Bhopal: After Other Backward Class (OBC) reservation row and Karni Sena’s anti-reservation protest last week, resentment is brewing among two lakh Schedule Caste (SC) and Scheduled Tribe (ST) government employees in the election year.

The AJJAKS, a union of Schedule Caste and Scheduled Tribe Employees, on Sunday announced to hold a massive rally (SC/ST Samagam) on February 26 in Bhopal against Shivraj Singh Chouhan-led BJP (Bharatiya Janata Party) government.

The decision to hold the rally was taken in a meeting of block presidents, and office bearers of the union held on Sunday at Bhopal’s Ravindra Bhawan.

Speaking to Newsclick, General Secretary of AJJAKS, SL Suryavanshi, said, “The promises chief minister Shivraj Singh Chouhan made on June 12, 2016, to the employees of reserved community in a public rally are still unfulfilled. He promised reservations in all government hirings, reservations in promotions, hiring on backlog reserved seats and others. On his direction, the General Administrative Department framed rules for reservations in promotions and a roaster system in 2017, but he didn’t intend to implement it. It has been six years since.”

“Chief minister Chouhan is compelled to fulfil the promises he made publicly,” he lamented.

“The reservation in Health, Finance, Co-operative Departments, District Courts and government medical colleges has been revoked. Besides, there is no reservation for outsourced employees. Every provision of the Reservation Act 1994 is being violated by this government.”

“Not just that,” He further said, “The constitutional rights of the SC/ST community are being stripped away. They are facing discrimination on postings and mental harassment at workplaces.”

CM Chouhan’s announcement on June 12, 2016, is significant in many ways. It was the same public rally where CM Chouhan made “Jab Tak Mai Hu, Koi Mai Ka Laal Reservation Khatam Nahi Kar Sakta….” to end the suspension over the reservation of the SC/ST Community. But it upsets the general category voters who allegedly voted against the BJP in the 2018 elections and drove out the saffron party from the state.

The office bearers of AJJAKS claimed that they had submitted memorandums at the block and district levels. “If our demands are not met by January 29, we will hold a rally on February 26 in Bhopal to ring the last alarm to the ruling government,” said Vinod Singh Batti, Bhopal district president, AJJAKS to NewsClick.

When asked the reasons for CM Chouhan’s reluctance to deliver the promises, he explained, “Leaders and officials of upper castes have deluded him that this move can backfire and can enrage the voters of the general category again, which is not true.”

Facing flak from the voters of the Rajput community for his 2016 ‘Mai Ka Laal‘ remark, chief minister Chouhan on January 5, 2023, announced a government holiday to mark the birth anniversary of Maharana Pratap, construction of a memorial after queen Padmavati, withdrawal of cases lodged against members of the Rajput community during the protest of film Padmavat, a hostel for the poor upper-class students, rebate in examination fee for upper-class students on the lines of SCs/STs and others.

He made the announcement when Karni Sena announced to protest against the government on January 8 at Bhopal’s Jamboree Maidan.

Not just that, Chief Minister Chouhan also laid the foundation stone of the Padmavati memorial the same day. Yet, a section of Karni Sena broke apart and decided to protest at Jamboree Maidan as per the decided schedule of January 8, 2023.

The Karni Sena is a well-known right-wing organisation backed by the BJP. The organisation came to light in 2017 during the agitation of the Hindi film Padmavat produced by Sanjay Leela Bhansali.

With 21 demands, under the banner of Karni Sena Pariwar Sarva Samaj led by one Jeevan Singh Sherpur of Ratlam, launched an intense protest at Bhopal’s Jamboree Maidan from the night of January 7.

They were demanding a law for the protection of interests of the general category and OBC persons on the lines of the SC/ST Act, age relaxation in recruitments to general category students, not increasing the retirement age of government employees, early recruitments on vacant posts, relaxation of criteria in EWS quota, retracting of cases against Karni Sena members who participated in agitation against movie Padmavat and in farmers’ agitation.

