The Rajya Sabha gave its approval after a debate on the 9th. The Hon’ble President of India gave his assent to this Bill four days later on 12th January. This legislation was notified as The Constitution (One Hundred and Third Amendment) Act, 2019 in the Official Gazette, the same day. On 14th January, the Union Ministry of Social Justice and Empowerment issued a Gazette notification stating that the law had come into force.

A path-breaking proposal to amend the Constitution for providing reservations in educational institutions and government jobs was moved, approved and written into the Constitution in seven days flat! Of course, it does not break the previous record of the 39th Constitutional amendment that was approved by Parliament and ratified by more than 50% of the State Legislatures at break neck speed in four days. Law-making in the digital age, where information travels at the speed of light, seems to be somewhat laggardly, compared to the 1970s when jet aircraft barely managed to break the sound barrier.

The RTI Intervention

The amazing speed with which the State machinery moved to craft a law, meant to benefit the economically weaker sections (EWS) of society, is in stark contrast with multiple accountability-seeking laws enacted by Parliament, that are languishing on the Central Government’s shelves. The Lokpal and Lokayuktas Act, 2013 and The Whistle Blowers Protection Act, 2014 are two glaring examples.

However, both these pieces of ordinary legislation, had been through widespread consultation processes at various stages both inside and outside Parliament before enactment. I had also used The Right to Information Act, 2005 (RTI Act) to persuade the then Government to place in the public domain Cabinet Notes and other related materials to at least one of them.

Although that attempt was unsuccessful, a later RTI application was very useful in teasing out the Cabinet Note justifying the regressive amendments to the Whistleblower law. In this case, the Cabinet Note was disclosed at the RTI application stage itself, even though the Bill is pending in Parliament even now.

So nine days after the 10% quota  law  came into force, I submitted an information request to the Union Ministry of Social Justice and Empowerment through the RTI Online Facility seeking the following information:

“1) A clear photocopy of the Cabinet Note along with Annexures, if any, submitted to the Union Cabinet for securing its approval to table the draft Constitution amendment Bill that eventually came to be enacted as The Constitution (One Hundred and Third Amendment) Act, 2019, as published in the Gazette of India (Extraordinary) dated 12th January, 2019;

2) A clear photocopy of all correspondence and file notings pertaining to the subject matter of the said draft Constitution amendment Bill;

3) A clear photocopy of any census or survey data or study or research report along with recommendations received from any committee or commission that constitutes the material which formed the basis of the said proposal to amend the Constitution; and

4) A clear photocopy of all correspondence received from the office of the Prime Minister in relation to the said proposal to amend the Constitution.
Kindly note that this information is required to be disclosed as per the first proviso under Section 8(1)(i) of the RTI Act, read with Section 26(1)(c) of the RTI Act.”

The CPIO’s reply

As the 10% quota law had received widespread support, did not involve any sensitive issues connected with national security, and had already come into force, I was hoping that the Social Justice Ministry would disclose all the information sought in the RTI application. Surprisingly, the Central Public Information Officer (CPIO) thought otherwise. He rejected the entire application within a week of receiving it (a speed matching that of the legislative exercise itself!) stating as follows:

“With reference to your online RTI application…it is informed that as per the provision under Section 8(1)(i) of RTI Act, 2005 “Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after decision has been taken, and the matter is complete or over; Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;” the requisite information cannot be provided.”

What is wrong with the CPIO’s reply?

I believe, the CPIO’s reply is erroneous for the following reasons:

1) First, Section 8(1)(i) of the RTI Act – the exemption relating to Cabinet papers – which the CPIO quoted in extenso in his reply itself permits the disclosure of all the information I had sought, after the matter is complete or over. That is the meaning and requirement of the first proviso underlying that exemption. The 10% quota law has already come into force. Nevertheless, the CPIO seems to think that the matter is neither complete or over. I hope I will not have to wait until the objectives of the 10% quota law are achieved. Given the fact that similar quota laws for the Scheduled Castes (SCs) and the Scheduled Tribes (STs), which are almost eight decades old, have not yet achieved their objectives, I may not be alive until the 10% quota law achieves its purpose. Despite quoting the proviso requiring proactive disclosure of Cabinet papers,  in his reply, the CPIO does not seem to have applied his mind to its import, thanks to the haste with which he made his decision on the information request.

