India came face to face with this inherent trait of RSS when it’s Supremo Mohan Bhagwat in a speech at Hyderabd (April 28, 2024) while reacting to a video (in which a RSS luminary called upon to finish off constitutional Reservation) stated

“Ye galat baat hai, asatya hai (This is wrong, false)…“The Sangh has been supporting all reservation as per the Constitution since the beginning. And, the Sangh says that it should continue as long as those for whom it exists feel that it is necessary…It (reservation policy) should continue as long as discrimination exists in society.”

[‘Lok Sabha elections: RSS joins BJP quota firefight as unease grows’, The Telegraph on Line, Kolkata, April 28, 2024.]

When the founding fathers of the Constitution of independent India made provisions for reservations to Scheduled Tribes and Scheduled Castes, the most prominent ideologue of RSS and 2^nd Supremo of the organization, MS Golwalkar strongly reacted by alleging that the rulers “were digging at the roots of Hindu social cohesion and destroying the spirit of identity that had kept all the various sects in a harmonious whole in the past”.

[Cited in N. L. Gupta, RSS and Democracy (Delhi: Sampradayikta Virodhi Committee, nd., p. 17] He refused to admit that Hindu social system was at the root of the neglect of the lower castes. [Golwalkar, MS., Bunch of Thoughts, selection of writings/speeches/interviews, Sahitya Sindhu Prakashana, Bangalore, 1996 [3^rd edition], p.363.]

When Golwalkar was asked: “What about the protection to Harijans guaranteed in the Constitution and its subsequent extension?” His reply was:

“Dr. Ambedkar had envisaged the special privileges for ‘Scheduled Castes’ for only 10 years from the day we became a Republic in 1950. But it is going on, being extended. Continued special privileges on the basis of caste only, is bound to create vested interests in them in remaining as a separate entity. That would harm their integration with the rest of the society [Hindu society]. [Golwalkar, MS., Spotlights, Sahitya Sindhu, Bangalore, 1974, p. 16.]

For Golwalkar, the real issue was not how to undo the injustice done to the depressed castes [Sudras/Dalits] for thousands of years in the past but “take extra care to see that their separateness is not given fillip.”

[Golwalkar, MS., Spotlights, Sahitya Sindhu, Bangalore, 1974, p. 184] He never accepted the fact that lower Castes were being maltreated in India. While reacting to a big carnage of Dalits in a part of India he wrote on October 14, 1972:

“There is a trend these days to give Harijan-non-Harijan colour even to ordinary happenings, probably out of political motivation and digging a rift in the oneness and solidarity of the people. For immediate benefits-even these doubtful-to sacrifice the lasting good of the people as a whole that is the unfortunate aspect of the trends obtaining now a days. In our work, we have to steer clear of this poisonous trend and do our best to clarify the atmosphere.” [Golwalkar, MS., Shri Guruji Sanmgr Darshan, (selection of his writings/speeches in Hindi), vol. 7, Bhartiya Vichar Sadhna, Nagpur, 1974, p. 244.]

Golwalkar’s hatred for Dalits was outcome of his firm belief in Casteism under which they did not enjoy even right to life. For him Casteism was synonymous with the Hindu nation. According to him, the Hindu people are none else but,

“[The] Virat Purusha, the Almighty manifesting himself…According to purusha sukta sun and moon are his eyes, the stars and the skies are created from his nabhi [navel] and Brahmin is the head, Kshatriya the hands, Vaishya the thighs and Shudra the feet. This means that the people who have this fourfold arrangement, i.e., the Hindu People, is [sic] our God. This supreme vision of Godhead is the very core of our concept of ‘nation’ and has permeated our thinking and given rise to various unique concepts of our cultural heritage. [Italics as in the original]

[Golwalkar, MS., Bunch of Thoughts, pp. 36-37.]

This was nothing but a re-phrasing of Manu’s inhuman anti-Sudra codes. Golwalkar refused to accept that Casteism was a bane to Hinduism or hindered the feeling of unity among Hindus.

“Persons interested in calumniating Hindus make much of the caste system, the ‘superstitions’, the want of literacy, the position of women in the social structure, and all sorts of true or untrue flaws in the Hindu Cultural Organization, and point out that the weakness of the Hindus lies solely in these.”

[Golwalkar, Bunch of Thoughts, pp. 61– 62.]

Ambedkar, who witnessed RSS growing and was familiar with its destructive tendencies, was of the firm opinion that the ideology of Hindutva practised by RSS was nothing but a ploy by privileged caste Hindus to maintain control over society and its resources. He wrote:

“They have a trait of character which often leads the Hindus to disaster. This trait is formed by their acquisitive instinct and aversion to share with others the good things of life. They have a monopoly of education and wealth, and with wealth and education they have captured the State. To keep this monopoly to themselves has been the ambition and goal of their life. Charged with this selfish idea of class domination, they take every move to exclude the lower classes of Hindus from wealth, education and power…This attitude of keeping education, wealth and power as a close preserve for themselves and refusing to share it, which the high Caste Hindus have developed in their relation with the lower classes of Hindus, is sought to be extended by them to the Muslims. They want to exclude the Muslims from place and power, as they have done to the lower class Hindus. This trait of the high Caste Hindus is the key to the understanding of their politics.”

[Ambedkar, BR., Pakistan or the Partition of India, Government of Maharashtra, Bombay, 1990 (reprint of 1946 edition), p. 123.]