The BJP, which has already been facing allegations of being anti-reservation, the ‘softness’ of the government with the agitating Karni Sena members added fuel to the fire.

Commenting over the Karni Sena’s recent protest, SL Suryavanshi said, “The BJP government, which quelled the OBC reservation protests with an iron hand, offered juice, food and protection to the protestors for days who openly abused CM Chouhan’ deceased mother and spoke against the constitution.”

Justifying his demands, he further said that Karni Sena’s demand is not only unconstitutional but irrational. “The reservation has been granted based on social inequality, caste-based discrimination, not based on financial condition.”

The financial status of the person does not improve the caste discrimination in society, he said.

“Those advocating for the reservation on the economic background should first guarantee the end of caste-based discrimination. Can they do it?” he lamented.

According to the 2011 census, Schedule Caste and Scheduled Tribes accounted for 37 % of the population. Both communities have over two lakh government employees who have sway over the 10 lakh voters.

Courtesy: Newsclick

The post MP: Promises CM Made in 2016 Still Unfulfilled, Alleges SC/ST Employee Association appeared first on SabrangIndia.

In a majority judgement, a five-judge constitutional bench of the Supreme Court upheld the reservation introduced for the Economically Weaker Sections (EWS) up to 10% to be constitutionally valid.

The bench of Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala held the majority view while CJI UU Lalit and Justice S Ravindra Bhat took the dissenting view that EWS reservation was not constitutionally valid for being exclusionary to the disadvantaged classes i.e. Scheduled Castes (SC), Scheduled Tribes (ST)and Other Backwards Classes (OBC) (non-creamy layer). The analysis of the minority judgement may be read here.

The Constitution (103rd Amendment) Act was introduced in 2019.

This amendment inserted Clause (6) to Article 15 which reads as follows:

(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. 

Clause (6) inserted to Article 16 reads thus:

“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.

The petitioners, challenging the constitutionality of the 2019 amendment, were represented by academician Dr Mohan Gopal, Prof Ravi Verma Kumar, Senior Advocates Meenakshi Arora, P Wilson, Gopal Sankaranarayanan and Shadan Farsat who argued that the amendment inverted the concept of reservation into a scheme for financial upliftment. They further argued that reservations were granted on the basis of anti-discrimination and not on the basis anti-deprivation and the EWS reservation seminally changes that.

Basic Structure

The Court held that the doctrine of basic structure has been applied in the past by the court against such hostile constitutional amendments which were found to be striking at the very identity of the Constitution, like direct abrogation of the features of judicial review (Kesavananda Bharati vs. State of Kerala & Anr. (1973) 4 SCC 225, Minerva Mills Ltd. And Ors. v. Union of India and others, AIR 1980 SC 1789 and P. Sambhamurthy and Ors. v. State of Andhra Pradesh and Anr.: (1987) 1 SCC 362); free and fair elections (Indira Nehru Gandhi v. Raj Narain and Anr.: 1975 Supp SCC 1); plenary jurisdiction of constitutional Courts (L. Chandra Kumar v. Union of India and Ors.: (1997) 3 SCC 261); and independence of judiciary (Supreme Court Advocates-on-Record Association and Anr. v. Union of India: (2016) 5 SCC 1)

The court also noted that a mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice, as exposited in Bhim Singhji (Maharao Sahib Shri Bhim Singhji vs. Union of India & Ors. (1981) 1 SCC 166). If a constitutional amendment moderately abridges or alters the equality principles, it cannot be said to be a violation of the basic structure. (Para 39).

The court concluded its observations on basic structure by stating thus,

“Para 101. …even if reservation is one of the features of the Constitution, it being in the nature of enabling provision only, cannot be regarded as an essential feature of that nature whose modulation for the sake of other valid affirmative action would damage the basic structure of the Constitution.”

