Images of injured protesters are being widely shared on social media platforms. These pictures evoke strong condemnation of the Sheikh Hasina regime. There are fears that the student wing of the ruling party is being encouraged to confront the protesters. The establishment is desperate to reduce the matter to a case of ‘law and order.’ The establishment-backed media are attempting to propagate the narrative of a clash between pro-quota and anti-quota student groups while defending the criminal actions of state authorities.

While more details of the police crackdown may emerge soon, and the exact number of protesters killed and injured may be ascertained, many facts are beyond doubt. First, the clash has been fuelled by the fight over limited government jobs due to massive privatization. It is a hard fact that the Bangladeshi economy cannot generate employment or address the legitimate demands of the student community due to its pro-rich economic policy. The Awami League government, led by Sheikh Hasina, has failed to provide relief to the people. As a result, it is becoming increasingly unpopular. However, the illegitimacy of the ruling establishment is evident not only in Bangladesh. Such a phenomenon is also witnessed elsewhere in South Asia.

Unfortunately, authoritarian tendencies and sectarian politics are weakening democracy from Dhaka to New Delhi. Ruling establishments across South Asia, instead of addressing the issues, are attempting to divide the people through concocted conflicts. In our region, narratives of Hindus versus Muslims and national versus anti-national are being propagated by the Hindu-right regime, while the current Bangladeshi establishment is attempting to foment polarization between freedom fighters and razakars (traitors). The term ‘razakar’ is an Urdu word that means volunteer. In Bangladesh, opponents of the Awami League were pejoratively called razakars for allegedly supporting Pakistan-backed militias.

Reviving her pet narrative, Prime Minister Sheikh Hasina has recently called the protesting students razakars. Instead of listening to the protestors, she chose to dismiss them and treat dissent as a crime. The world condemns the use of such divisive language in the strongest terms. Who will tell Sheikh Hasina that she is the leader of 170 million Bangladeshi citizens? She has taken an oath to treat all citizens without discrimination. She must not forget that raking up past horror would only weaken the present. Whatever happened during the Bangladesh Liberation War is a part of history and that cannot be a ground to judge a person who was not born at that moment.

Consider the example of British India. Many of the police officers and civil servants who worked for the British Raj until August 14/15, 1947, were considered freedom fighters disloyal to the Raj and criminals. However, the independent governments, headed by freedom fighters, did not attempt to take revenge on the officers. Nor was any attempt made to punish their children for the loyalty of their parents to the British Raj. Similarly, many supporters of the Congress and the Muslim League changed their loyalty after Partition and were not punished for their past associations. Similarly, the trope of the freedom fighters versus razakars can be useful for the ruling party to gain votes. But it cannot take Bangladesh as a nation to a big height. The sooner such a divisive narrative is buried, the better it will be for Bangladesh as a nation.

The reason why I cannot uphold the politics around divisive and emotive issues is because it hides the real fault lines in society. This is not to say that politics should become bereft of ideology. In fact, conflict, not cooperation, is a bigger reality of a property-based society. No one can deny that there is a fundamental conflict between the interests of the workers and the owners of all the resources. Similarly, in the South Asian context, caste, far more than religion, is the basis for the distribution of status, power, and wealth. Gender disparity, too, should also be a key factor in our analysis.

But it is also seen that the ruling party, which serves the dominant interests of society, always tries to hide the axis of inequality and discrimination. To hide them from the public discourse, imaginary issues and warring groups are created. It appears that the policy of giving 30 percent reservation to the families of the freedom fighters is a method to perpetuate the narrative of freedom fighters versus traitors discourse in Bangladesh. In this context, the protesting students are justified in opposing the 30 percent quota for the families of the freedom fighters. It is because no scientific study can show that the families of the freedom fighters are under-represented in Bangladesh and are historically, socially, and educationally marginalized.

Evidence suggests that the recent decision of the Bangladesh Court to uphold the 30 percent reservation was taken under political pressure. For, Sheikh Hasina, who is facing a big crisis of legitimacy, hopes to consolidate her support base by introducing a quota system for the family of the freedom fighters. She is quite aware of the fact that it would definitely be opposed by those who have not got the status of freedom fighters. However, she believes that the lingering controversy would create a sharp division in society. She hopes that such a polarization would draw their alienated supporters back to the Awami League. That is why it lends credence to the allegation that the student wing of the ruling party is given state protection to attack the protestors.

However, as the global community watches the brute use of power, her game plan seems to have backfired. Her statement shows that she is feeling anxious and getting nervous in the wake of the wider condemnation against her government. The use of force against the student community has dented her image of being a “liberal” face among Bangladeshi politicians.

While expressing my solidarity with the protestors against the illogical quota, let me also make it clear that I am not comfortable with the language of “meritocracy” emerging within the protesting groups. It is true that my assumption is based on media reports as I could not have access to protestors. However, I have read in the newspapers that protestors are demanding that “merit” should be followed in the allocation of jobs and that the quota should be kept to a “minimum” level. Both these arguments appear to be elitist in nature.

There should not be any confusion that the basic goal of affirmative action, including reserving seats in educational institutes and employment, is to ensure proportional and effective representation of historically, socially, and educationally marginalized communities including minorities. Merit or poverty cannot be grounds to fix a quota for any particular person or section.