How brazenly the RSS has been opposing Reservation was made clear in 1981 when its cadres played most nefarious role in opposing Reservation to  socially and economically backward Castes in Gujarat introduced by Congress ministry headed by Madhavsinh Solanki. More than 100 people were killed including 2 police officials. It is interesting to note that like today the debate of Reservation was turned in spreading poison against local Muslims who were killed with impunity.

Related:

RSS & BJP have already caused enough damage: In conversation with path-breaking novelist Devanur Mahadevan

The post RSS deceit on constitutional reservation and Dalits in general appeared first on SabrangIndia.

On 14 April, numerous organisations celebrated the first law minister and Constitution-writer Dr Bhimrao Ambedkar’s 132nd birth anniversary. The celebrations this year perhaps surpassed those held in previous years, for Ambedkar’s contributions to uplift India’s Scheduled Caste, Scheduled Tribe, and other disadvantaged communities are increasingly being recognised nationally and abroad. This year, his birth anniversary was celebrated in over 150 countries. Most groups committed to social justice and equality, which oppose birth-based hierarchies and injustices, mark this day with reverence and hope. Often, this celebration takes on a quasi-religious overtone, as rituals are accorded more space than Ambedkar’s values. In this context, the struggle to fulfil the dreams he fought all his life for must be re-launched and sustained.

Other formations, such as the Rashtriya Swayamsevak Sangh (RSS) and its Hindu nationalist progeny, deeply oppose the annihilation of caste and the principles Ambedkar stood for. Instead, they project the notion of harmony among castes, which does not involve altering the hierarchy inherent in caste. Ambedkar espoused affirmative action for the deprived sections of society. Reservations were initially meant to last for ten years—perhaps Ambedkar and others hoped a decade would be sufficient to root out the malice of caste from Hindu society. However, implementing the reservation policy itself lies in the hands of members of elite castes, and they found ways to circumvent it. That is why discrimination and exclusion based on caste have continued, and ending it remains a prerequisite to the march toward social justice.

The Constitution of India—Ambedkar chaired the committee that drafted it—provided reservations for the Scheduled Castes and Tribes. However, backward classes, a significant constituent of society, did not get recognition or reservations. The Other Backward Classes (OBC) were not a legal category until the Mandal Commission report was implemented in the 1990s.

Further, the last decadal census that considered the caste composition of India was released in 1931. At the time, the proportion of backward classes was 52%, which the Mandal report relied on. It became the basis for ensuring 27% of reservations in the 1990s to the backward classes. These classes were identified based on social and educational backwardness, thus beginning India’s post-independence journey in affirmative action.

But reservations, for any social group, have always been an eyesore to a large section of Indian society. Groups such as “Youth for Equality”, which stood for the abolition of reservations, spread the idea that reservations have allowed undeserving people to find jobs at the cost of “deserving” ones. The social biases around Dalits and OBCs recently culminated in the deaths by suicide of Rohith Vemula and Darshan Solanki. This bias also formed the base of anti-Dalit violence in the 1980s in Ahmedabad and anti-backwards violence in Gujarat in 1985.

In the meantime, the BJP, using its Hindutva plank, floated organisations like the Samajik Samrasta Manch or Social Harmony Forum to reach the most marginalised sections of society. At an ideological level, the Hindu right-wing has made efforts to attribute the ills of the caste system to the “invading” Muslim rulers—the crux of Hindutva. This effort has paid it rich electoral dividends but did not improve the conditions for the poorest and most marginalised sections. One outcome was that the BJP has been able to score many victories for its leaders from constituencies reserved for the Scheduled Castes and Scheduled Tribes.

The pracharaks and swayamsevaks of the RSS have pursued what is widely known as social engineering in tribal regions, encouraging Sanskritisation without rights and charitable works without demanding the State recognise the rights of the people who live in these backward and remote regions.

It is no surprise that the BJP and its associates also celebrate Ambedkar anniversary with gusto. Yet they undermine the need for a caste census which can pave the way to modify policies which would benefit the marginalised sections in a real sense.

This background makes Congress leader Rahul Gandhi’s recent speech in Kolar, Karnataka, significant. He has asked for a population census and said the results of affirmative action are not visible in the top bureaucracy in the Union government, as hardly 7% belong to the most marginalised or backward sections. He said the findings of the 2011 caste census, conducted when his party shared power with other constituents of the United Progressive Alliance, must be made public. He said, “The data will provide evidence if OBCs, Dalits, and Adivasis don’t have enough representation in the country’s politics proportionate to their population.” Share in power and representation proportionately to their share in the population is a long-standing slogan and demand from India’s disadvantaged communities.

In contrast, the BJP is trying to dodge the issue. The party did not want a caste census and pleaded in the Supreme Court in 2021 that such a census would be “administratively difficult and cumbersome”. It said it was a “conscious policy decision to exclude such information from the census purview”. Its position has not changed. The real intent of the BJP vis-a-vis social justice becomes apparent when it makes crucial decisions.

During the last nine years, it introduced reservations for the Economically Weaker Section or EWS, a category that dilutes provisions for the non-elite castes and social groups. It is widely understood that the EWS category will help the better-off members of elite caste groups whose income is below a generous Rs 8 lakh a year cut-off. The BJP wants to obfuscate the fact that economic status was never a criterion to provide or deny reservations. Reservations in India are based on historical discrimination (for the Scheduled Castes), geographical remoteness (for the Scheduled Castes), and social and educational backwardness (for the OBCs). But the BJP wants to nullify caste as a category for people wishing to improve their societal position.