Reasonable Classification

The court explained the principle of equality in the following manner:

“Para 44. In a nutshell, the principle of equality can be stated thus: equals must be treated equally while unequals need to be treated differently, in as much as for the application of this principle in real life, we have to differentiate between those who being equal, are grouped together, and those who being different, are left out from the group. This is expressed as reasonable classification.

The court held that valid classification does not require perfect equality and if there is uniformity within a group, the law cannot be termed discriminatory even if some included in the class get an advantage over others left out, so long as they are not singled out for special treatment.

The court observed that Articles 15 and 16 do not cast a duty on the State in terms of providing reservation and neither do they confer a right on anyone. Reservation is an exception to the general rule of equality and hence, “cannot be regarded as such an essential feature of the Constitution that cannot be modulated; or whose modulation for a valid reason, including benefit of any section other than the sections who are already availing its benefit, may damage the basic structure”, the court opined. (Para 56)

Justifying reservation on economic criteria

The petitioners had argued that affirmative action was envisaged only for socially and educationally backward class of citizens; and economic disadvantage alone had never been in contemplation for this action of reservation

“Para 67. …if an egalitarian socio-economic order is the goal so as to make the social and economic rights a meaningful reality, which indeed is the goal of our Constitution, the deprivations arising from economic disadvantages, including those of discrimination and exclusion, need to be addressed to by the State; and for that matter, every affirmative action has the sanction of our Constitution,” the court held.

Article 46

The court refused to accept the contention of the petitioners that the expression “other weaker sections” refers only to those weaker sections who are similarly circumstanced to SCs and STs.

Article 46, part of Directive Principles of State Policy (DPSP), under the Constitution reads as follows:

“Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”

The court opined that, “A simple reading of the heading together with the contents would make it clear that the broader expression “other weaker sections” in Article 46 is disjointed from the particular weaker sections (Schedule Castes and Scheduled Tribe); and is not confined to only those sections who are similarly circumstanced to SCs and STs.” (Para 73)

Further the court held that it is not the requirement of our constitutional scheme that an amendment to the Constitution has to be based on some existing provision in DPSP and hence did not analyse any of the further and detailed arguments on and around Article 46.

Is the  amendment exclusionary?

The petitioners had contended that keeping the socially and educationally backward classes out of Articles 15(6) and 16(6) is directly in conflict with the constitutional scheme and is therefore an act of inexplicably hostile discrimination. They asserted that the SC/ST/OBC are comprised of the poorest of the poor and hence keeping them out of the benefit of EWS reservation is an exercise conceptionally at conflict with constitutional norms and principles.

However, the court observed that there is a logic in the exclusion of SC/ST/OBC from the EWS reservation and that this exclusion is inevitable for the true operation and effect of the scheme of EWS reservation.

On one hand the court recognises that poverty is associated with social and educational backwardness which is predominant in SC/ST/OBCs, yet it finds that since these categories are already provided with affirmative action in terms of reservation there is no need to extend them yet another benefit under EWS. As per the court, affirmative action of reservation for a particular target group, to achieve its desired results, has to be carved out by exclusion of others.

The court also held that if this exclusion was not put in place, the entire balance of the general principles of equality and compensatory discrimination would be disturbed, with extra or excessive advantage being given to SC/ST/OBCs.

“Para 82.1. …As a necessary corollary, when EWS is to be given support by way of compensatory discrimination, that could only be given by exclusion of others, and more particularly by exclusion of those who are availing the benefit of the existing compensatory discrimination in exclusion of all others. Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory discrimination of the same species as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation.”

Is right to equality violated?

The court said that even if for the sake of argument, it is assumed that the amendment alters equality principles, it is, in this case, a moderate abridgment of rights for a valid purpose and does not amount to an abrogation or annulment of those rights. “it cannot be said that the amendment in question leads to such a violation of the rule of equality which is shocking or is unscrupulous travesty of quintessence of equal justice,” the court held. (Para 85)

50% cap on reservations

The court controversially opined that the argument regarding the cap of 50% is based on all those decisions by this Court which were rendered with reference to the reservations existing before the advent of this amendment and that this 50% cap is applicable to classes who avail benefits envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution alone.

