Sector Undertaking or Local
Body or Authority under the
control of the State as defined
in Article 12

5. Not provided in the Not provided in the Draft Provision is made to include
Existing Provision. Amendment. `any organisation‟ to follow
rules of reservation in
appointment and promotion if
such an organisation receives
any grant or aid from the Union
or a State or a Union Territory.

6. New clause (4C) to Apparently no proposal Proposed Amendment takes

make Creamy Layer from the Government – care of impending danger, if
Concept inapplicable then or present. any, on account of likely
to the SCs & STs judicial decision and therefore
this Constitutional safeguard
(4C) in Article 16 is additionally
provided for.
7. Not within the purview
Draft Amendment does Proposed Amendment (as in
of the 9th schedule;
NOT propose to bring the Book*) is brought within the
hence open to judicial
these laws within the purview of the 9th schedule so
scrutiny. purview of 9th schedule; that it gets protection under
door is open for judicial Article 31B.
scrutiny.
* RESERVATION IN PROMOTION BILL – A MODEL DRAFT BILL – THE CONSITUTION
(125th AMENDMENT) BILL, 2018 WITH STATEMENT OF OBJECTS & REASONS.

*Totally disagreeing and disapproving the riders/ conditions laid down by the Supreme
Court in Nagraj and Others Vs Union of India (Case No.Writ Petition (Civil) 61 of 2002 and
connected Writ Petitions) on 19-10-2006 as the judgment is injudicious and detrimental to
the interest of the SCs & STs for the reasons appended here-below separately.

Drafted By
A .JAISON, M.A.,B.L., # 15A/27, A.K.Samy Nagar 6th Street,
General Secretary, Kilpauk,
Ambedkar World Federation of CHENNAI-600 010
Employee Associations (AMBU) Mob: 94430 99600
Chennai. E-mail: jaibhim3@yahoo.com
th st
Dated 30 September, 2012 / 31 July, 2018

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NAGRAJ AND OTHERS VS UNION OF INDIA > THE FOUNTAINHEAD OF ALL THE
ADVERSE JUDGMENTS

IMPORTANT QUESTIONS/ ARGUMENTS AGAINST THIS JUDGMENT**

The Supreme Court, while deciding the above case, has upheld all the four Constitution
Amendment Acts, viz., 77th, 81st, 82nd and 85th but put three riders namely,
 Collecting the Quantifiable Data,
 Showing/ Identifying the Backwardness of the SCs and STs and
 Ensuring Administrative Efficiency.

i) What is meant by the QUANTIFIABLE DATA as decided in the Supreme Court Judgment
in Nagraj case? Is it required? Is it feasible? Why the Supreme Court has failed to read the
effect of post-based roster judgment ? Why the Government of India have failed to draw the
attention of the Court to this ?

The judgment lays the condition that for the purpose of extending reservation in promotion to
the SCs & STs, the data relating to the shortfall in each cadre has to be given.The Supreme
Court is erroneous in its judgment in the sense, the post-based roster as decided in
R.K.Sabharwal Vs State of Punjab as well as J.C.Mallick Vs Ministry of Railways by the
Constitution Bench of Supreme Court takes care that the percentage of reservation in the
appointments and posts does not exceed 22.5% in toto to the SCs & STs. As such the
administration/executive takes care not to allow excess reservation. And the Centre also (the
Attorney General of India) has failed to pin-point this aspect to the Supreme Court. Hence, this
condition is not at all required.

ii) What about the condition of `BACKWARDNESS’ laid down by the Supreme Court in
Nagraj case? Could the Supreme Court‟s smaller bench prevail upon the larger Bench
judgment? – Yes, if it is to the detriment of the interest of SCs & STs.- How?........

Again, the Judiciary plays against its own earlier judgments decided on various occasions on
this subject. The backwardness is not to be understood in the context of the economic
backwardness. So far as the SC/ST people are concerned, it is purely of social bias and social
animosity from the protagonists of casteism and untouchability. Here also, the Attorney General
of India has miserably failed in his duty to challenge this in the Supreme Court when the Court
pronounced its judgment in Nagraj case and the Centre and the Parliamentarians have not
given the required thought to it.

In Indra Sawhney Vs Union of India, the Constitution Bench of 9 Judges have clearly
observed the still abhorring social stigma attached to the SCs and STs (Para 770) whatever
may be their status:

“ Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy.
In rural India, occupation and caste nexus is true even today. A few members may have
gone to cities or even abroad but when they return they too, barring a few exceptions go
into the same fold again. It does not matter if he has earned money. His identity is not
changed for the purpose of marriage, death and all other social functions. It is his social
class that is still relevant.”

