Minority Issues – Dalits, OBC, Reservations, etc.

Jul, 20, 2019

[op-ed snap] Inclusion over exclusion: on Assam NRC

CONTEXT

With the Supreme Court-led process of updating the National Register of Citizens in Assam nearing its deadline of July 31, the complexities involved in the gargantuan exercise have dawned upon the executive. Both the Central and State governments have sought an extension. But it remains to be seen whether the Court, which has insisted on sticking to the timelines, would relent when it hears the matter on July 23.

Background

  • The first draft NRC published on the intervening night of December 31 and January 1, 2018 had the names of 19 million people out of the total 32.9 million who had applied for inclusion as citizens.
  • The second draft NRC, published on July 30 last, upped it to 28.9 million but left out four million found ineligible.
  • Around 3.6 million of them subsequently filed citizenship claims. An “additional exclusion list” was issued last month containing 1,02,463 names included earlier in the draft list.
  • In anticipation of millions being ultimately left out, the Assam government is moving to set up 200 Foreigners’ Tribunals to handle cases of people to be excluded from the final NRC, as part of a larger plan to establish 1,000 such tribunals.
  • The State government is also preparing to construct 10 more detention centres; six are now running out of district jails.

Problems

  • A humanitarian crisis awaits Assam whether the final NRC is published on July 31 or after. In the run-up to the final publication, case after case has emerged of persons wrongfully left out of the list.
  • The process has left no group out of its sweep, be it Marwaris or Biharis from elsewhere in the country, people tracing their antecedents to other Northeastern states, people of Nepali origin, and caste Hindu Assamese.
  • The prime targets of this exercise, however, are Hindu Bengalis and Bengali-origin Muslims of Assam — more than 80% of the 4.1 million people named in the two lists belong to these two groups.
  • Yet, the rationale of the Centre and State in seeking a deadline extension, as found in their submissions in the Supreme Court, betrays an exclusionary bias.
  • The joint plea sought time to conduct a 20% sample re-verification process in districts bordering Bangladesh and 10% in the rest of the State to quell a “growing perception” that lakhs of illegal immigrants may have slipped into the list.
  • This, despite the State NRC Coordinator’s reports to the apex court suggesting that up to 27% of names have been reverified during the process of disposal of claims.

Conclusion

  • It hasn’t helped that the Central government keeps holding out the prospect of unleashing a nationwide NRC to detect and deport illegal aliens, when it has no index to base such an exercise on — the 1951 register was exclusive to Assam.
  • The accent should be on inclusion, not exclusion.
  • The wheels of justice cannot pander to the suspicions of a vocal majority without giving the excluded access to due process.
Jul, 16, 2019

[op-ed of the day] A test of law and justice

Note- Op-ed of the day is the most important editorial of the day. Aspirants should try to cover at least this editorial on a daily basis to have command over most important issues in news. It will help in enhancing and enriching the content in mains answers. Please do not miss at any cost.

CONTEXT

  •  The challenges made to the 103rd constitutional amendment, though, which a two-judge bench of the Supreme Court is slated to hear this month, present a rather more difficult test.Here, the issues involved concern questions both over whether the amendment infringes the extant idea of equality, and over whether that idea is so intrinsic to the Constitution, that departing from it will somehow breach the document’s basic structure.
  • The court’s answers to these questions will operate not merely within the realm of the law but will also likely have a deep political bearing — for at stake here is the very nature of justice that India’s democracy embodies.

Background

The law, which was introduced in January this year, amends Articles 15 and 16 of the Constitution, and grants to the government the power to provide for reservation in appointments to posts under the state and in admissions to educational institutions to “economically weaker sections of citizens [EWS]”.

Reasons for Challenging the amendment

  • According to the petitioners in the Supreme Court, the central hypothesis of the amendment, where reservation is predicated on individual economic status, violates the Constitution’s basic structure.
  • In their belief, the law, by providing for affirmative action unmindful of the structural inequalities inherent in India’s society, overthrows the prevailing rationale for reservations.
  • In doing so, they argue, the amendment destroys the Constitution’s idea of equal opportunity.
  • The Union of India argues that while the Constitution demands equality, it does not confine Parliament to any singular vision.
  • According to it, the power to amend the Constitution must necessarily include a power to decide how to guarantee equal status to all persons.