Conclusion

In its concluding remarks, the majority judgement of the court held thus,

• reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India.

• Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of nondiscrimination and compensatory discrimination, does not violate the Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India.

• Reservation for EWS does not breach the limit of the 50% ceiling because that ceiling is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.

The court conclusively held in a majority verdict that the 103rdconstitution amendment does not breach the basic structure of the Constitution in excluding  SC/ST/OBCs  or by making special provisions on economic criteria.

Critique of the SC decision

A critique of the majority judgement published in The Quint notes that the majority bench overlooked the fact that those born in poverty though unfortunate are likely to be able due to uplift themselves out of poverty. However, those belonging to SC/ST/OBCs are in that social and economic position due to their ascribed status which means they are born into it and cannot change this ‘social status’ or their caste, even if they uplift themselves economically somehow. Also, reservation was intended by the Constitution makers to be a tool for non-discrimination and not non-deprivation.

The majority bench failed to delve into the intent behind reservations as a compensatory tool for correcting historical injustice imposed upon these disadvantaged communities who have been facing social discrimination for generations. In fact, by underplaying the extent and import of this caste based phenomenon that has taken brutal forms, the majority verdict articulates a push back argument from privileged sections of anti-reservationists visible and vocal since the Mandal agitation.

The fact that the majority bench has very conveniently set aside the 50% cap on reservations upheld by the Supreme Court in its preceding judgements has also paved the way for the government to introduce more such reservations.

In an opinion piece, noted theoretician on equality and discrimination and a former Delhi University professor, Satish Deshpande writes (in the Indian Express), “but the spirit behind the EWS law achieves exactly what it aims for and struggles so hard to avoid stating openly – reservation for the Hindu upper castes (although, the Union in its arguments does mention reservation is for the ‘forward castes’). And so a new chapter begins in the long saga of the appeasement of our most powerful and most pampered minority”.

He further points out that the most recent rural and urban poverty lines are Rs. 972 and Rs. 1,407, respectively and in a household of five members this amounts to yearly consumption expenditure of Rs.72,000 on an average. The eligibility limit for EWS is Rs. 8 lakh per annum which is 11 times more than this amount. Clearly deprivation or poverty is not what concerned the judges who delivered the majority verdict.

The complete judgement may be read here:

Related:  

Our Constitution does not speak the language of exclusion: minority judgement holds EWS as unconstitutional

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Karnataka: Dalit teen tied to electricity pole and thrashed on suspicion of theft

The post Exclusion of SC/ST/OBC from EWS is valid for keeping balance of equality: SC bench in majority appeared first on SabrangIndia.

On November 7, the Supreme Court in a majority judgment, upheld the Constitutional amendment that introduced 10% quota for the Economically Weaker Sections (EWS) or the economically deprived in education and public employment. While Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the said amendment, CJI UU Lalit and Justice Ravindra Bhat gave a powerful dissenting judgement, holding the amendment to be unconstitutional, exclusionary towards Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) and violative of the Equality Code of the Indian Constitution. 

The dissenting judgment authored by Justice Ravindra Bhat and concurred by Chief Justice UU Lalit gets straight to the point. Justice Bhat does not mince his words as he begins the minority judgment by saying that “this court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle”. Justice Bhat made it clear that introduction of deprivation based affirmative action, is consistent with constitutional goals as long as it addresses deprivation resulting from discriminatory social practices. 

The petitioners contended that the exclusion enumerated in Article 15(6) falls foul of the equality code and amounts to a violation of basic structure, as it introduces a new class of “economically weaker sections” while excluding the classes covered in Article 15(4) [i.e., socially and educationally backward classes including Scheduled Castes and Scheduled Tribes] 

At the outset, Justice Bhat’s judgment concludes that introduction of reservation for EWS is exclusionary and violates the basic structure on the ground of exclusion. To reach this conclusion, he delved into provisions of the Equality Code (Articles 14, 15, 16, and 17) and how it is a part of basic structure of the Constitution. It held that introduction of EWS reservation [through insertion of Article 16(1)] violates the right to equal opportunity, in addition to the non-discriminatory facet of equality, both of which are part of the equality code and the basic structure.