The reason why I do not accept the merit logic is because merit is a trope invented by the elites and socially dominant classes and castes. The language of merit is employed to instil a sense of inferiority among the weaker sections and to deny them equal opportunities. The elite sections often repeat the term merit every day but no one has ever given a definition of merit that is acceptable to all. For example, who is considered meritorious in Bangladesh? Is he a person good at English? Or a candidate who can speak fluent Bangla? Or an Adivasi who can only speak her own language and knows very little of English or Bangla? If public examinations were conducted in the Adivasi language, all those proficient in English and Bangla would fail.

For me, only the marginalized communities, including minorities and indigenous communities, deserve to be given reservations. The marginalization can be defined by an objective study and it should not be left to the whim of any particular leader. While the principle of equal opportunity should be given to all, historically, socially, and educationally marginalized social groups can be included in decision-making by ensuring proportionate and effective representation. That is why, although some members of the dominant groups are found to be poor, they do not deserve to get reservations. This is because their social group is not underrepresented. The state, apart from the reservation, is within the ambit of the democratic Constitution to make welfare policies for economically poor people.

As is evident here, the logic of reservation is so simple to grasp, yet so much confusion has been created around it by the elites. Reservation is one of the means to achieve social justice in society. The principle of social justice is indispensable in a stratified society. Even official figures say that Bangladesh, like other countries in South Asia, is a highly unequal society. A handful of people, who are ranked higher in status and possess a large share of resources, use all kinds of unfair means to check the entry of the marginalized into the process of decision-making. That is why, seats are reserved to ensure the entry of the marginalized groups into the process of policy-making.

Dr. B.R. Ambedkar, who was elected from Jessore and Khulna constituencies from undivided Bengal, now part of Bangladesh on the eve of Partition or the creation of Pakistan, has fought for proportionate and effective representation of minorities throughout his life. His definition of minorities was much broader as it included both religious and historically and socially marginalized groups. Speaking on the last day of India’s Constituent Assembly on November 25, 1949, Dr. Ambedkar, the drafting chairman of the Constitution, underscored the indispensability of representation in any democracy in the following words: “Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of the state such as the Legislature, the Executive, and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”

At this critical moment, democratic forces stand in solidarity with the protestors against the illogical freedom fighter quota because such a social group is a creation of political elites desperate to gain political mileage. That is why there is no substantive evidence to show that the freedom fighter category as a social group is historically, socially, and educationally discriminated against. No doubt, they suffered a lot during the Liberation Movement. The principle of justice demands that they should be rehabilitated and properly compensated.

But such solidarity is not unconditional. Our solidarity cannot go along with those protestors who are opposing the quota in the language of merit. Similarly, the logic of a “minimum” quota coined by some protestors is also not democratic. Instead, the protestors should immediately give up such elitist tendencies and firmly uphold the proportionate and effective representation of all marginalized communities.

(Abhay Kumar was a student activist at Jawaharlal Nehru University, New Delhi. Email: debatingissues@gmail.com)

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To better understand the controversy, it is helpful to refer to the impugned manifesto. While the Congress manifesto (Nyay Patra) talks about growing inequality in the country between richest of Indians and the large number of poor, it only says that “We will address the growing inequality of wealth and income through suitable changes in policies.” 

In the same fashion, Nyay Patra mentions that “Congress will conduct a nation-wide Socio-Economic and Caste Census to enumerate the castes and sub-castes and their socio-economic conditions. Based on the data, we will strengthen the agenda for affirmative action.” Ironically, the manifesto notes that Congress “guarantees” that it will pass a Constitutional amendment to raise the 50 per cent cap on reservations for SC, ST and OBC.

Why SC/ST reservations cannot be transferred to Muslims (legally)?

Muslims in India are given reservations only under the categories of Other Backward Classes (OBC) and/or Socially and Economically Backward Classes (SEBC), the lists for the same are prepared by the Central and State governments respectively. 

Effectively, this means that any increase in Muslim quota can be only undertaken at OBC/SEBC level, without touching the integrity of the SC/ST reservation. Furthermore, as the ST/SC reservation is a Constitutional reservation, nobody can remove these categories from the benefits of reservation unless a Constitutional amendment is made in that regard, which is politically unsustainable. Furthermore, SC/ST converts from Islam are not eligible for reservation benefits under SC/ST category, and the case is pending before the Supreme Court in this regard.

The Constitution (One Hundred and Fifth Amendment) Act, 2021 modifies Articles 338B, 342B, and 366 of the Constitution to allow state governments to prepare their own socially and economically backward classes lists for the purpose of giving reservation to these communities, apart from the ones already covered under the OBC list prepared by the Central Government. This amendment had to be carried out because after the passage of 102th amendment Act, followed by the Supreme Court judgement in Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra, the court had held that due to 102th amendment Act states did not have the power to make their own SEBC lists.

How do the Muslims fare within OBC/SEBC reservation?

While the possibility of a religion, if it is proved to be socially backward, constituting a class in itself cannot be ruled out, much of OBC reservation today is also based on socio economic indicators of caste groups within communities. Thus, it is not the religious identity per se, but caste identity (irrespective of religion) on the basis of which OBC reservation is generally granted. Though Andhra Pradesh did provide reservation to Muslims exclusively on the basis of religion, the State justified it on the basis that the whole religion is backward in the state. Pertinently, Muslim quota did not affect the quotas of other OBC groups, as the former had a separate 5% reservation over and above the traditional OBC list. Similarly, Karnataka provides 4% OBC reservation to Muslims out of total 32% earmarked for OBC category, but this has not significantly affected share of other OBC groups as the proportion for Muslim reservation has remained constant throughout. 