Its constructed biases are why the BJP faces the charge that Ambedkar’s principles don’t matter to it. Hindu-nationalist politics could spread widely precisely because it opposed the growing assertion of the Scheduled Castes, Scheduled Tribes, and backward sections. Its foundational ideological pronouncements glorified holy tomes and traditions that boost traditional caste and gender hierarchies. A genuine assessment of the population of different marginalised sections is needed to modify our policies and bring society’s uneven and unequal growth on the path of equality.

Numerous and relentless deaths of students from non-elite castes studying in top educational institutions and allegations that caste-based discrimination led to these deaths should awaken us to combat caste-based discrimination. India must strive for a future where the annihilation of caste is the central credo of society.

The author is a human rights activist and taught at IIT Bombay. The views are personal.

Courtesy: Newsclick

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Over a month after the Telangana Assembly passed a resolution on including the Boya or the Valmiki community in the Scheduled Tribes (ST) list, the Andhra Pradesh government last week pushed through a similar resolution in the Assembly.

However Andhra Pradesh went further. The Andhra Stage Assembly on Friday, March 24 also passed a resolution urging that the Union Government include Dalit Christians in the Scheduled Castes (SC) list, with Chief Minister Y S Jagan Mohan Reddy saying that the social and economic status of people doesn’t change automatically just because they convert to another religion. The issue of granting SC status to Dalit Christians was discussed during the tenure of Jagan’s father Dr Y S Rajashekar Reddy. This is a long standing demand of the Dalit Christian community with the matter being challenged in the Supreme Court.

Earlier, the Congress government of undivided Andhra Pradesh had also urged the Centre to accept the recommendation. Though both the YSR Congress Party of the CM and the Telugu Desam Party (TDP) jostled for their votes, in the last elections in May 2019 they shifted they backed the ruling party.

Currently, a committee headed by former Chief Justice of India K G Balakrishnan is examining the issue of quotas for Dalit Muslims and Christians. The ideological fountainhead of the ruling Bharatiya Janata Party (BJP) at the Centre, the Rashtriya Swayamsevak Sangh (RSS), however, has said recently that the current reservation system should not be tinkered with and quota should not be extended to Muslim and Christian Dalits since their religions claim to be egalitarian.

Meanwhile, after the Assembly passed the resolution on including Valmikis in the ST category, Reddy quickly reassured other tribal groups that the inclusion of the Boyas would not affect the existing quotas. In Andhra Pradesh, STs enjoy six per cent reservation. The CM said the resolution was introduced to fulfil a promise he had made to the community during a padayatra he undertook before coming to power in May 2019.

The CM allayed fears that including Valmiki community people from Kurnool, Kadapa, Anantapur, and Chittoor districts in the list would reduce the quota of STs of the tribal agency areas as a zoning system is in force according to the six-point formula that was agreed between leaders of undivided Andhra on September 21, 1973. The formula was aimed at a uniform approach for “accelerated development of the backward areas” of Andhra Pradesh and to provide “equitable opportunities” in education and government jobs in different areas of the state.

This inclusion of Boyas or Valmikis may only have a negligible impact on Group 1 jobs that come under the non-zoning category. It becomes negligible as only 386 Group 1 jobs have been notified in the last 10 years and the six per cent reservation only amounts to 21 or 22 posts.

The one-man Commission of retired IAS officer Samuel Anand Kumar who studied the social and economic conditions of the Boyas in the four districts and the ST Commission also agreed with this assessment, said the Chief Minister. State government jobs in the zoning system and districts constitute 99 per of the total jobs and the STs of the tribal agency areas would suffer no job loss because of the proposed inclusion of the group.

“The biggest fear of STs is a loss of jobs when other communities are added to the group. The zoning system may offset the inclusion of Boyas/Valmikis in the ST list, it remains to be seen what will happen in other sectors where there is no zoning system,” said ST leader V Ranga Rao.

The Boyas traditionally supported the Congress but as the grand old party’s electoral footprint shrank after the state’s bifurcation in 2014, they shifted to the YSRCP, backing it to the hilt in 2019. The TDP government had also proposed to include Boyas in the ST list. After losing power in 2019, when the demand for inclusion in the ST list was again raised by the community, TDP chief N Chandrababu Naidu wrote to Prime Minister Narendra Modi on the matter, saying the community needs help, and requested the Centre to introduce a Bill in Parliament.

“The TDP tried to create divisions by proposing the resolution but not implementing it. We have passed the resolution and will implement it. Boya community is now fully with YSRCP,’’ said Tribal Welfare Minister P Rajanna Dora.

Consequently, on February 10 this year, the Telangana government passed a resolution in Assembly recommending to the Centre to include Valmiki Boyas in the ST list along with other caste groups such as the Pedda Boyas, Khaiti Lambadas, Mali Saha Bedars, Kiratakas, Nishadis, Bhat Mathuralus, Chamar Mathuras, Chunduwals, and Thalayaris.

CM K Chandrashekar Rao, who introduced the resolution, said the state government had accepted the recommendation of a Commission of Inquiry for Scheduled Tribes in 2016 for the inclusion of the Valmiki Boyas, Kirataka, and other groups and submitted the same to the Centre.