Meaning and purpose

Constitution’s Idea –

  • The Constitution’s framers saw the measure as a promise against prejudice, as a tool to assimilate deprived groups into public life, and as a means of reparation, to compensate persons belonging to those groups for the reprehensible acts of discrimination wrought on them through history.
  • Marc Galanter has called this a compensatory discrimination principle.

Dismantling the hierarchical structure –

  • By providing for a more proportionate distribution of the share in administration, the programme of reservations, it was believed, would end at least some of caste-based domination of jobs, particularly of employment in the public sector — a domination that was built over thousands of years, where Dalits and Adivasis were denied access to equal status.
  • The strategy behind reservations could, therefore, never have involved an attack on pure economic backwardness.
  • The idea was always to disavow caste-monopoly in the public sector.

The idea of Justice – Behind this thinking was a distinctive theory of justice: that by according a greater share in public life to historically disadvantaged groups the relative position of those groups would stand enhanced.

Challenging Caste Monopoly – No doubt such a policy would not, in and of itself, help eliminate the various inequalities produced by the caste system, but it was believed it would represent a resolute effort to eliminate at least some of the caste-based domination prevailing in society.

Based of Social and educational Backwardness – Indeed, the policy and the idea of justice that undergirds it have been seen as so indispensable to the Constitution’s aims and purposes that the Supreme Court in State of Kerala v. N.M. Thomas (1975) held that reservations based on social and educational backwardness, far from being an exception ought to be seen as an intrinsic facet of the idea of equality.

Problem with new logic 

  • Idea of equality is changed – It is in departing from this logic that the 103rd amendment unseats the Constitution’s code of equality.
  • Transient criterion – Pure financial ability is a transient criterion; it doesn’t place people into a definite group requiring special privileges.
  • Favoring powerful – If anything, allowing for reservation on such a principle only further fortifies the ability of powerful castes to retain their positions of authority, by creating an even greater monopolisation of their share in administration.

Court’s Responsibility

  • When the court hears the challenges made to the 103rd amendment, it must see the petitioners’ arguments as representing a credibly defensible view.
  • The least the court ought to do, therefore, is to refer the case to a constitution bench, given that Article 145(3) mandates such an enquiry on any issue involving a substantial question of law concerning the Constitution’s interpretation, and, in the meantime, stay the operation of the amendment until such a bench hears the case fully.
  • Should the court fail to do so the government will surely one day present to it a cruel fait accompli.
Jul, 10, 2019

[op-ed snap] One more quota

CONTEXT

  • Ever since the Supreme Court gave its ruling in the Indra Sawhney case, the complications surrounding the issue of OBC reservations have defied solutions.
  • As I have argued, identifying backwardness, periodic scrutiny of claims to being backward and ensuring fair treatment of those included in the list of backward communities, constituted three challenges emanating from the Mandal discourse .
  • Subsequently, this list of key issues became more complicated by claims from many regionally important peasant communities that they are backward, resulting in crossing the 50 per cent threshold.

Impact of latest Ruling

  • The latest ruling of the Bombay High Court is bound to lead to a new route for states to accommodate demands of various communities.
  • The Court has approved the report of the M G Gaikwad Commission which undertook studies to examine the status of Marathas and made recommendations about the quantum of reservation.

1.No access to report

  • The first question regarding such a policy instrument is this: Can such a far-reaching policy be undertaken without the public having access to the findings of the Commission and without the courts having the benefit of public discussions?
  • Can secrecy and urgency be the basis for policies?
  • For instance, the projected calculations of the population of backward communities, as is quoted in the HC ruling, appear to be tricky, if not altogether problematic.
  • Secondly, the argument of exceptionality is brought into sharp focus by this ruling.
  • It is not clear what constitutes an exceptional situation justifying reservation exceeding 50 per cent.
  • This is likely to open a Pandora’s Box in that all similar claims by other communities (Gujjars of Rajasthan, Dhangars of Maharashtra and so on) could be accepted as being exceptional.