In any case, proving backwardness of a group (caste/religion) before granting reservation remains a legal requirement, whether it is for group A or group B, irrespective of caste or religious considerations. 

In the past courts have cancelled the reservation granted to the groups for the absence of valid data to support the claims of backwardness for incorporating these groups under OBC/SEBC reservation. The most recent example of this can be found in Jaishri Laxmanrao Patil vs The Chief Minister and Ors., where the Supreme Court quashed the SEBC Act of Maharashtra state as amended in 2019 for breaching the 50% limit on reservations, as the court did not find any exceptional circumstances for giving flexibility to override the 50% limit set by the apex court in Indra Sawhney vs. Union of India.

Muslim castes under OBC/SEBC lists in Gujarat 

The list of SEBC castes/groups prepared by the state government of Gujarat has 30 entries (out of over 140 such entries) covering numerous Muslim castes under its SEBC reservation policy. Similarly, Central list of OBCs for the State of Gujarat prepared by the National Commission for Backward Classes (NCBC) has 23 entries in which various Muslim castes are provided benefit of OBC reservation. Thus, the fearmongering that Muslims will take up the space of other groups in the SC/ST/OBC categories might not be true when the PM Modi’s home state itself has generous provisions for various Muslim caste groups, quite reasonably so. 

Interesting, in 1985 when the Madhavsinh Solanki of the Indian National Congress was ruling the state of Gujarat, he increased the SEBC reservation from 10% to 28%, calculating his political moves on the basis of KHAM strategy (Kshatriyas, Harijans, Adivasis and Muslims). The move was profoundly rewarding, with the INC bagging 149 seats out of 182. 

Importantly, the Baxi Commission report –a decade before in 1975—identified around 35.5% of population in the state as backward, and the move to increase the SEBC reservation in the state was strengthened on that basis. Later, after studying that Baxi Commission report that was submitted in 1975-76, the government issued a resolution in 1978 adding 82 castes/classes/groups in the SEBC category (with 21 such entries for various Muslim caste groups). While the Solanki government benefitted from increasing the SEBC reservation from 10% to 28%, it also sparked massive protests and riots in the State, especially in Ahmedabad as the people starting opposing OBC quotas, which together with ST and SC quotas took the total reservation in the state to 49% percent. Notably, Gujarat also remains prominent in the 1980s for anti-Mandal riots, which eventually became anti-Muslim, as the opposition to KHAM gathered pace (and as Kshatriyas lost ground to their political rivals Patidars with the emergence of the BJP).

Despite changes in the fortunes and alterations in the government, with the BJP ruling the state since 1995, there has been no demand or attempt to take away reservations provided to sections of caste groups within Muslim community (which was initially provided on the basis of their backwardness alone). 

This reality –given the fact that Narendra Modi himself ruled the state for a significant 17 years — makes it even more ironical that his recent campaign claims against the Indian National Congress (INC) sound hollow. Gujarat has sat comfortably with 12-15 Muslim OBC caste groups enjoying the benefits of reservation as per the Baxi Committee report. So, in spite of Prime Minister making grand claims about Muslims’ taking away resources or reservations of the SC/ST/OBCs, the home state of the PM has since long identified and understood that large sections of Muslims are still fairly backward, and the last 25 years of BJP rule has not made any moves to exclude these Muslim caste groups from the state list of SEBCs!

The Gujarat state list of SEBCs may be seen here

Related:

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Equality and a Level Playing Field 

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The announcement was made by minority affairs minister, Nawab Malik in the on going assembly session today. Maharashtra government will bring in a law to give five per cent reservation to Muslims in educational institutes, state minister for minority affairs Nawab Malik said in the Legislative Council Friday.

“The Bombay High Court has upheld the five per cent reservation in educational institutes given to Muslims in 2014. The government will soon bring a law to provide that benefit,” Malik said, responding to a question by Congress legislator Sharad Ranpise.

The minister further added that the government will bring the law as per the Constitution, and it will stand in court. “The government will take appropriate decision on bringing in the law before school admissions start in June,” he said.

In a written reply to a starred question on Muslim reservation by Ranpinse, Malik said the government had given five per cent reservation to Muslims in government jobs and educational institutes through an ordinance in July 2014. “Petitions were filed against it, and the Bombay High Court, in its interim order in November 2014, upheld five per cent reservation in government and government-aided educational institutes. But it had stayed the reservation given in private educational institutes and government jobs,” said the minister.

Malik further said that the ordinance promulgated in July 2014 for the quota lapsed in November 2014, as it was not converted into a law. The benefit was planned by the then Congress-NCP government under Prithviraj Chavan, but the BJP-led government that came to power in October 2014 ruled out the reservation to Muslims on religious grounds, citing various Supreme Court and High Court rulings.

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The issue is of relevance since Mohan Bhagwat raked up the issue of reservation within a fortnight after Article 370 providing special status to Kashmir was abrogated. Mohan Bhagwat speaking at Gyan Utsav event at IGNOU in New Delhi on August 18 called for a discussion on the contentious issue of reservation in a “harmonious atmosphere”. Although this wasn’t the first time the RSS chief was pushing forward the debate around reservation, the present timing is of significance.