2) Second, in a June 2012 decision, the Central Information Commission (CIC) had issued a direction that all Cabinet Notes and materials related to Bills tabled in Parliament must be placed in the public domain within the next seven days. In that case, I had sought a copy of the Cabinet Note relating to the Nuclear Safety Regulatory Authority Bill, 2011, which sought to amend the RTI Act in a regressive manner. Thankfully, that Bill lapsed with the dissolution of the 15th Lok Sabha. Of course, a nitpicking CPIO may argue that the direction was issued only to the Department of Nuclear Energy. However, it is the principle of transparency that must be taken into account. Citizens must have access to all materials pertaining to legislative proposals introduced in Parliament, so that they may discuss it and share their views with their elected representatives in Parliament. This will enable a true representation and voicing of the will of the people in Parliament whose members they elect and whose expenditure they finance through the taxes they pay.

Transparency and public consultation processes breached

The entire legislative exercise surrounding the 10% quota law lacked any kind of transparency or a consultation process with the people of India:

1) On 7th January, 2019, the media reported that the Union Cabinet had approved the 10% quota proposal for tabling in Parliament. Strangely, there is no press release about this subject for that date on the website of the Press Information Bureau or on the website of the Social Justice Ministry. The first mention of this subject is contained in a press release of the next day, namely, 8th January, where the Hon’ble Prime Minister congratulated the Lok Sabha for passing the constitution amendment Bill. Friends in the media informed me that “sources” in government shared the information about the Cabinet decision on which they reported. This is strange practice because, the Handbook on Writing Cabinet Notes clearly indicates that a draft press note about the Cabinet decision is an essential annexure to the Cabinet Note itself (see paras 92-97 of the Handbook). The lack of a formal press note about the 10% quota proposal after it passed muster with the Union Cabinet is perplexing, to say the least.

2) Further, the 10% quota amendment proposal did not comply with the Pre-Legislative Consultation Policy adopted by the Central Government in 2014. As per this policy every department mooting a legislative proposal is required to place the draft text of the legislation in the public domain for thirty days, invite people’s suggestions and views, incorporate any, if so determined, tabulate all the suggestions received and attach it to the Cabinet Note along with the suggestions received in the Inter-Ministerial Consultation on the draft Bill. However, none of these measures were complied with in relation to the 10% quota proposal.

3) In a decision delivered in June 2010, the CIC had directed the Chief Secretary of the Government of Delhi to “develop a credible mechanism in all departments for the proactive and timely disclosure of draft legislations/ policies and amendments theretor existing laws/ policies in the public domain, as required under Section 4(1)(c) of the RTI Act, during the process of formalisation and before finalisation.” The Central Government might take the plea that the ruling applied to the Delhi Government only. However the draft Bill in question was for amending the Delhi Police Act – a subject over which the Union Home Ministry exercise complete control through the Lt. Governor of Delhi. The 10% quota Bill ought to have been made public before being tabled in Parliament, but that was not the case.

I will do the usual appeals against the CPIO’s rejection. Sadly, the Quest for Transparency remains a quest even with regard to legislation that has will potentially benefit a large proportion of the citizenry.

Exclusion criteria for 10% EWS Quota not found on Social Justice Ministry website

On 17th January, 2019, three days after the 10% Quota amendment came into force, the Union Ministry for Social Justice and Empowerment issued an Office Memorandum (OM) detailing the criteria for excluding persons who would not be eligible to lay claim to the 10% reservation of seats and posts. Interestingly, this OM is labelled: “For Internal Circulation Only” and cannot be located on the Ministry’s website. However, it is included in multiple OMs issued by other Ministries and Departments to entities under their charge for identifying posts that may be reserved under the 10% quota law. I was able to access this OM on the website of the Indian Institute of Management, Vishakhapatnam. Why is the nodal Ministry for implementing this law not publishing the OM on its own website is a mystery?