The Equality Code 

It was observed in the judgement that the debates in the Constituent Assembly leading to the framing of Articles 15(1) and 15(2) clearly point to the overarching idea of nondiscrimination as one of the basic facets of equality.

“41. As far as Article 16 goes, the idea behind that provision was to achieve the goal of equal opportunity (as appearing in the Preamble) in matters of public employment…Article 16(4) is the only provision in the original Constitution which enabled reservation – in favour of any backward class of citizens that were not adequately represented in the services under the State.”

Justice Bhat has opined that the Equality Code is not about the grand declaratory sweep of equality: but equally about the absolute prohibition against exclusion from participation in specified, enumerated activities, through entrenched provisions.

“60. …in this Court’s opinion, the basic framework of the constitution or the idea and identity of equality was that:

(i) There ought to be no discrimination in any form, for any reason whatsoever on the proscribed grounds, including in matters of public employment;

(ii) That the provision for affirmative action was an intrinsic part of the framework and value of equality, i.e., to ensure that the equality of classes hitherto discriminated and ostracized, was eventually redressed.” (Para…)

“71. …The idea of the twin assurance of non-discrimination and equality of opportunity, is to oblige the state to ensure that meaningful equality is given to all,” said Justice Bhat. It has been observed that the idea of equality is tethered to non-discrimination, that there cannot be any exclusion by the state in vital spheres of human activity 

Basic structure

The judgement states that, “(para 77) the irresistible conclusion is that non-discrimination – especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provisions in Articles 17 and 15] constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic structure”. (Para…) 

Reasonable Classification

“80. I am of the opinion that the application of the doctrine classification differentiating the poorest segments of the society, as one segment (i.e., the forward classes) not being beneficiaries of reservation, and the other, the poorest, who are subjected to additional disabilities due to caste stigmatization or social barrier based discrimination – the latter being justifiably kept out of the new reservation benefit, is an exercise in deluding ourselves that those getting social and educational backwardness based reservations are somehow more fortunate,” Justice Bhat opined. 

The judgement in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 where discrimination faced by transgender persons was deprecated and the court had held that treatment of equals and unequals as equals, is violative of the basic structure. 

The judgement categorically holds that the fact that SC/ST are covered by reservations cannot be a ground for reasonable classification since none of the material placed before the court suggest that SC/ST/OBC should be excluded from the poverty or economic criteria-based reservation, on the justification that existing reservation policies have yielded such significant results, that a majority of them have risen above the circumstances which resulted in, or exacerbate, their marginalization and poverty.

Amendment is exclusionary

The concern raised in this dissenting judgement is that “There is nothing to suggest, how, keeping out those who qualify for the benefit of this economic-criteria reservation, but belong to this large segment constituting 82% of the country’s population (SC, ST and OBC together), will advance the object of economically weaker sections of society.” (Para 91)

The judgement states that EWS category has no connection with social or educational backwardness and hence caste or community is not the identifying criteria or classifier; and by the exclusion clause Article 15(6) “keeps out the socially and educationally backward classes, particularly SC/STs operates to discriminate them, because overwhelming numbers of the poorest are from amongst them.” (Para 93) 

By excluding SC/ST/OBC from the EWS category. Their existing reservations have been viewed as “benefits and privileges” and thus disentitles them from accessing EWS reservation which is based on economic deprivation. Even though the reality is that they fall under the description of economically deprived, they are excluded from EWS as “they are loaded with benefits” (as contended by the respondents) and this belittles their plight.  