So far as constitutional provisions are considered, Article 370 providing special status to Kashmir is listed in part twenty one containing Temporary, transitional and special provisions. Article 46 on the other hand providing the basis for affirmative actions commonly called reservation is contained in part four of the constitution as one of the Directive Principles of state policy. The two provisions unrelated though have one thing in common, the constituent assembly debates establish that both were included in the constitution as a temporary measure.

Article 370 was included as a special provision which was supposed to be effective till the time Kashmiris themselves decided upon their fate as per the guidelines mentioned in their constitution. It was other matter that since after the dissolution of the constituent assembly of J&K and after the refusal of India to withdraw it’s army and create enabling atmosphere for conducting a plebiscite, and after the numerous presidential orders that diluted the ambit of Article 370, it’s nature as a temporary provision had changed to being permanent at least in practice.

Similarly the provision for affirmative actions in the form of reservation were in principle a temporary relief with the aim that the historically marginalized and oppressed sections would be provided with certain preferential treatment till the time they achieve a socio-economic status at par with the fellow citizens. However, the widely prevalent numerous social malaise and demand for inclusion in mainstream from representative voices have ensured that the range of affirmative actions only gets wider with time instead of being phased out.

Just like the nationalistic politics of mainland India ensured the dilution of Article 370 & changed its nature from temporary to permanent, it was the caste politics and evils associated with caste that prolonged the concept of reservation.

Sangh which has forever been against reservation, after abrogation of Article 370 is smelling an opportunity and is smartly trying to push the debate against reservation by raising questions that reinforce in public memory the in principle temporary nature of this extraordinary provision. A commonly posed question by Sangh and it’s affiliated outfits is why is the provision of reservation based on caste and not on income. Another question they ask which underlines the temporary nature of reservation is that “how long” the reservations will be given on caste. Mohan Bhagwat in the IGNOU event repeated this question and urged people to engage in a dialogue around the subject, sufficiently indicating that the time has come for temporary provisions to be done away with.

It’s in the interest of citizens that they exercise caution and guard themselves from falling prey to any such propaganda. The Dalits and OBC’s who are nurturing ambitions of an upward mobility and have developed Hindutva affinity after investing their time and resources in the last five years should be very careful of the tide of communal polarization that has swept them off their foot. In their fit of insanity before rejoicing at the injustice done to Kashmir, they must think about their own future as to what would it be to be robbed of the constitutional protection, to be once again reduced to the level of serfs in a Brahmanical structure.

Md. Aariz Imam is a Jamia Millia Islamia alumni, freelancing for citizen journalism portals reflecting upon the old and contemporary from the sub altern’s point of view .

Courtesy: Counter Current

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Image Courtesy: Deccan Herald

He invited Mr Bhagwat to inaugurate a ‘historic national consultation or a round table conference on reservation’ on September 24, the Poona Pact day, or on any date of his choice in the month of October at Bengaluru . According to him, constitutional experts, legal luminaries, social thinkers, experts from different fields and leaders from various organizations and political parties will also be invited to this consultation programme.

He also claimed that ‘dalit thinkers are always having an open minded approach towards all types of criticism on all policies and thoughts’ and that ‘In spite of sharp reaction given by eminent political leaders like Mayavathi, Ram Vilas Paswan, Ramdas Athawale, P L Punia and others, the dalit thinkers and activists are always ready to have a conversation, in a harmonious atmosphere, with anti-reservationists’

Many Dalit leaders including Chandrasekhar Azad have challenged Mohan Bhagwat for a debate on reservation ever since he brought up the contentious topic during a talk August 19, saying “that there should be open-hearted debate pertaining to reservation given to SC/ST/OBCs” , leading many to wonder if the abrogation of reservations was on the cards. 
 

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CUK had invited applications for 69 teaching positions through an advertisement issued on 14 June 2019. Among them 15 posts were for professors, 29 for associate professors and 25 for assistant professors in the departments of humanities, science, commerce, education, law, social sciences and languages.

In the original advertisement, among the 44 posts of professors and associate professors, none were reserved for the OBCs while among the 25 posts of assistant professors, five were set aside for them. Three posts of professors were reserved for SCs and one for STs. Of the 29 posts of associate professors, five were reserved for SCs and three for STs. 

Except for OBCs, positions were assigned for all other categories, including Economically Weaker Sections (EWS).

Following protests, the university administration issued an amended advertisement on 5 July 2019, reserving three (of the 15) posts of professors and seven (of 29) posts of associate professors for the OBCs. 

Courtesy: Indian Cultural Forum
 

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The argument against affirmative action or reservations has been obfuscated with false arguments around “merit” being posited; displaying a blind sightedness towards the historical marginalisation of oppressed groups. One of the most stark manifestations of this marginalised is caste based oppression. The myth spread by dominant caste groups is that affirmative action interferes with the opportunities of the “General” category groups and impacts the “efficiency” of administrative functions.

A recent judgment by a two-judge bench of the Supreme Court, comprising Judges UU Lalit and Justice DY Chandrachud, is an important step towards setting right the debate, placing emphasis on quantifiable data. It is also one of the first instances of a judgement using available empirical data to justify reservation. This judgment is also an eye-opener on the discourses around caste based reservation.