Again in of the same judgment, Mr.Justice Jeevan Reddy has observed as follows:

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“The Scheduled Tribes and Scheduled Castes are without a doubt backward for the
purpose of the clause; no one has suggested that they should satisfy the test of social
and educational backwardness.” (Para 788)

“It is not correct to say that the backward class contemplated by Article 16(4) is limited to
the socially and educationally backward classes referred to in Article 15(4) and Article
340. It is much wider. The test of requirement of social and educational backwardness
cannot be applied to Scheduled Castes and Scheduled Tribes, which indubitably falls
within the expression “backward class of citizens”.

Indra Sawhney judgment is of Nine-Judge Constitution Bench while the Nagaraj judgment is of
Five-Judge Bench. Thus, the Nagraj judgment is of judicial aberration and contradictory to the
larger bench judgment. Yet, everybody talks about the Nagraj case judgment because it is
against the SCs & STs. Thus, in reality, though cannot be legally, the five-judge bench judgment
is enforceable- and everybody is quoting it and relying upon it conveniently ignoring the other
one - over the nine-judge bench judgment which is/ has to be the law of the land!

In yet another judgment by a Constitution bench of the Supreme Court (E.V.Chinnaiah Vs

State of Andhra Pradesh) which dealt with sub-caste quota and dubbed by the Court as `sub-
quota politics‟) it was held, “Scheduled Castes, however, is not a caste in terms of its definition
as contained in Article 366 (24) of the Constitution. They are brought within the purview of the
said category by reason of their abysmal backwardness. Scheduled Castes consist of not only
the people who belong to some backward caste but also race or tribe or part of groups within
castes, races or tribes. They are not merely backward but the backward most”. This
judgment too, which was delivered in 2005, was not taken note of by the Supreme Court in
Nagraj case for the obvious reason.

iii) What about `ENSURING ADMINISTRATIVE EFFICIENCY’?

Article 335 puts this condition. It is a hell of disabilities for SCs & STs because of the disabling
minds of the executive; it needs complete deletion. But again the so called meritocrats, judiciary
and a major section of the media will make a hue and cry as if the administrative heaven will
collapse, if this phrase is deleted. This is grossly misused by the administration to the detriment
of the SCs & STs as if the non- SC/ST people are the only efficient ones in this country.
However, the 82nd Amendment takes care of this by providing for restoration of relaxation in
marks and lowering the standard of evaluation to provide reservation in promotion. Moreover,
once it is brought within the purview of the Ninth Schedule, there should not be any problem.
(Relaxation has become essential to the `touchable-administrators‟ to covertly and overtly relax
rules and conditions in favour of their `touchable-classes‟ while their mind-set refuse to extend
the same relaxation to the `untouchable-classes‟). Therefore, there is no need to touch this
issue- obviously because there will be no unanimity of opinion and the SCs & STs will not
muster their strength in number and thought for their obvious political disability. The demand of
the SCs & STs is adequate= proportionate representation, not compromise on efficiency as they
are very much confident of their efficiency and let there be no hue and cry on this subject. The
excerpts from the Supreme Court judgments which have become “Quotable Quotes” as in the
preceding pages are to be borne in mind about this „efficiency.‟

In addition to the above, it is quite appropriate to quote Para 38 of the Apex Court judgment in
Ashok Kumar Gupta Vs State of Uttar Pradesh in Civil Appeal No.2239 of 1997 by the

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Constitution Bench comprising of Justices K.Ramaswamy, S.Saghir Ahmad, G.B.Pattanaik
and Justice K.Ramaswamy and authored by Justice K.Ramaswamy:

“Efficiency in service attracts the well-known parable that insanity cannot be cured Until
married and marriage cannot be celebrated till insanity is cured. Unless one is given
opportunity and facility by promotion to hold an office or a post with responsibilities,
there would be no opportunity to prove efficiency in the performance or discharge of the
duties. Without efficiency one cannot be promoted. How to synthesize both and give
effect to the constitutional animation to effectuate the principle of adequacy of
representation in all posts or classes of posts in all cadres, service or grade is the
nagging question. It is seen that the rules provide promotion from Assistant Engineer to
Executive Engineer on the principle of “seniority subject to rejection of the unfit” and
from Superintending Engineers onwards, „merit‟ is the consideration. In other words, the
promotion is based on the aforesaid principles. Even employees from Dalits and Tribes
get promoted only on satisfying the above test. Appointment by promotion is the facet
of recruitment to a service or cadre/ grade/ class or classes of posts...”

This judgment was delivered by the Apex Court in 1997 while the judgment of the Apex Court
delivered in 2006 has not taken note of it and why it is so is a million dollar question.

** Excerpts from the book “Reservation in Promotion Bill- Eluding for Decades”
by A.Jaison with the Foreword of Mr Justice K.Chandru & Other eminent persons.

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