3. Separate Quota

  • Three, the issue of the Maratha quota has brought forward an even more serious issue that the Court has not addressed.
  • Suppose a community is found to be backward and it is not included in the present list of OBCs, what is the justification for creating a separate quota for it?
  • However, such a strategy effectively means that one community is assured of a guaranteed quota while all others have to compete within the quota.
  • For the 19 per cent reservation for OBCs in the state, all the OBC communities need to compete whereas for the 12 or 13 per cent under the HC ruling, only the Marathas get to compete.

Community-specific quota.

  • Reservation, so far, has generally been for a class of citizens belonging to various castes or communities.
  • Even the SC and ST quotas are for a group of communities.
  • By upholding the “Maratha quota”, the Gaikwad Commission, state of Maharashtra and the High Court seem to be creating precedence for a community-specific quota.
  • Such a caste- or community-specific quota has a different logic and trajectory from that of a grouping of communities into classes of citizens deserving affirmative action.

4. Logic of backwardness

  • Fourth, in the present case, the logic of backwardness on grounds of traditional status appears to be overwhelmed by the logic of backwardness on grounds of contemporary economy.
  • Communities that are mainly rural and numerous are bound to have internal stratification, regional variation and skewed access to resources.

Implications

  • Evidently, all these are results of contemporary policies and failures of successive state governments to address the wellbeing of a large section of society.
  •  This tendency of transposing contemporary routes of distress and discrimination onto history tends to undermine the logic behind the social justice policy as understood so far.
  • Precisely this same logic of contemporary distress is being used for the reservation for economically weaker sections.
  • In this sense, we are rapidly moving away from the constitutional logic behind enabling clauses such as Articles 15 and 16.
  • Instead, reservation is seen as the solution to hide distortions of contemporary economic development.

Conclusion

But beyond political compulsions, and beyond legality or constitutionality, this issue poses a larger challenge. That challenge is not merely about semantics, about the meanings of “exceptional” or “adequate representation”. It is to realise that such easy routes endanger societal balance (among groups identified as backward) even as they give a false sense that the issue is amicably resolved.

Jul, 08, 2019

[op-ed snap] Quota politics

CONTEXT

The Uttar Pradesh government’s latest attempt to extend the benefits available to Scheduled Castes to 17 castes that are now under the Other Backward Classes (OBC) list has no legal basis and appears to be aimed at making political gains ahead of a round of by-elections to the State Assembly.

Constitutional Provisions

  • It is fairly well- known that Parliament alone is vested with the power to include or exclude any entry in the SC list under Article 341 of the Constitution.
  • Union Minister for Social Justice and Empowerment Thawar Chand Gehlot has clarified this position in Parliament, while suggesting that the State government follow due process.
  • Uttar Pradesh has unsuccessfully tried to get some backward castes declared as Scheduled Castes in the past, once during the tenure of Mulayam Singh, and again during the rule of Akhilesh Yadav.

Verdict in a previous matter

  • In 2016, a notification was issued stating that 17 castes were to be treated as Scheduled Castes.
  • The matter reached the Allahabad High Court, but in an interim order in March 2017, the court observed that in case any certificates were issued on the basis of the notification, these would be subject to the outcome of the litigation.
  • More than two years later, this order has been utilised by the Yogi Adityanath government to restore the proposal in an oblique manner.
  • Though it is quite apparent that it is not a judicial directive, the State government has asked authorities in all districts to issue certificates to those from these castes.

Problem with this provision

  • No doubt, these 17 castes comprise the most disadvantaged among the backward classes.
  • Categorising the backward classes into two or three sections has been seen as one way to apportion the benefits of reservation among many social groups.
  • In such an exercise, these castes may qualify for a compartment within the OBC quota.
  • However, treating them as Scheduled Castes is beset with problems. For one thing, they may not qualify to be treated as SCs because they may not have suffered untouchability and social discrimination.