Since no response had been received from the Union government, the Assembly unanimously resolved to recommend to the Centre to include the communities in the ST list, said the CM, reading out the resolution. Besides, he also proposed that the Mali community living in the districts of Adilabad, Komram Bheem Asifabad and Mancherial be included in the ST list, given their socio-economic conditions.

A comprehensive report on this has been filed in The Indian Express.

Related:

Why Should Dalit Christians not get Reservations as Scheduled Castes, Notice to Centre: SC

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On February 7, 2023, the Social Justice Ministry of the Union of India, informed the Lok Sabha that the government is not considering any proposal to bring in reservations for transgender persons in education or employment. Multiple MPs, mostly from Maharashtra, had asked the Ministry of Social Justice and Empowerment asked to provide details regarding the number of people from the transgender community that are employed in Government and private jobs. In response to this, Minister of State for Social Justice A. Narayanaswamy said that the Ministry had no information even on the number of transgender people that are employed in the government and private sector, adding that so far, just 10,635 people had registered on the national portal.

On the inquiry regarding whether the ministry is planning to provide reservations to transgender persons, and the policy that in place to deal with discrimination against them, the minister said  that a law is already in place which prohibits discrimination against transgender persons and that there is no proposal to pro-actively introduce reservation in jobs and education for trans people. 

The Ministry’s statement comes even as the Delhi High Court has admitted a petition seeking reservation for transgender people in jobs and education and issued a notice to the Union government on it.

The complete answer can be read here:

Courts & Reservation and Employment for Transgenders

Delhi High Court:

In January 2023, a petition filed sought notification of special vacancies for transgender people in public posts. The Delhi High Court demanded a response by the Union Government. A bench of Justice Prathiba M Singh even impleaded the Ministry of Home Affairs as a party to a transgender person’s plea and permitted six weeks to submit a reply.

It was argued in court that merely mentioning and adding ‘transgender’ as a separate gender in the application form would not be sufficient compliance with the Transgender Persons (Protection of Rights) Act, 2019, since the individuals belonging to the transgender community would be “forced to apply in a vacancy, which is either for male or female candidates or for vacancies where no gender is mentioned.” (Para 7)  The petitioner’s grievance was that the vacancies advertised by the Delhi Subordinate Service Selection Board (DSSSB) on January 2, 2020 had mentioned the requirement of male or female genders. In respect of some posts, no identification of gender was mentioned.

The petitioner had filed for DSSSB recruitment and had been looking for work in government schools since 2019. Aside from requesting the implementation of the requirements of the Transgender Persons (Protection of Rights) Act, 2019 and its Rules, the plea also urges the formulation of a policy for the recruitment of transgender people in all public positions.

The petitioner’s counsel relied on the Supreme Court’s ruling in NALSA v. Union of India, which acknowledged the rights of a transgender person. “Both the Centre and State are mandated to recognise my identity and act accordingly,” the counsel, representing the petitioner, submitted before the court during the hearing on January 20, while contending that the Delhi Government cannot have “gender segregation,” as has been provided by LiveLaw.

In response, the DSSB argued that all three genders, male, female, and transgender, can now apply for jobs on its web site. However, the petitioner’s counsel contended that this would not be sufficient conformity with the law. The counsel further stated that the Delhi Government’s Department of Social Welfare has proposed granting transgender people a 5-year age relaxation and a 5% qualifying mark. The letter, dated February 8, 2021, addressed to the Additional Chief Secretary, was placed on record.

Counsel for the Delhi Government further stated that its Department of Social Welfare has written to the Under Secretary (UT) and Joint Secretary (UT) of the Ministry of Home Affairs with reference to the implementation of the 2019 law on March 2, 2022 and December 2, 2021, respectively.

After reviewing the communications, Justice Singh stated that a notification in the central gazette has been sought to authorize the Administrator or Delhi Lieutenant Governor to design State Rules in accordance with the Transgender Act, in terms with the Article 239(1) of the Indian Constitution.

“Considering these communications, which are on record, it is deemed appropriate to implead the Union of India, Ministry of Home Affairs through Under Secretary (UT), Government of India as the Respondent No.5 in the present case” (Para 11)

The court also ordered the LG and the Delhi Government’s Directorate of Education to record their stance on the Department of Social Welfare communications. The court stated that the petitioner may file applications for the vacancies created by this judgment, which will be evaluated and processed on March 28, 2023.

The order can be read here:

Kerala High Court

In January 2023, transgender people were allowed to apply for the positions of house keeper (Female) in the Homeopathic Medical College department and sub inspector of police (Trainee) in the Armed Police Battalion by the Kerala Administrative Tribunal in Thiruvananthapuram. The bench, which included Judicial Member Justice P.V. Asha and Administrative Member Rajesh Dewan, allowed the applicants to submit their applications and stated that the Kerala Public Services Commission should “process the application purely on a provisional basis, subject to further orders” in both cases.

The Commission had previously issued a notification soliciting applications for the position of House Keeper (Female) under the Homeopathic Medical College department. A transgender woman named Aneera Kabeer C. told the tribunal that the notification allowed only female candidates to apply for the position, and the applicant was declared to be disqualified on the PSC’s official website owing to her gender identity.

The petitioner claimed that the notification is thus unfair and discriminatory based on gender, which is disallowed by Articles 15 and 16 of the Constitution.The counsels for the applicants submitted that the arbitrary exclusion of transgender women from the ambit of the post is violative of the Transgender Persons (Protection of Rights) Act, 2019; the Transgender Persons (Protection of Rules), 2020; various apex court judgments and State Policy for Transgender in Kerala, 2015.