On Friday, May 10, the Supreme Court upheld a Karnataka state law granting reservations in promotions to state government employees belonging to the Scheduled Caste and Scheduled Tribe communities.

The judgment concerned a set of challenges against the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018, which facilitates a one-time promotion to SC/ST employees largely relying upon a “catch-up” clause. However, the judgment goes beyond merely commenting on the specific issue at hand and is likely to impact the attitudes and mind-sets in general, laying down a rationale as it does of principles of justiciable equity

A brief background and explainer on what has transpired so far
The Supreme Court’s Indra Sawhney vs Union of India (1992) has been hailed as a landmark judgment as it upheld reservations for Other Backward Classes (OBCs). However, this judgment also held that reservations in appointments, under per Article 16(4) of the constitution, don’t apply to promotions.

What does article Article 16(4) say? This Article lays down that nothing in the article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backwards class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

The Constitution (77^th Amendment) Act, 1995 was passed by parliament, inserting Article 16(4A) which allows the State to provide reservations to SCs/STs in matters of promotion, as long as the State believes that this category of the marginalised populations –the SCs and STs – aren’t  adequately represented.

Article 16(4B) provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year. Article 16(4B) ensures that the ceiling on the reservation quota – capped at 50% by Indra Sawhney – for these carried forward unfilled posts does not apply to subsequent years.

Article 335 says that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State

A five judge constitution bench of the Supreme Court delivered its judgment in M. Nagaraj vs Union of India (2006) in which it validated parliament’s decision to extend reservations for SCs and STs to include promotions albeit with three conditions. These were:

• It required the state to provide proof for the backwardness of the class benefitting from the reservation
• It required the state to provide proof for its inadequate representation in the position/ service for which reservation in promotion is to be granted
• It required the state to provide proof to show how reservations in promotions would further administrative efficiency

The judgment soon faced criticisms as it was highlighted that it failed to recognise the centuries of discrimination faced by SCs and STs as it required the state to “reassess” their backwardness. Critics expressed apprehensions that if some of them fail to qualify the criteria for backwardness, reservations for SCs and STs in promotions could be denied.

This, it was claimed, was inconsistent with the preceding judgment in Indira Sawhney case.

In 2018, a five judge bench in the case of Jarnail Singh vs Lachhmi Narain Gupta reviewed the criticisms made against Nagaraj judgment and held that its insistence on collection of quantifiable data on backwardness in relation to the SCs and STs was contrary to Indra Sawhney but it approved Nagaraj’s insistence on proof for inadequate representation of classes for whom promotional posts are reserved, and on submission of additional proof that efficiency wouldn’t be impacted by such reservation, because of Article 335.

It was in this situation and with this judicial history that a two judge bench of the Supreme Court, while presiding over B.K. Pavitra vs Union of India-I, declared a 2002 legislation passed by Karnataka assembly invalid on the grounds that Karnataka hadn’t collected quantifiable data on the three parameters as required in the Nagraj judgment.

The 2002 judgment provided for consequential seniority to roster-point promotes based on the length of service in a cadre.

The Ratna Prabha committee was formed by the Karnataka government after the decision of the Supreme Court in the B.K. Pavitra case. The committee was headed by the additional chief secretary Ratna Prabha and was entrusted with the responsibility of submitting a report on the backwardness and inadequacy of representation of SCs and STs in the state civil services and the impact of reservation on overall administrative efficiency in the state.

The Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Bill, 2017 was passed by the state assembly on the basis of Ratna Prabha Committee report.

Under Article 200 of the Indian constitution, the bill received president’s assent after it got mired in a controversy around whether a state legislature could or could not undo a Supreme Court’s judgment.

What happened on May 10, 2019 ?
In a judgment that is historic, in the B.K. Pavitra II matter, the Supreme Court (bench of Justices U.U. Lalit and D.Y. Chandrachud) held that the state legislature has remedied the underlying cause which had led to a invalidation of the 2002 Act. The bench made curative legislation constitutionally permissible, and clarified that it isn’t an encroachment on judicial power.

Since the legislature could not  simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires, it was important to remove the very basis of the SC’s former decision.

Commenting on the methodology by which the committee reached its findings, the bench said that the committee can’t be held to have acted arbitrarily in adopting recourse to sampling methodologies or to have based its conclusion on any irrelevant material. It said,
“We are unable to find that the Committee has based its conclusions on any extraneous or irrelevant material. In adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily. If, as we have held above, sampling is a valid methodology for collection of data, the necessary consequence is that the exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed. The data which was collected pertained to thirty one departments which are representative in character. The State has analysed the data which is both relevant and representative, before drawing its conclusions. As we have noted earlier, there are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data.”

Catch up rule
A significant part of the ruling is its observation on the catch-up clause. On 1 October 1995, a two judge Bench of the Supreme Court held in Union of India v Virpal Singh Chauhan  (―Virpal Singh‖) that the state could provide that even if a candidate belonging to the SC or ST is promoted earlier on the basis of reservation and on the application of the roster, this would entitle such a person to seniority over a senior belonging to the general category in the feeder cadre.However, a senior belonging to the general category who is promoted to a higher post subsequently would regain seniority over the reserved candidate who was promoted earlier. This rule came to be known as the catch-up rule.”