Political Motives

  • Given the legal limitations on the State government’s power to expand the SC list, it is not difficult to discern a political motive behind any move to confer SC status on sections of the OBC.
  • When the Samajwadi Party was in power, one could say moving them to the SC list would have freed up more opportunities for the influential and politically dominant Yadavs in the OBC category.
  • For the present BJP regime, the move could help carve out a vote bank from the newly declared SC groups.
  • The Bahujan Samaj Party, which has opposed the move both in Parliament and outside, understands that new additions would shrink opportunities for the existing castes in the SC list. That is why its leader, Ms. Mayawati, has hinted that the reservation pie can be shared among more claimants only if its size is increased.

Conclusion

The U.P. government would be well-advised to avoid misleading vulnerable sections with the promise of SC status.

Jun, 08, 2019

EBPG quota

News

EBPG Reservation

  • The Haryana government has withdrawn its quotas of posts kept reserved under the Economically Backward Persons in General Category (EBPG) and Backward Class (Block-C) in government jobs and state-run educational institutions.
  • The six castes – Jats, Jat Sikhs, Muslim Jats, Tyagis, Rors and Bishnois – that were included in backward class (Block-C) category were the beneficiaries of the scheme.

Why such move?

  • EBPG quota was withdrawn in view of reservation provided under the Economic Weaker Section (EWS) by the central government.
  • Since EWS reservation has come into effect, there was no requirement to continue with reservation of EBPG and such reservation is hereby withdrawn.
May, 31, 2019

[op-ed snap] Bills of rights for the vulnerable

CONTEXT

Important Social Bills

  • In the social sphere, the government introduced the Transgender Bill, the Surrogacy Bill, and the Trafficking Bill.
  • In each of the cases, the draft legislation was — correctly — introduced with the aim of addressing an existing lacuna in the legal landscape.
  • The recognition of transgender rights by enshrining them in law had long been a demand of the community; the legal regulation of surrogacy and the tackling of trafficking as well arose out of the articulated claims of grassroots social movements, debated and framed over many years of engagement and activism.

Issues with  these bills

1.Transgender Bill

  • For example, the Transgender Bill did away with the fundamental and non-negotiable principle — and one recognised by the Supreme Court in its NALSA judgment — of the right to self-determination of gender identity.
  • Instead, it placed such decisions in the hands of government-appointed committees, extending state control over gender identities rather than liberating or emancipating them. It also contained deeply suspect provisions on gender reassignment surgery.

2.Surrogacy Bill

Similarly, the Surrogacy Bill excluded LGBT individuals from its ambit (despite their recognition as equal citizens under the Constitution by the Supreme Court), imposed discriminatory age restrictions upon men and women, and by entirely outlawing “commercial” surrogacy (instead of regulating it with appropriate safeguards) opened up space for underground and unreported exploitation of women, effectively creating a black market.

  • Lastly, the Trafficking Bill criminalised begging without providing any manner of effective alternatives and failed to distinguish between non-consensual trafficking and consensual sex work.
  • It thus opened the door to criminalising livelihoods on the basis of what was effectively a set of narrow, moral objections.

Common Aspects among the bills

Individuality – First, each of them dealt with intimate subjects such as individuals’ decisions of what to do with their body, personal dignity and autonomy, and gender identity.

Rights of vulnerable Section – Second, they concerned the rights of some of the most vulnerable and marginalised members of our society.

Ignoring the stakeholders – Third, they were drafted without adequately consulting with, or listening to, the members of the communities who were impacted.

Enhanced State’s Control – Fourth, instead of guaranteeing and securing the rights of these communities to be free from state interference, they extended the state’s control and domination. And last, they were met by extensive and widespread protests from the communities themselves.

Way Forward

  • While the government is, of course, entitled to frame its own policies, and draft and implement legislation to enact those policies, there are certain constraints upon how it should go about that task.
  • At the minimum, the voices of those who will be directly impacted by the policy should be listened to and engaged with in good faith, and basic constitutional principles and values ought to be respected.
  • The last phase of the previous government’s tenure presented a number of examples where these constraints were insufficiently complied with, and the resulting bills would therefore have ended up harming those whose rights they were meant to protect, apart from falling foul of crucial constitutional rights.
  • It is to be hoped that these lacunae and shortcomings are remedied by the continuing government in power.
  • Apart from the courts, however, this would need a sustained public movement around these issues, which can make its voice heard in the halls of power.
May, 13, 2019

[op-ed snap] Efficiency and quota in promotions — what Supreme Court has said

CONTEXT

The order by a two-Judge bench of Justices D Y Chandrachud and U U Lalit held that a Karnataka statue allowing for reservation in promotions of SCs/STs is valid — the court had, in September 2018, held there was no need to revisit the M Nagaraj case (2006) which spoke of quantifiable data being necessary to decide on reservation.