Some higher educational institutions are excluded but related specialist jobs are covered by the 10% quota

Many departments and public authorities have begun the exercise of identifying seats and posts that will be covered by the 10% quota amendment. The University Grants Commission also issued an OM in this regard listing out all institutes of higher education that are required to identify seats for EWS category. Interestingly, in addition to minority educational institutions, this OM exempts eight Institutions of Excellence and their constituents from this requirement. They are:

1) Homi Bhabha National Institute, Mumbai and its constituent such as BARC and the Institute of Plasma Research and eight others;
2) Tata Institute of Fundamental Research, Mumbai;
3) North-Eastern Indira Gandhi Regional Institute of Health and Medical Science, Shillong;
4) National Brain Research Centre, Manesar;
5) Jawaharlal Nehru Centre for Advanced Scientific Research, Bengaluru;
6) Physical Research Laboratory, Ahmedabad;
7) Space Physics Laboratory, Thiruvananthapuram; and
8) Indian Institute of Remote Sensing, Dehradun.

Under Section 4 of The Central Educational Institutions (Reservation in Admission) Act, 2006, read with its appended Schedule, these institutions of excellence are exempted from reserving seats for members of the Scheduled Castes, Tribes and Other backward Classes also. However, graduates of these institutions will be eligible for reservation in jobs that match their training. For example, the Department of Space has issued an OM to institutions such as ISRO, SDSC and VSSC all of whom are involved in launching or tracking satellites in space, to take necessary action to implement the 10% EWS quota in jobs.

So a student who is eligible for this EWS quota will not get the benefit of reservation in admissions while studying at any of these eight institutions of excellence, but can lay claim to jobs reserved in this category in ISRO, SDSC or VSSC, after graduation! A simple question that requires a convincing answer is — when students of EWS category are expected to make it to these institutions of excellence, purely on the basis of merit, why should jobs be reserved for them after graduation? Merit should be the principle for recruitment as well. Or am I not getting the logic behind this dichotomy? I hope readers will enlighten me on the logic of this contradiction.

Courtesy: Counterview.org
 

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As Modi government’s 10 per cent reservation for the poor of the upper castes is challenged in the Supreme Court, and as some leaders applaud this decision, Abhisar Sharma in ‘Bol ke Lab Aazaad hain Tere’ asks some pertinent questions. Why does the Modi government take decisions in haste? Be it demonetisation, GST, late night coup in CBI, and now the reservation.

Courtesy: Newsclick.in

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New Delhi: The Modi government’s reservation bill to grant 10 per cent quota in government jobs and education for upper caste poor was passed by the Rajya Sabha yesterday. It is now just one legislative step away from becoming law. This quota is over and above the existing 50 per cent quota for the Scheduled Castes (SCs), Scheduled Tribes (STs) and the Other Backward Classes (OBCs), taking the total reservation to 60 per cent. But giving reservation doesn’t mean that the word of the letter is being followed.

Replying to a question posed in Lok Sabha, Jaswant Singh Bhabhor, minister of state in the Ministry of Tribal Affairs, said that 47% of reserved positions meant for Schedules Tribes in various central govt ministries and departments were vacant.

In 2017, out of a backlog of 6,887 vacancies reserved for Scheduled Tribes (STs) in various central government ministries and departments, only 3,595 were filled.

Bhabhor provided the figures in reply to a question raised in the Lok Sabha on January 7. The reply included data from 2016—when around 30 per cent of the vacancies reserved for STs remained unfilled.

“As per information compiled by department of personnel and training in 10 central ministries/departments which includes their public sector banks/financial institutions, central public sector undertakings etc, out of 22,829 backlog reserved vacancies for STs, 15,874 vacancies were filled up during the period from April 1, 2012 to December 31, 2016,” the minister told the Parliament.

While, on one hand, the minister told the Parliament about the unfilled reserved vacancies, on the other, responding to a different question, he informed the House about the decline in funds for other economic support schemes for STs, a report by Down To Earth said.

Giving details about the funds earmarked and utilised under the ‘Mechanism for Marketing of Minor Forest Produce (MFP) through Minimum Support Price (MSP) scheme and development of value chain for MFP’, Bhabhor told the Parliament that while the allocated funds for the scheme has come down from Rs 163 crore in 2013-14 to Rs 100 crore in 2017-18, the utilisation of those funds have plummeted from Rs 112 crore to a mere Rs 8.59 crore in the same period.