Comments on “Adequacy of Representation”
The bench said, “The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the State and the Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy.

Benchmark of Efficiency can’t be grounded in Exclusion!
Regarding ‘efficiency’ it said, “The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes.”

It added that if the benchmark for efficiency is grounded in “exclusion”, it will produce a “pattern of governance which is skewed against the marginalised.” It said that if the benchmark of “efficiency” is grounded in “equal access”, “our outcomes will reflect the commitment of the Constitution to produce a “just social order.”

Highlighting the grave dangers of not recognising the unequal footing on which marginalised groups, especially caste based groups are located, it said, “Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship.”

The judgment has significant and a long term bearing on the discourses on affirmative action as it smashes the misconstrued notion that reservations impact administrative efficiency. It draws attention to the fact that merit lies not only in performance but also in achieving goals such as promotion of equality, and not just a formal equality of opportunity but  the achievement of substantive equality.

It puts in perspective the historical injustices meted out to disadvantaged groups and the related socio-political reasons for reservations. The judgment also has a bearing for legislative intent. And policy makers need to heed the appeal that reservations and “efficiency” aren’t antithetical to each other.
 
 

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Bengaluru: The 10% reservation announced for economically weaker sections (EWS) by the Bharatiya Janata Party (BJP) government “may be usurped by the wealthiest”, while the minimum income guarantee announced by the Congress party could be “a game changer” provided it does not come at the cost of social spending, which is currently too low in India, a new report by The World Inequality Lab, a research organisation, says.

Economic inequality in India is at record high levels and the next government will have to seriously address this issue, “rather than just focusing on growth as it has been the case until now”,  Lucas Chancel, co-director of The World Inequality Lab, said in a statement. Since the 1980s, the top 0.1% of earners have captured a higher share of total growth than the entire bottom 50% of the Indian population (12% vs. 11%), while the top 1% have received a higher share of total growth than the middle 40% (29% vs. 23%) of the population, the report notes.

It compares the promises that the BJP and the Congress have made ahead of the 2019 general elections to help the poor.

Under the Congress party’s Nyuntam Aay Yojana (NYAY or minimum income scheme) announced on March 25, 2019, the poorest 20% of Indian families (which are estimated to number 50 million families or 250 million people) would given a cash transfer of up to Rs 6,000 a month to ensure they have a monthly income of Rs 12,000 (or Rs 72,000 a year).

The BJP government announced a 10% reservation for EWS in the general category in January 2019. Parliament approved the Constitution (124th Amendment) Bill to provide 10% reservation in government jobs and higher education institutions for economically weaker sections, as IndiaSpend reported on January 14, 2019.

Congress’s minimum income plan could work
“The minimum income proposed by the Congress could be a “game changer” but not if it entails curtailing social spending, Chancel said.
Using simple projections, a minimum income set at Rs 72,000 per year would cost about 1.3% of GDP and benefit the bottom 33% of households, the report says. If it were set at Rs 1 lakh a year, the scheme would benefit the bottom 48% of households and cost 2.6% of GDP.

“In either case, a minimum income would represent a substantial improvement in living standards for the poorest segments of society,” the report says.

Highlighting the need for “more transparency” on income and wealth data, the report emphasises that minimum income must be in addition to improvement in social spending on education and health.

Reservation for EWS “more as a political stunt”
The BJP’s 10% reservation criterion includes households with an annual income less than Rs 8 lakh, agricultural land less than 5 acres (size of three football fields), residential house area less than 1,000 sq.ft, and residential plot less than 900 sq.ft (notified municipal area) or less than 1,800 sq.ft (non-notified municipal area).

Source: Tackling Inequality In India Is The 2019 Election Campaign Up To The Challenge? ( World Inequality Lab: March, 2019)
Note: 93% of Indian households earn less than Rs 8 lakh a year. This is based on 2020 levels utilising the nominal growth rate.

Given the thresholds, the report notes that:
 

• 93% of households are eligible for reservation based on the income limit
• 96% of households are eligible going by the agricultural land threshold
• 80% of households are eligible under the residential house threshold
• 73% of the population is eligible in urban areas with the less than 900 sq.ft residential plot threshold
•  

“Targeting bottom 50% households via the income threshold alone can be achieved by setting threshold to around Rs 200,000 at all-India level,” it notes, adding that the present threshold “tends to favour wealthy sections of society”, such that the framework “appears more as a political stunt than a reform genuinely seeking social justice”.

To better target the bottom 50% based on agricultural land area, the threshold should be set at zero acres (or households with no agricultural land) at an all-India level. In rural areas, “the threshold should be combined with a residence in rural areas criterion and should be set at 0.4 acres.”

Based on the housing criteria, the bottom 50% could be targeted if the threshold is reduced by half and set at 500 sq.ft in rural areas and 200 sq.ft in urban areas.

The building area is a “poor proxy of building value and and hence a poor proxy for EWS status” because the small building area may not necessarily mean low building value, particularly in urban areas. The combined asset value (land + building) must be around Rs 7 lakh in order to target the poorest 50% of households while households above this value of wealth should be automatically excluded from reservation benefits.

The Rs 7 lakh figure is based on prices in 2017 and assumes the same increase in wealth across different wealth groups.