Background

  • In agitations and annoyance among Dalits and Scheduled Tribes about the “next stage” in the debate over quotas, reservations in promotions have been a big bone of contention.
  • While the Central government has maintained it is now in favour of reservations in promotions, the Supreme Court had, in a series of orders over the years, verged on the conservative.

Latest order

  • The order by a two-Judge bench of Justices D Y Chandrachud and U U Lalit upheld a Karnataka statute, allowing for reservations in promotion.
  • The order stated that inclusive development, and not meritocracy, that were key to ensuring meaningful and substantive equality.

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

3. Forming a well-governed society – Since inclusion is inseparable from a well-governed society, there is, in our view, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State.”

4. No reduction in efficiency by reservations – The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster-point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them.”

5. No abstract criteria for measuring efficiency – The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate,” the judges said.

6. Definition of efficiency –

  • Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.
  • If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency.

Conclusion

  • Our benchmarks will define our outcomes.
  • Efficiency not by exclusion – If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised.
  • Root in equal access – If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce just social order.
  • Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity.”

 

May, 09, 2019

Sub-categorization of OBCs

News

G. Rohini Commission Recommendations

  • The commission to examine sub-categorization of OBCs is all set to recommend a fixed quota.
  • It is possibly between 8 and 10 per cent of the 27 per cent OBC quota for about 1,900 of the 2,633 castes on the central list.
  • This is the first government-mandated exercise to quantify the skewed flow of benefits among different OBC communities and suggest steps to correct the imbalance.

Why sub-categorization?

  • Presently, half of these 1,900-odd castes have availed less than three per cent of reservation in jobs and education, and the rest availed zero benefits during the last five years.
  • The central government had appointed the Commission under Justice (Retd) G Rohini in October, 2017.
  • Five-year data on OBC quota implementation in central jobs and higher educational institutions showed that a very small section has cornered the lion’s share.
  • A/c to the Commission, the classification is based on relative benefits availed and not relative social backwardness, which involves parameters such as social status, traditional occupations, religion, etc.
  • Using the quantum of benefits enjoyed by different communities to sub-categorise OBCs is a major departure from recommendations of several Commissions in the past.

History of Sub-categorization

  • Till date, sub-categorization of OBCs as recommended by a few Commissions and implemented by some states has all used indicators of social backwardness as the criteria.
  • The First Backward Class Commission report of 1955, also known as the Kalekar report, had proposed sub-categorisation of OBCs into backward and extremely backward communities.
  • In the Mandal Commission report of 1979, a dissent note by member L R Naik proposed sub-categorisation in intermediate and depressed backward classes.
  • In 2015, former National Commission for OBCs under Justice (Retd) Eswaraiah asked for sub-categorisation within OBCs into Extremely Backward Classes (Group A), More Backward Classes (Group B) and Backward Classes (Group C).

Reservation based on representation and not backwardness

  • Presently, ten states, including Tamil Nadu, Karnataka, Andhra Pradesh, Telangana, Haryana, Jharkhand, Bihar, West Bengal, Maharashtra, and Jammu, have sub-categorised OBCs.
  • They used varying criteria, including the ascribed status such as denotified, nomadic or semi-nomadic tribes, the religion of a community, caste status before conversion to Christianity or Islam, and perceived status socially or traditional occupation.
  • The Justice Rohini Commission, however, had held that the many communities who are extremely backward in this status show significant representation in jobs and higher education.
  • Even within the DNT communities that are classified under OBC, those that are more isolated in terms of their small numbers or scattered populations have been unable to get the benefit of reservations.
  • The Commission had clarified its stand on fixing OBC quotas based on current representation in reserved seats, and not on social hierarchy.