Although the figures for the year 2017-18 (up to December 31, 2018) are relatively better, with the allocation of Rs 130 crore and utilisation of Rs 93 crore.  In his reply, the minister also provided figures for the decline in loan amounts to STs under the National Scheduled Tribes Finance and Development Corporation (NSTFDC).

NSTFDC is a body under the Ministry of Tribal Affairs, formed to economically uplift the STs through financial assistance. NSTFDC provides loans through its state channelizing agencies, certain public sector/cooperative or regional rural banks under four schemes—Term Loan scheme, Adivasi Mahila Sashaktikaran Yojana (AMSY), Micro Credit Scheme for Self Help Groups and Adivasi Shiksha Rrinn Yojana (ASRY).

Figures for the loan amount under all these schemes, given in Bhabhor’s answer, show a downward trend. Under the Term Loan Scheme, the loan amount came down from Rs 125 crore in 2014-15 to Rs 27 crore in 2018-19 (till December 31, 2018). In the same period, the beneficiaries of the scheme came down from 14,836 to 6,164.

Under the Micro Credit Scheme, in the same period, loan amount increased from Rs 4 crore to Rs 6 crore, with beneficiaries increasing from 3,186 to 5,972. However, in 2015-16, the loan amount was Rs 55 crore and the beneficiaries were 26,080.

For AMSY, the loan amounts came down from Rs 23 crore to Rs 0.61 crore between 2014-15 and 2018-19. During the same period, the number of beneficiaries declined from 11,161 to a mere 202. With ASRY, while the loan amount went down from Rs 1.33 crore to Rs 1.09 crore between 2014-15 and 2018-19, the number of beneficiaries increased from 17 to 39.
 

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New Delhi: As the outrage over the arrests of activists is overflowing across all parts of the country, the Supreme Court released a landmark judgement on reservation in jobs and education on Thursday which could have far-reaching effects on the people of India.
 
SCs/ STs will not lose their caste status in their state of origin and will be entitled to reservation benefits there, but not in the state to which they have migrated to if their caste is not notified there.
 
A person belonging to a Scheduled Caste (SC) or Scheduled Tribe (ST) in a state will not be deemed to be SC or ST in another state to which he/ she migrates for the purpose of employment or education, the Supreme Court clarified on Thursday.
 
The bench with a majority of 4:1 held that as far as Delhi is concerned, the central reservation policy regarding SC/ST would be applicable in the city. It added that “pan-India reservation” would apply in the case of Delhi. This means that in Delhi, for both central services and those under the union territory, reservation will be open to all SCs/ STs from across the country.
 
A five-judge Constitution bench of Justices Ranjan Gogoi, N V Ramana, Mohan M Shantanagoudar, S Abdul Nazeer and R Banumathi unanimously held that “a person who is recognised as a member of Scheduled Castes/ Scheduled Tribes in his original state, will be entitled to all the benefits of reservation under the Constitution in that state only, and not in other states/ union territories and not entitled to the benefits of reservation in the migrated state/ union territory”.
 
“P S Krishnan, former secretary, welfare ministry, said the SC had only reiterated the Constitutional provisions of Articles 341 and 342, which define SCs/STs with respect to any state or union territory. “Someone who is an untouchable in one state may not be so in another. For instance, the dhobi caste is treated as untouchables in North India, so are the Vannan caste of washermen in Kerala, but they are not considered to be SC in the rest of South India,” he said in a report by The Indian Express.
 
On Thursday, the Supreme Court also said that factors like an inadequate representation of scheduled castes and tribes in government jobs, instead of their backwardness, need to be considered while granting quota to them in promotions.
 
“It also observed that the members of SC/ST communities were constitutionally presumed to be backward. The observations came from a five-judge constitution bench headed by Chief Justice Dipak Misra, which reserved its verdict on a clutch of petitions seeking reconsideration by a seven-judge bench its 2006 verdict in the M Nagraj case which had put conditions for granting quota benefits in job promotions to employees belonging to the Scheduled Castes (SCs) and Scheduled Tribes (ST) communities,” the Business Standard report said.
 
The Centre and various state governments have sought reconsideration of this verdict, saying it has virtually made grant of quota in promotions for SC/ST unworkable. They had also assailed it on various grounds, including that the members of the SC/ST communities are presumed to be backward and the stigma of caste still remains with them.
 