More social spending, progressive taxation
So far, the issue of social transfers has been largely neglected from the political campaign, the report notes, adding that it is imperative that Indian increase its spending on health and education.

Analysing income, wealth and tax data, the report makes a case for progressive financing of social measures through progressive taxes on income and wealth. This could address “extreme inequality at the top, while financing social spending for bottom and middle income groups”, it says.

“Under simple assumptions, we find that a 2% tax on total wealth on households owning more than Rs 2.5 crore of wealth (that is the top 0.1% of households), would yield Rs 2.3 trillion or 1.1% of GDP,” the report says, adding, “99.9% of households would not be concerned by such a tax.”

An alternative 2% tax on land and buildings above Rs 2 crore would yield Rs 2.6 trillion (1.2% of GDP), impacting only the top 1% of the households.

This could nearly offset the 1.3% of GDP expenditure that the Congress’s minimum income guarantee of Rs 72,000 a year would cost, as per the report’s estimates.

(Paliath is an analyst with IndiaSpend)

Courtesy: India Spend

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They also do not have in-depth knowledge of Constitutional provisions pertaining to them.  There have been, in some periods, a few exceptional law officers, who had some background of these aspects and who were painstaking enough to get further briefed.

A personnel policy should be laid down that at least some of the Law Officers at different levels of Attorney General (AG), Solicitor General (SG), Additional Solicitor Generals (ASGs) and Assistant SGs should be selected from among lawyers who have such substantive and in-depth knowledge and commitment to the legitimate cause and rights of the SCs, STs and SEdBCs, as evidenced by their long and consistent handling of cases in defence of the rights of these three deprived classes and in defence of legislative and executive measures taken to meet their legitimate rights and genuine needs.

It is the duty of the officers concerned to brief the law officers and be present in the court during proceedings to give information and instructions, as I used to do  in important cases pertaining to the SCs, STs and SEdBCs when I was in Service till 1990-end.  But for this there have to be, in the Ministries concerned, persons with deep knowledge and experience of socio-historical facts and issues pertaining to these deprived classes and commitment to the legitimate needs and Constitutional rights of these classes.

The personnel policy of the Government consistently selects officers with knowledge and expertise in areas like finance, economic policy, industrial development, infrastructure development, defence, external affairs etc for the respective Ministries.  In the case of the Ministries concerned with these deprived classes, there is no such approach.  The result is that, subject to exceptions, in certain brief periods, there is nobody in the official machinery capable of effectively briefing, guiding and instructing the law officers.

Nor do they try to fill this gap by tapping knowledge available outside the system. There have been exceptions like the initiative taken by the then HRD Minister the late Shri Arjun Singh and the then HRD Secretary the late Shri Sudip Banerjee, who sought my help, years after my retirement, as Advisor in defending the case of the Central Educational Institutions (Reservation in Admissions) Act case [Ashoka Kumar Thakur case]  in 2006 to 2008, which I agreed to on my condition that no remuneration shall be paid to me, and I thoroughly briefed the then AG, ASG and Special Counsel, and also lawyers for State Governments and organizations which were with the Central Government in this case, and orchestrated and symphonized the entire defence, and I was  personally present on every day of the proceedings in the court, furnishing on the spot information to the lawyers on matters raised by the Bench, resulting in the unanimous judgment in favour of the Government’s correct position and legislation and the related Constitution Amendment.

Further, there is a general tendency for officers to seek to find placement in economic and other “prestigious” Ministries and avoid Ministries dealing with the deprived classes and categories, who form the vast majority of the people of India.

The personnel policy needs to be made sensitive to carefully identify and provide to the Ministries dealing with SCs, STs and SEdBCs, officers with the right attitude to SCs, STs, SEdBCs and experience and competence in dealing with their issues.

There is also need to have a personnel policy of special incentives.  One instance is, no officer should be allowed to go into coveted Ministries unless he or she has spent not less than five years in the Ministries dealing with the three deprived classes.

As a result of the gaps above, cases involving the Constitutional rights and genuine needs of SCs, STs and SEdBCs too often go by default.  Sometimes, certain law officers have even made erroneous and harmful admissions. For example, one law officer made the erroneous and atrocious admission in the Supreme Court  that there is rampant misuse of the SC and ST (Prevention of Atrocities) Act.  In many other cases also, the correct and full facts do not get placed before the Supreme Court and High Courts.

There is no policy in the selection of judges for High Courts and Supreme Court to select some of the persons with this background and commitment.  For example, at present there is not a single judge of the SCs and STs in the Supreme Court.  The National Commission for Review of the Working of Constitution, set up in 2000 under the Chairmanship of the Chief Justice (Retd) M.N. Venkatachalaiah, by the Vajpayee Government, which submitted its Report in 2002 to the then Law Minister Shri Arun Jaitley, has pointed out the need for an advantage, for the judiciary itself, of having judges from SCs, STs and SEdBCs in the High Courts and Supreme Court.  But its recommendations are yet to be seriously considered.

The social imbalance on the Benches of the High Courts and Supreme Court has to be rectified by taking pains to identify district-level judges belonging to SC, STs and SEdBCs and lawyers belonging to these classes, who by their performance have shown in-depth understanding of the issues of SCs, STs and SEdBCs, along the lines of the recommendations of the Venkatachalaiah Commission, and as I have been writing to successive Law Ministers of successive Governments.

