77th Amendment of Indian Constitution

The Constitution of India is the supreme law of the land. It lays down the framework for governance, distribution of powers, and the fundamental rights of citizens. Adopted on 26th November 1949 and coming into force on 26th January 1950, it is the longest written constitution in the world. With 395 Articles initially, spread over 22 Parts and 8 Schedules, it is a living document that evolves through amendments.

Among the most important aspects of the Indian Constitution is its commitment to social justice, especially for historically marginalised groups like the Scheduled Castes (SCs) and Scheduled Tribes (STs). To achieve this, the Constitution provides for reservations in education, public employment, and legislatures.

The 77th Amendment of the Indian Constitution, enacted in 1995, is a crucial milestone in India’s reservation policy. It specifically addresses the reservation in promotions for SCs and STs in public services under the State. 

The Constitutional Reservation Framework: A Historical Background

Since independence, India has had a reservation policy to uplift disadvantaged communities, particularly SCs and STs. This policy was embedded in the Constitution under various Articles:

• Article 330 & 332: Reservation of seats for SCs and STs in Lok Sabha and State Legislative Assemblies.
• Article 16(4): Allows the State to provide reservation in appointments or posts in public employment.

While these provisions initially covered reservations in direct recruitment, over time, reservations in promotions within services became a matter of administrative practice and judicial scrutiny.

The Supreme Court’s Judgement in Indra Sawhney Case (1992)

The landmark judgement in Indra Sawhney & Ors. v. Union of India (1992) had a major impact on reservation policies. The Supreme Court made two key observations:

1. Scope of Article 16(4): The Court held that reservation under Article 16(4) is confined only to initial appointments and does not extend to promotions.
2. Reservation Ceiling: It also held that reservations in public employment should not exceed 50%, barring exceptional cases.

The judgement meant that the long-standing practice of providing reservation in promotions for SCs and STs would lapse after a five-year period (up to November 1997). This created concern that SCs and STs would lose their opportunities for career advancement, affecting their representation in senior positions.

Need for the 77th Amendment

In light of the Supreme Court’s ruling, the Government recognised the need to protect the interests of SCs and STs in public services. Though reservations existed for these groups in entry-level positions, their representation in higher ranks remained inadequate.

To address this, the Government decided to amend the Constitution by inserting a new clause in Article 16 to allow reservation in promotions for SCs and STs. This amendment would restore the ability of States to provide for promotion-reservations and protect the social upliftment of these groups.

The Constitution (Seventy-seventh Amendment) Act, 1995

The 77th Amendment introduced a significant change by inserting clause (4A) in Article 16. The key provisions are as follows:

• Clause (4A) of Article 16 states:
  
  “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.”

This clause empowers the State governments to provide for reservation in promotions to SCs and STs if they believe these groups are underrepresented.

The amendment was enacted by Parliament on 17th June 1995. It legally validated the continuation of reservation in promotions for SCs and STs beyond the five-year limit set by the Supreme Court in Indra Sawhney.

Scope and Importance of the 77th Amendment

Restoration of Promotion-Reservations

Before this amendment, reservation in promotions had no constitutional backing and was vulnerable to legal challenge. The 77th Amendment restored the authority of States to grant reservations in promotions, ensuring that SCs and STs could advance in their careers.

“Adequate Representation”

The amendment entrusts the State with the responsibility to assess whether SCs and STs are adequately represented in services. If they are found lacking, the State can implement reservation policies in promotions.

Focus on Social Justice

By enabling promotion-reservations, the amendment aims to break the “glass ceiling” faced by SCs and STs in public services, helping them reach senior posts and positions of influence.

Not Applicable to Other Backward Classes (OBCs)

It is important to note that the 77th Amendment only covers SCs and STs. Reservation for OBCs in promotions remains governed by Article 16(4).

Implementation by States

Following the amendment, various State governments formulated rules and policies to implement promotion-reservations for SCs and STs. These policies generally included:

• Specified percentages of reserved promotional posts based on the population and service strength of SCs and STs.
• Procedures for identifying posts eligible for reservation.
• Guidelines on how to provide reservation in promotions while maintaining administrative efficiency.

The precise implementation varies among States, depending on the demographic and administrative considerations.

Judicial Interpretation and Legal Challenges to 77th Amendment of Indian Constitution

The 77th Amendment, while crucial, has been subject to judicial scrutiny in later cases.

M. Nagaraj & Others v. Union of India (2006)

The Supreme Court in the Nagaraj case imposed certain conditions on the exercise of powers under Article 16(4A):

• The State must demonstrate the backwardness of the Scheduled Castes and Scheduled Tribes.
• It must establish their inadequate representation in public services.
• It must ensure that granting reservations does not affect the efficiency of administration.

These conditions added a layer of procedural safeguards to ensure that reservation in promotions is applied reasonably.

Jarnail Singh v. Lachhmi Narain Gupta (2018)

In Jarnail Singh v. Lachhmi Narain Gupta case, the Supreme Court reaffirmed the constitutional validity of Article 16(4A) and the Nagaraj criteria. The Court held that:

• The amendment is not violative of the basic structure of the Constitution.
• The three conditions imposed in Nagaraj must be satisfied for valid promotion-reservations.

Reservation Limits and Backlog Vacancies

• The Supreme Court’s 50% ceiling on total reservations remains applicable to promotion-reservations under the 77th Amendment.
• Backlog vacancies arising due to non-availability of SC/ST candidates in earlier recruitment are treated as a separate class of vacancies. However, even backlog reservations cannot exceed the overall 50% limit.

Conclusion

The Constitution (Seventy-seventh Amendment) Act, 1995 is a landmark amendment that restored and safeguarded the rights of Scheduled Castes and Scheduled Tribes to reservation in promotions in State services. It responded to judicial limitations posed by the Indra Sawhney judgement, reaffirming the State’s responsibility towards social justice and equality.