Case- AneeraKabeer C. v. State of Kerala &Ors.

In a similar application submitted by Arjun Geetha, permission was sought to submit application for the post of Sub Inspector of Police (Trainee) in Armed Police Battalion. A further directive had been requested to guarantee that the transgender category is included as a separate category, and that separate notifications for transgenders for postings in other categories are sent in subsequent notifications.

Case- Arjun Geetha v. State of Kerala &Ors.

Bombay High Court

In December 2022, the Maharashtra government informed the Bombay High Court that, in addition to men and women, third gender options will be included in online applications for police constable recruitment by the end of December 13, 2022. It also informed the court that it would develop guidelines for transgender candidates within three months.

The court ordered the state to draft guidelines in accordance with the Central Government’s Transgender Persons (Protection of Rights) Rules, 2020, and to complete physical exams for all candidates other than transgender candidates within two and a half months, or by February 28, 2023.The physical examination of candidates belonging to the transgender community will then take place, according to the court. The state shall not proceed with the written examinations for all candidates until the rules are drafted and the physical tests are conducted, the court noted in its judgment.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja was hearing the state’s appeal against the Maharashtra Administrative Tribunal’s (MAT) directive to include transgender people in all Home Department employment.

While handling with applications from two transgender people aspiring to be police constables, MAT had also asked the state to establish physical norms and exams for transgender candidates.

The order can be read here:

Conclusion

Even while courts are taking cognisance of petitions filed by the transgender community, demanding equal opportunity and acknowledgement of the existence of more genders than the two binaries, the government is yet to take any pro-active steps in that direction. While the government dismisses any accountability on this issue by showcasing the mere existence, on the statute books, of the Transgender Persons (Protection of Rights) Bill 2016 discrimination is prohibited against a transgender person, including unfair treatment or denial of service in relation to employment, education, healthcare, access to public goods and facilities, etc. This stance fails to recognise and consider the systematic oppression and otherisation that is faced by a transgender person that needs active policy level interventions.

The government needs to take calculated actions to ensure opportunities for the transgender population, such as extending the reserve afforded to women under Article 15(3) to transgender and intersex people as special reservations and horizontal reservations. Since the Court ruled in NALSA that ‘sex,’ a protected feature under Articles 15 and 16 of the Constitution, includes ‘gender identity,’ sex-based protections should be extended to transgender and intersex people. The government should also evaluate how caste, gender, economic situations, and religion intersect and formulate special category of reservations for the community.

Related:

Delhi HC Approached for Separate Public Job Vacancies for Transgender Persons

How diverse and inclusive is the Indian judiciary?

Independent Views, Gender Orientation must not affect candidacy for judgeship: SC

SC Collegium recommends elevation of first openly gay judge to Delhi HC

Madras HC bats for LGBTQIA+ again, issues more directions to police, media

M’traGovt moves HC against MAT Order directing inclusion of Transgenders in police recruitment

Supreme Court directs Centre to frame policy on jobs for transgender persons

Transgender Activists Say UP Cop Beat Them up for Sheltering Trans Son in Gurugram

Madras HC expresses “dismay and anguish” as NCERT removes report on gender non-conforming, transgender children

The post No proposal for affirmative action in education or employment for transgenders: Govt appeared first on SabrangIndia.

On October 20, 2020 the Orissa High Court observed that the arbitrary nature of Non-Resident Indian Sponsored (NRIS) quota in National Law Universities defied logic, questioned the eligibility criteria and selection of students under such quota category(ies) and also stated that the process is both vague and based on inconsistent parameters. Furthermore, the practice benefits only those students who can afford to pay more money to secure admissions.

Passing this order in Ishika Patnaik vs National Law University of Odisha and Ors. WP (C) No. 28230 of 2020, the Court has made these observations.  The Bench of Justices S. Panda and S.K Panigrahi directed the Consortium of NLUs, the Bar Council of India and all the stake holders involved in the process to revisit the so-called NRIS quota and prepare a proper regulation and system while implementing this quota. It also asked the relevant stake holders especially the Bar Council of India, which is mandated to regulate the legal education in this country to ensure that a uniform and well-defined parameter is adopted so that the meritorious candidates do not suffer. Mr. B. Routray, appeared for the petitioner and Mr. Prafulla Ku. Rath, represented the National Law University of Odisha and others.

The Division Bench said that this quota is an “affront to the meritorious candidates who toiled day night to secure seats through CLAT. The candidates belonging to the category of NRI/NRIS, who are very low ranked in the merit list often get seats in the NLUs whereas the general candidates having secured better marks also lag behind the NRIS students and get disappointed.”

“This is like the reservation for the elite class and this dubious category of quota is unconstitutional. The eligibility and selection under this category are unregulated, illegal and arbitrary”, the Bench noted. They also referred to an Apex Court ruling in P.A Inamdar and Ors. vs State of Maharashtra and ors (2005) 6 SCC 537, where the 5-judge bench noticed that the term NRI in terms of admissions is a ‘misnomer’ and that “neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission.”

The Division Bench also suggested that several studies revealed the selection process under this NRIS quota to be “vague, undefined and based on inconsistent parameters.” Considering all these factors the Orissa High Court dismissed the Writ Petition recognizing the need to settle this issue of NRI quota within the shortest time “to assuage the pains of the unselected due to poor marks.”