A long-term measure is to operationalize the 42nd Constitution Amendment of 1976 and create an All-India Judicial Service, in which there will automatically be reservation for SCs, STs and SEdBCs as for other All-India and Central Services, creating a large pool of SC, ST and SEdBC law officers from which future appointments of judges to the High Courts and Supreme Court can be made. I have been recommending this too to successive Law Ministers of successive Governments.

The present Law Minister has been expressing his intention to create such a Service. But he has expressed hesitation as the High Courts are not in agreement.  As there is a Constitutional provision, there is no need to secure the consent of the High Courts. When it is Constitutionally possible and still it is not done, citing one reason or the other, the seriousness and sincerity of expressions of intent will come under doubt.
The draft revised MOP must provide for selection of adequate proportion district-level judges and lawyers belonging to SCs, STs and SEdBCs, possessing the prescribed qualifications and the above qualities, to the High Court Benches and Supreme Court Bench.

One qualification prescribed for a lawyer to be considered is that of income.  High income is possible only for lawyers who deal with cases of persons accused of evasion of Income Taxes, Customs and Excise duties etc. Instead, one of the important qualifications should be that a lawyer for consideration of appointment to the High Court and Supreme Court Benches should have been actively, effectively and consistently taking up cases in defence of the rights of the deprived classes and categories. The experience and commitment of such lawyers will be valuable for the High Court and Supreme Court Benches, but they will not be able to fulfill the present income criteria.

The detailed suggestions made by me on these points and pending with the past and present Law Ministers needs to be seriously considered, accepted and implemented.

The office of the PM is extremely important in guiding governance at the national level. The office of successive PMs has had eminent civil servants and others with expertise in areas like industrial development, infrastructure development, defence, external affairs etc.  While these are important, there has been, most of the time, not a single officer in the PMO with in-depth knowledge and experience of the issues of the deprived classes and Constitutional provisions for them, and commitment to their legitimate needs and rights.

There have been rare exceptions like Shri K.R. Venugopal, who was Secretary to the PM during Shri V.P. Singh’s tenure and continued into Shri P.V. Narasimha Rao’s tenure.  This gap continues in the present PMO also.  As a result, important matters pertaining to these classes are not brought to the PM’s notice in the right perspective in time and with top urgency that they deserve, thereby enabling the PM to respond and intervene promptly without delay.

The Akhil Bharatiya Vanvasi Kalyan Ashram (ABVKA), in the meeting of its Kendriya Karyakari Mandal at Satna on February 24, has inter alia underlined the Government’s silence on the February 13 order of the Supreme Court, adversely affecting many lakhs of people of the STs, and deplored that even after two weeks of the Supreme Court order, no statement had come from the Government, because of which agony and panic is prevailing among the tribal community.  Such Governmental silence is on account of the above gap in the PMO and in the concerned Ministries.

After angry and agonized reactions from STs like the Dongria Kondhs and those working for the rights of the STs and interventions by me and a few other such persons with the Ministry of Tribal Affairs, that Ministry moved the Supreme Court on 27.02.2019 and secured from it an Order on 28.02.2019 staying its earlier Order of 13.02.2019 for eviction of lakhs of STs.  But in the meanwhile, much damage has been caused by creating doubts about whether the Government seriously tried to defend this case earlier and prevent the Order of 13.02.2019. The proceedings in the Supreme Court on 28.02.2019 and angry comments of the judges and the admission of the Solicitor General clearly bring out all the above gaps, namely,

(a) Government’s long “slumber”, in the words of the a h, all theses years
(b) Solicitor General’s admission of neglect
(c)  Non-availability of knowledge about the conditions and plight of STs, especially in Scheduled Areas, in the Bench itself, prior to 28.02.2019
(d)  Absence of necessary knowledge, background and commitment on the part of the governance and administrative system in Ministries dealing with the deprived classes and in the PMO.

The PMO, which is the nerve-centre of  national governance, needs carefully selected Principal Secretary and/or Secretary-level officers with in-depth knowledge and experience of the above three deprived classes of our people, and proven commitment to their legitimate needs and rights, who should keep watch over all matters of significance to them, maintain close contact with the concerned Ministries and ensure that nothing negative is allowed to happen and positive measures required are taken [e.g., proper and speedy implementation of Forest Rights Act, SC and ST (Prevention of Atrocities Act) – the implementation of these and other such Acts is at present casual and lackadaisical], and bring to the PM’s notice in time important developments requiring PM’s intervention.

Such persons are available. It is for the Prime Minister and Ministers to look for such persons, identify them and bring them on board.  If such persons are there, it will become possible for the PM to intervene in time and effectively as the PM has done in the aftermath of Pulwama.
—
*Former secretary, Ministry of Welfare, Government of India

This article is based on the author’s analysis of serious gaps in governance and administrative system in respect of issues and Court Cases pertaining to SCs, STs and SEDBCs and Suggested Remedial Measures

Courtesy: Counter View
 

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On 23rd February, under the Muslim Arakshan Morcha, thousands of Muslims from different districts gathered in Patna to participate in the rally demanding 5%  reservations in education and employment. They claimed that Muslims constitute 18% of the total population in Bihar and are entitled to reservations for their development.

 

Courtesy: Two Circle

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