It is cold comfort for the person who otherwise fulfils all the characteristics of an identifier such as poverty to be told that she is poor, as desperately poor or even more so than members of other communities yet she is being kept out because she belongs to a scheduled caste or scheduled tribe, the judgment points out. (Para 98) 

The argument that including the poor among SC/ST/OBC in the EWS category would be bestowing “double benefit” is flawed since what is being described as “benefits” by the Union, “cannot be understood to be a free pass, but as a reparative and compensatory mechanism meant to level the field – where they are unequal due to their social stigmatisation.” The judgment states that “this exclusion violates the non-discrimination and the non-exclusionary facet of the equality code, which thereby violates the basic structure of the Constitution.” (Para 100) 

It further observes that destitution, economic deprivation, poverty, are markers, or intelligible differentia that form the basis of classification for EWS, however excluding a large section of equally poor and destitute individuals based on their social backwardness, the amendment practices constitutionally prohibited forms of discrimination. 

Justice Bhat observed that introduction of reservations for economically weaker sections of the society is not premised on their lack of representation (unlike backward classes); the absence of this condition implies that persons who introduction of reservations for economically weaker sections of the society is not premised on their lack of representation (unlike backward classes); the absence of this condition implies that persons who are not socially backward, and whose communities are represented in public employment – violates the equality of opportunity which the Preamble assures, and Article 16(1) guarantees. (Para 131) 

He further explains his stance with an example as follows:

“132. …For instance, if the poorest citizens among a certain community or that entire community, is unrepresented, and the quota set apart for the concerned group (SC) as a whole is filled, the requirement of “representation” is deemed fulfilled, i.e., notwithstanding that the specific community has not been represented in public employment, no citizen belonging to it, would be entitled to claim reservation. However, in the case of non-SC/ST/OBCs, whether the individual belongs to a community which is represented or not, is entirely irrelevant. This vital dimension of need to be represented, to be heard in the decision-making process, has been entirely discarded by the impugned amendment in clause (6) of Article 16. Within the amended Article 16, therefore, lie two standards: representation as a relevant factor (for SC, ST and OBC under Article 16(4)), and representation as an irrelevant factor (for Article 16(6)).”

Enabling provision

The Union contended that the amendment was only an enabling provision and thus cannot violate basic structure and while this view was accepted in the judgment authored by Justice Pardiwala, Justice Bhat refused to accept the same. 

“157. …The enabling provision in question’s basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court’s inquiry therefore, cannot stop at the threshold, when an enabling provision is enacted…To view a newly added provision as only “enabling” can be an oversimplification in constitutional parlance.,” he opined.

Article 46

Justice Bhat, through his judgement, has reminded us that the scope of Article 46, which is part of Directive Principles of State Policy, is to ensure upliftment of all poor sections, including SC/ST/OBCs.

“165. In my considered opinion, it would be wrong to characterize that the classification made for upliftment of SC/STs for whom special mention is made, is a “classification” for the purpose of upliftment of economically weaker sections, under Article 46, which permits a later classification that excludes them. If anything, the intent of Article 46 is to ensure upliftment of all poor sections: the mention of SC/STs is to remind the state that especially those classes should not be left out. But ironically, that is exactly the result achieved by their exclusion,” he wrote.

Article 46 reads as follows:

“Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”

In his opinion, “The mention of SC/STs in Article 46 is a reminder to the state never to ignore them from the reckoning whenever a measure towards economic emancipation under Article 46 is introduced by the State.” (Para 167)

Breach of 50% cap in reservations

Justice Bhat threw caution to the wind on the consequence of upholding the EWS reservation as it breaches the 50% limit on reservations but refused to give specific opinion on the same since it has been challenged in another case which is pending before another bench. However, the majority judgement did comment on the same while upholding the reservation that creation of another class which can be a recipient of up to 10% of the reservation, over and above 50%, that is permitted under Articles 15(4) or 16(4). Justice Bhat dissented from this view as well and opined that “because permitting the breach of the 50% rule as it were through this reasoning, becomes a gateway for further infractions whereby which in fact would result in compartmentalization”.  By doing this, the minority judgement argues and by allowing this, the right to equality could be easily reduced to right to reservation and also recollected Dr BR Ambedkar’s cautionary words that reservations are temporary else they would “eat up the rule of equality”. (Para 178)

Conclusion 

The dissenting minority judgement holds thus:

“187. The exclusionary clause (in the impugned amendment) that keeps out from the benefits of economic reservation, backward classes and SC/STs therefore, strikes a death knell to the equality and fraternal principle which permeates the equality code and non-discrimination principle.”