Background

The Bench was hearing a Writ Petition where the petitioner had challenged the inaction of National Law University, Odisha in not considering her application for admission into the 5-year BBALLB (Hons.) Course under the NRIS category for the academic year commencing 2020. The grievance of the petitioner was that she applied for the entrance examination CLAT (Common Law Admission Test) 2020 conducted by National Law Universities. The petitioner wanted to apply under the NRI Sponsored quota category and accordingly applied through an online form. She submitted through her counsel that due to Covid19 outbreak at the residence, she was unable to click/select the option for “NRI/NRIS Category” and selected the “General Category” option instead. The petitioner logged on to the website on August 15, 2020 to make alterations but the portal took a long time to open and she failed to upload and confirm the changes.

The petitioner then sent a mail to the Vice-Chancellor of National Law University, Odisha and Consortium of NLU on August 17 indicating that due to some technical glitch, she was not able to tick under NRI/NRIs category. “There is always possibility of server down, internet glitch etc. and therefore, it has been advised by the CLAT conducting authority that candidates must apply well before the last date and the petitioner’s name because there tend to be heavy rush on the use of internet on the last date”, recorded the bench.

The Division Bench ruled that the entire process of selecting students based on merit and uploading it on the university website was done in a transparent manner and that “changing the category, at this juncture when the admissions are over, would disturb the entire process and jeopardize the interest of so many students.” Since all the deadline and schedules of counselling were prepared following the direction of the Supreme Court to finish the admission process by August 15, 2020, the Hon’ble Orissa High court said that all NRI/NRIS category seats have been filled and could not entertain the petition further. The observations on the Quota itself could not open a can of worms for the process of admission to Law Universities across India.

The order can be read here:

Related:

https://sabrangindia.in/article/why-do-some-indians-both-oppose-reservation-and-burn-constitution

https://sabrangindia.in/article/obcs-and-their-due-reservations-medical-courses

http://sabrangindia.in/article/no-reservation-promotions-without-adequate-representation-sc

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A review petition has been filed before the Supreme Court pleading that the court’s decision to quash Andhra Pradesh government’s order granting 100% reservation for Scheduled Tribe teachers in a scheduled area, be reviewed. The petition states that the judgement is liable to be reviewed since there are errors which are apparent on the face of the record. The petitioners state that the judgment reflects the ‘Manuwadi’ mindset of the so called upper castes towards the socially disadvantaged, that they must be kept suppressed.

The petitioners are social organisations representing the interests of Scheduled Tribes. These include Akhil Bharatiya Jan Jati Vikas Sangh, All India Federation of SC/ST Organizations and Baba Sahab Dr. Bhim Rao Ambedkar Vidya Peeth, as well as two other individuals, Mukul Choudhary who is a social activist working for protection of rights of weaker sections and Harnam Singh who is former chairman of the Delhi Commission for Safai Karamcharis.

The impugned judgment

The review petition, filed under Article 137 of the Indian Constitution, seeks review of the apex court judgment passed on April 22, 2020 by a 5-judge Constitution Bench headed by Justice Arun Mishra which had quashed a government order passed by erstwhile state government in 2000 which provided 100% reservation to the Scheduled Tribe candidates for the post of teachers in the schools in the scheduled areas. In the impugned judgment, the court had followed the dictum laid down in Indira Sawhney vs. Union of India as per which reservations would be constitutionally valid only as long as they do not go beyond 50%.

The judgment, inter alia, held, “By providing 100% reservation to the scheduled tribes has deprived the scheduled castes and other backward classes also of their due representation…it also impinges upon the right of open category and scheduled tribes who have settled in the area after 26th January 1950. The total percentage of reservation provided for scheduled tribes in the state is 6%. By providing 100 percent reservation in the scheduled area, the rights of the tribals, who are not residents of the scheduled areas, shall also be adversely affected.”

The review petition

The petitioners have raised a concern that the apex court’s judgment will throttle the ability of state governments to formulate beneficial policies for Tribal Communities in their seclusion in fit cases where forced integration may pose a risk to their identity and survival. They further state that the general rights of tribal communities in India will be compromised if the state cannot provide adequate reservation in appropriate cases, something likely to occur as a result of the judgment.

The petitioners state that the government notification was a step towards increasing literacy in Scheduled Areas and aimed at ensuring the availability of teachers in such Scheduled Areas. Thus, the Notification was based on intelligible differentia and the classification had a nexus with the object sought to be achieved. They further state that “The Non-obstante Clause in Schedule V makes every action taken under the said Schedule, immune from challenge under Articles 14 and 16 of the Constitution”.

“The Hon’ble Court has shown complete apathy and lack of concern for the well-being of the Scheduled Tribes in the Scheduled Area,” says the petition. The petition, filed by KV  Bharathi Upadhyaya and settled by Mehmood Pracha, also points out that the Central Government’s decision to add another 10% quota for the EWS to the existing 50% quota is also pending before the court and it should have been tagged along with the petitions in which this impugned judgment was given.

The petitioners contend that “the concept of creamy layer within the Scheduled Tribes/Castes, has been mischievously introduced by certain elements in Society who have a vested interest in depriving the Scheduled castes/tribes of the benefit of Reservation and also cause ill will and infighting amongst Schedule Castes/Tribes.”

Justifying the need for 100% reservation in scheduled areas, the petition states, “Seats from reserved quota that have not been filled, have not been carried forward, thereby continuing with the oppression of the oppressed over 70 years of independence. Thus, it would be just and equitable that a 100% reservation in proportion to the percentage in population across the board for a minimum period of 25 years is immediately directed to undo the wrong that has been meted out to the oppressed for centuries”.