“The observation came when senior advocate Rakesh Dwivedi opposed the grant of quota in promotions in higher posts, saying “crutches are not forever and crutches are not for all. Generations (of SC/ST) which were crippled have gone and the generations which crippled them have also gone.”  “The object of reservation being social advancement and empowerment of the SC/ST, in the backdrop of historical exploitation, the State has necessarily to focus on continued existence of backwardness and the wound of historical exploitation,” he said, adding as an SC/ST employee goes up in life, the justification for reservation gets diluted,” it reported.
 
“He said the continued backwardness of a class should be the basis for grant of reservation and a person, who has joined the service, cannot be allowed to “leapfrog and leapfrog” over general category employees, just because his fellow caste men are being exploited somewhere in a village,” the report added.
 
“There should not be quota in promotions for higher services as the presumption of backwardness of SC and ST employees “vanishes” once they join government service, he had claimed. He had also said the quota in promotions for SC/ST may be continued for class-IV and class-III services, but should not be allowed for higher services. Earlier, the top court had questioned the logic behind granting quota in promotions in government jobs to the kith and kin of affluent persons among the SC and ST communities who have been holding high official positions. It had asked why the ‘creamy layer’ principle, used to exclude the affluent among other backward classes (OBCs) from enjoying the fruits of reservation, cannot be made applicable to deny quota benefits in promotion to those affluent among the SCs and STs,” said a report in The New Indian Express.

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TISS cutback of scholarship funds for SC-ST-OBC students aimed at reducing their presence in higher education
Adivasi Discontent in Gujarat Rises Over BJP Reservation Policy

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The Yogi Adityanath government in UP has decided to scrap the 20 per cent quota for Muslims provided under various schemes launched by his predecessor, Akhilesh Yadav.
The Yadav led Samajwadi party government had provided for this quota in some 85 different government schemes.

The move is in with Adityanath’s apparent bid to revert many of the schemes started by Yadav. The BJP government has also knocked off the word “Samajwadi” from many of the schemes, renaming them with “Mukhyamantri”.

"We are in the process of studying all the schemes. We will continue those which we consider are important but scrap others," deputy CM Keshav Prasad Maurya told the media.
 
The BJP justifies the proposed move on the ground that its government is committed to end all schemes that are aimed at “appeasement of specific castes or communities.
 
The decision of the proposed move comes within days of a decision by the government not to distribute some 60 lakh ration cards printed by the previous government.
 
This is because these ration cards had photographs of Akhilesh Yadav.
.
 
 
 
 

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With this decision taken on December 27, 50 per cent posts would be filled through reservation in both services with 21 per cent posts reserved for Extremely Backward Class (EBC), 12 per cent for Backward Class, 16 per cent for Scheduled Castes (SC) and one per cent for Scheduled Tribe (ST).

Earlier there was a 27 per cent quota. Of the 27 per cent reservation currently followed in the subordinate judicial services, EBC was getting 10 per cent, and SC and ST were getting 16 and one per cent respectively, he said.

This means that 50 per cent quota would be implemented in appointment of both services conducted by the Bihar Public Service Commission (BPSC) to fill the posts of Judicial Magistrates and Munsif Magistrates and appointments conducted by the Patna High Court to fill the posts of Additional District and Sessions Judges.

"In the light of the judgement delivered by the Supreme Court on September 29 in the State of Bihar vs Dayanand Singh, the cabinet today gave its nod for implementation of 50 per cent of quota for direct appointment in both subordinate judicial services and superior judicial services after having due consultation with the Patna High Court and BPSC," General Administration Department Principal Secretary Dharmendra Singh Gangwar told reporters here.

Gangwar, who was accompanied by Cabinet Secretariat Department Principal Secretary Brajesh Mehrotra, said at present there was 27 per cent reservation in the appointment of subordinate judicial services. Gangwar said the cabinet decided to implement horizontal reservation in both services, where 35 per cent reservation would be given to women in each category, besides one per cent post would be reserved for ortho-physically differently-abled persons.

The BPSC had on August 13 conducted preliminary tests to fill the posts of 29th Bihar Judicial Services (Lower Division and Senior Division).
 
 

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