“188. … exclusion, with all its negative connotation –is not a constitutional principle and finds no place in our constitutional ethos. Therefore, to admit now, that exclusion of people based on their backwardness, rooted in social practice, is permissible, destroys the constitutional ethos of fraternity, non-discrimination, and non-exclusion.”

Justice Bhat (Chief Justice UU Lalit in concurrence) opines that the impugned amendment – by excluding backward classes – is violative of the basic structure of the Indian Constitution.

He explains it in simple words: the marker for inclusion under EWS is poverty or deprivation, irrespective of which community or caste the beneficiary belongs to. But at the same time the State is excluding certain communities who may be equally or desperately poor from benefits of this EWS quota since they belong to those communities. 

“190. …This dichotomy of on the one hand, using a neutral identifier entirely based on economic status and at the same time, for the purpose of exclusion, using social status, i.e., the castes or socially deprived members, on the ground that they are beneficiaries of reservations (under Article 15(4) and 16(4)) is entirely offensive to the Equality Code.”

He further states thus

“191. …the “othering” of socially and educationally disadvantaged classes – including SCs/ STs/ OBCs by excluding them from this new reservation on the ground that they enjoy pre-existing benefits, is to heap fresh injustice based on past disability.” 

The judgement ultimately concludes to hold that the impugned constitutional amendment i.e. Sections 2 and 3 of the Constitution (One Hundred and Third Amendment) Act, 2019 which inserted clause (6) in Article 15 and clause (6) in Article 16, respectively, are unconstitutional and void on the ground that they are violative of the basic structure of the Constitution.

The complete judgement may be read here:

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Assam: Six tribal groups protest non-inclusion in Centre’s revised ST list

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On February 11, the Minister of Law and Justice Ravi Shankar Prasad informed the Rajya Sabha that Dalits who convert to Islam and Christianity will not be eligible to contest assembly or parliamentary elections from Scheduled Caste reserved constituencies, reported The Times of India.

Dalits taking to the above-mentioned faiths also cannot claim other reservation benefits. But according to a TOI report, the Law Minister clarified that those adopting Hindu, Sikh or Buddhist faith could contest from Scheduled Caste reserved seats and will be receiving other reservation benefits.

To the question asked by BJP leader GVL Narasimha Rao in Rajya Sabha, the minister said, “Paragraph 3 of the Constitution (Scheduled Castes) order outlines that…no person who professes a religion different from Hindu, Sikh or Buddhist religion shall be deemed to be a member of a Scheduled Caste”.

Further, the Union Minister also informed that at present, there is no proposal to bring in any amendment in the Representation of the People’s Act to disallow Scheduled Caste/ Scheduled Tribe converting to Islam and Christianity from contesting elections.

The Hindu also quoted Ravi Shankar Prasad saying that there were multiple judgments in place on quota to Dalit Muslims and that the Supreme Court had said that, “till the time you agree that you don’t face the same discrimination then benefits cannot be granted to you”.

This stance of the present government worsens the conditions of those Dalits who have converted to Islam or Christianity, the subject of a decades long Constitutional challenge, still pending before the Supreme Court. The root of this injustice lies in a 1950 Presidential (Scheduled Castes) Order, that specifically excludes Dalit Christians and Muslims from any schemes, affirmative action’s etc. that are allowed to others.

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

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

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

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

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

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

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

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

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

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

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

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

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

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