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The National Commission for Backward Classes (NCBC) has issued a notice to the Health Ministry for not implementing the 27% reservation, since the 2017 National Eligibility cum Entrance Test (NEET), in all India quota seats which are pooled from state colleges. Instead these seats were being transferred to general category which has cost the OBCs around 10,000 seats in the last 3 years.

The notice was issued with regards to a complaint filed by All India Federation of OBC Employees Welfare Association which the NCBC said, “appeared prima facie genuine”. As per the complaint, the government has argued that the 27% reservation is applicable only for central institution seats and not the state colleges as per the Central Educational Institutions Reservations Act. The complaint however, contends that if the seats pooled from state colleges for ‘all-India quota’ had remained in the state quota, the OBCs would have availed of the reservation. The complaint explains this by giving an instance, “In 2020, Tamil Nadu has 1,758 seats under PG courses. Out of this, 879 seats are pooled for all-India quota in which OBCs are not getting any reservation. Had the seats remained in TN, 440 seats would have gone to OBC students.”

Reportedly, out of 9,550 seats under all India quota for 2020, nearly 8,880 seats were pooled from state colleges.

The representation is in the following chart:

NEET is the single window national examination for admission to graduate and post graduate courses in medicine and dental sciences. Under it, 85% seats (state quota) are reserved for state domicile candidates for seats in those states. The remaining 15% seats are pooled from state and central institutions and are open to candidates from across states.

Matter in Supreme Court

Former Union Health Minister and Member of Parliament, Dr. Anbumani Ramadoss, on May 28, moved the Supreme Court seeking implementation of the 27% OBC reservation in medical seats.  

The Mandal Commission, in 1980, had concluded that 52% of the population comprised OBCs and recommended 27% reservation for OBC in government jobs and public universities. Accordingly, the central government, in 1990 declared that 27% reservations will be provided to socially and educationally backward classes for jobs in central services and public undertaking.  The Supreme Court has also held in previous cases that the 27% reservation is not illegal.

The PMK leader, in his petition, states that the government contends that reservation quota for OBCs is different in different states but the question arises that if SCs and STs can be given reservations in the All-India quota then why not the OBCs?

The plea states, “When the policy of reserving 15%, 705% and 10% of seats to SC, ST and EWS is implemented in totality, the OBC reservation alone was not implemented as per norms. This is against the Parliamentary Act to provide reservation to OBCs. The states that give their seats to Central pool will be unable to fulfil their social commitments to OBCs”.

The petition contended, “Arbitrary moving of seats belonging to the OBC to the general category has violated the fundamental rights guaranteed under Article 15 (4) of the Indian Constitution.”

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Hearing a petition against the quashing of a 2002 resolution of the Orissa Government, the Supreme court followed the principle that reservations in promotions cannot be granted without examining adequacy of representation in promotional posts. The resolution passed in 2002 provided reservations for Scheduled Castes and Scheduled Tribes in promotional posts in Orissa Administrative Service with consequential seniority.

The resolution was quashed by the Orissa High Court and this decision was upheld by the Supreme Court bench comprising Justices Mohan M Shantana Goudar and R Subhash Reddy. The Orissa High Court had quashed the resolution for not having any legal basis and mainly on the ground that it can neither be termed as a law in exercise of enabling power of the State under Article 16(4A) of the Constitution nor does it satisfy the parameter laid down by the Supreme Court.

Reliance was placed on M Nagaraj v Union of India in which the validity of Article 16(4A) which was inserted by the 85th Amendment to the Constitution, was upheld. The Court held that the State is not bound to make reservation for SC/STs in matters of promotion but if it wishes to exercise this discretion, it is bound to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. This is to be done while keeping in mind the maintenance of efficiency as indicated by Article 335 of the Indian Constitution.

The Bench held that since the resolution was issued merely by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts, there is no reason to interfere with the well reasoned judgment of the Orissa High Court. The bench further held that since the resolution was not passed basis any legislation or any executive order to that effect, the resolution cannot be termed as law made in exercise of enabling power of the State and nor does it satisfy the parameters laid down in the various precedents set by the previous judgments of the Supreme Court.

The complete judgment can be read here.

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Dalit groups are said to have announced an agitation against the Supreme Court’s (SC) February 7, 2020 order which stated that reservations for promotions in government jobs is not a fundamental right and that courts cannot give directions compelling States to reserve jobs or positions for the Scheduled Castes and Scheduled Tribes (SC / STs), reported The Daily Pioneer.

सभी साथी 23 फरवरी को भारत बंद की तैयारी करें। हम 16 फरवरी को मंडी हाउस से पार्लियामेंट तक मार्च निकालकर सरकार को बता देंगे कि आरक्षण से किसी भी प्रकार की छेड़छाड़ बर्दाश्त नही की जाएगी। मैं सभी राजनीतिक पार्टियों से अपील करता हूँ कि 23 फरवरी के भारत बंद में सहयोग करें। जय भीम

— Chandra Shekhar Aazad (@BhimArmyChief) February 12, 2020

The Supreme Court’s order in the matter had stated that the states that wished to provide quotas would have to submit data on the under-representation of SC / STs in public jobs and that the ‘creamy layer’ (the more economically well-to-do part of the backward classes) wouldn’t be benefitted at the expense of the most undeserving.

Post this, a storm was raised in the Parliament by the Opposition parties demanding that a review petition be filed against the decision or that the Constitution be amended to make reservation a fundamental right.  

The Congress, Lok Janshakti Party (LJP) and Janata Dal United (JDU) contended that the SC order was anti-Dalit. The issue turned into a political slugfest with the Opposition and the NDA blaming each other.

The Tribune reported that outside the Parliament Rahul Gandhi targeted the State’s counsels who argued that reservation wasn’t a fundamental right and said, “The RSS and the BJP cannot stand the idea that Dalits, tribals and OBCs have reservation. They have attempted to remove reservation. They demolished the Ravidas temple here. You saw what they did to the SC-ST sub-plan. Now they are arguing that reservation is not a fundamental right. It is in their DNA to try and erase reservations but no matter what their fantasies, we won’t let it happen.”  

As the Opposition staged a walkout, Thawar Chand Gehlot, a member of the BJP and Social Justice Minister said, “This is a very important issue. We are conducting a high-level review. The Government of India was neither made a party to this case nor was its affidavit sought. The SC order emanates from a September 5, 2012, decision of the then Congress-led government of Uttarakhand to not grant reservation in promotions to SCs and STs.”

In July 2012, the Uttarakhand High Court, while hearing the case of Vinod Prakash Nautiyal vs the State of Uttarakhand, barred reservations in promotions and in September 2012, the Uttarakhand state government issued an order barring departments from giving reservations in promotions to SC / ST employees.

In April 2019, the Uttarakhand HC quashed the state government’s order and in September 2019, the state government put all promotions on hold in the state government departments. Two months later, the Uttarakhand HC put aside the order quashing the state government’s directions. It then directed the Uttarakhand government to collect data on “adequacy/inadequacy in the representation of SCs and STs before providing reservation for the posts that are filled through promotions in government jobs”. In the same month, the state government and a body of general and Other Backward Classes (OBC) employees filed a special leave petition in the Supreme Court.

Speaking to PTI, Union Minister Ram Vilas Paswan asked to “rectify” the Supreme Court verdict, an ordinance should be brought and the Constitution should be amended and all such issues should be included in the Ninth Schedule of the Constitution to insulate them from judicial review so that they aren’t delayed due to legal wrangles.

He said, “The Supreme Court saying that it is up to the state government for giving reservation in jobs and it is not a fundamental right…This is all part of the Constitution, and the people have this objection that the verdict is against the interests of the SCs and STs.”

He also said that around 70 Dalit and tribal MPs, including Union Ministers had gathered for a meeting earlier in the week and decided to put forth two main demands to the government – an ordinance be passed and then Constitutional amendment made to nullify the Supreme Court verdict on reservation in jobs and also have an Indian Judicial Service to ensure representation of SCs, STs and OBCs in the higher judiciary.
 

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In 2011, after several years of deliberation and under pressure from the Supreme Court, the Union government under the United Progressive Alliance decided to conduct a socio-economic and caste census. This followed massive protests that had broken out in 2006 against the Centre’s decision to reserve government jobs and seats in higher educational institutions for members of the Other Backward Classes. The court said that it needed concrete data on caste numbers so that it could determine whether the quota limit, which it set at 50% in 1992, could be altered.

But six years after the caste census was completed, there is no sign of the caste component of the data being released, though a small part on the economic conditions was put out in 2014.

In the meantime, state governments have begun challenging the 50% limit. In April, for instance, the Telengana government decided to increase quotas for Muslims and Scheduled Tribes. In 2015, the state government had set up the Sudhir commission to study the Muslim community’s conditions. It was found that despite constituting 12% of the state population, Muslims got only 7.6% of government jobs. The community was also lagging behind in education. By increasing the quota for Muslims to 12% from the existing 4%, the Telengana government went way past the 50% ceiling.

In order to avoid judicial intervention, the state government said the reservations for Muslims had nothing to do with religion: it contended that the quota was alloted on the basis of the community’s economic backwardness. However, the courts have struck down previous attempts to create quotas for religious groups. They have not viewed the economic argument favourably as the Constitution recognises only educational and social backwardness.
Telangana Chief Minister K Chandrashekhar Rao had also cited the example of Tamil Nadu, where quotas are as high as 69%. A challenge to Tamil Nadu’s reservation policy is currently before a nine-member Constitution bench of the Supreme Court.

What does this confusion really say about India’s policy of affirmative action? First, the Supreme Court’s decision to cap reservations at 50% has been criticised widely for its arbitrariness. Some have argued that such a cap allows members of the upper castes to corner a disproportionate share of resources, since they dominate the 50% of jobs and seats left to open competition.

Secondly, the only reason that could be cited for the Centre’s failure to release the caste data is its reluctance to take on upper caste interests. In the process, not only is the Centre denying vulnerable communities their legitimate share of reservations, it is also risking the danger of the caste census being dismissed as dated. In the meantime, the absence of quality data on caste and socio-econimic condition is leading to what the Supreme Court termed as “competitve backwardness”. Even historically well-off groups, such as Patels in the Gujarat and the Jats in North India, are seeking reservations, to the detriment of weaker communities.

There was also the question of federal rights involved in this debate. By holding back the caste census data, the Centre is also indirectly limiting the powers of state legislatures from making changes to the reservation law since they are unable to get the 50% ceiling lifted in the courts.

Courtesy: Scroll.in
 

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