Conclusion

  • Sub-categorization of the OBCs need not imply establishing a further social hierarchy within the communities included in the Central List on the basis of relative lowness or otherwise of their ascribed social status or traditional occupation.
  • All communities included in the Central list of OBCs are socially and educationally backward — which is a precedent condition for such inclusion — and thus deserving of reservations in education and recruitment.
Apr, 18, 2019

[op-ed snap] The legacy of Ambedkar

CONTEXT

Ambedkar believed that unless the moral values of a constitution are upheld, the grandiloquent words in it will not protect the freedom and democratic values of the people.

Ambedkar’s thoughts

  • Ambedkar attached great importance to constitutional morality in the working of the Constitution.
  • He explained this — by referring to Grote, the Greek historian — as paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control.
  • Question of whether the President was bound by ministerial advice and could act independently?
    • Ambedkar was of the opinion that the president was bound by ministerial advice, and, Rajendra Prasad, the chairperson of the constituent assembly, had protracted exchanges with Ambedkar on this issue.
    • Ambedkar was of the firm view that “the President could not act and will not act except on the advice of the Ministers.
    • These passages are reproduced in the landmark judgment of our Supreme Court in Shamsher Singh’s case, in which the Court accepted Ambedkar’s view.
    • Fundamental rights
      • Ambedkar was also passionate about the guarantees of fundamental rights being appropriately incorporated in the Constitution.
      • Guarantees of fundamental rights remain ornamental promises unless they can be judicially enforced: With that objective in mind, the draft Constitution provided that a person can move the Supreme Court directly for the enforcement of his or her fundamental rights without going through the high court.
    • On Democracy
      • On the concluding day of the deliberations of the constituent assembly, Ambedkar expressed his misgivings about the successful functioning of democracy in our country.
      • If we wish to maintain democracy the first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives.
      • It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha.
      • These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.
    • On Hero Worship -Ambedkar warned that Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.

Social Justice

  • Social justice was Ambedkar’s mission. He fervently believed that mere equality on paper was not sufficient.
  • What was needed was de facto equality, real equality of opportunity for the millions who had been denied it.
  • In ringing tones, on the last day of the constituent assembly, he pointed out the perils of a “life of contradictions”:
  • Cautions against inequality-
    • “How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril.
    • We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy which this Constituent Assembly has so laboriously built up.”

Way Forward

  • The anguished questions posed by Ambedkar continue to haunt us.
  • Social justice, the signature tune of our Constitution, still eludes us.
  • The struggle for social justice must continue with determination and its achievement would be the best tribute we can pay to one of the greatest sons of India.

 

 

 

 

Apr, 10, 2019

[op-ed snap]Is there a problem with the 10% quota?

CONTEXT

In January, the Rajya Sabha passed the Constitution Amendment Bill guaranteeing 10% quota in education and employment to economically weaker sections in the general category.

Background

  • Families that earn an annual income of less than ₹8 lakh and do not possess agricultural land of five acres or above are eligible for the quota.
  • This includes 95% of Indian households.

Concerns

  • Isn’t it strange that in a country which claims to have lifted millions out of poverty, so many households fall in this category?
  • What is more is that these households require reservation, nothing else, to enable them to be socio-economically better off.
  • The Bill has served an unintended purpose, though: Reservation is no more the preserve of the so-called merit-less.
  • The proposed quota has transformed cynics of the reservation policy into champions of it.

Questions regarding policy

  • The first is the rationale underlying the policy that economically weaker sections from the general category remain “excluded from attending the higher education institutions” in India “due to their financial incapacity”.
  • The second is the fact that the Bill also brings private educational institutions under its ambit.

Data Regarding Economically backwards’s representation in educational Institutions

  • The Ministry of Human Resource Development introduced a ranking of higher education institutions in India in 2016.
  • A total of 445 institutions were ranked under the NIRF in 2018.
  • The NIRF data provide the composition of ‘economically backward class’ (EBC) students and ‘socially challenged category’ (Scheduled Castes/Scheduled Tribes/Other Backward Classes) students.
  • The data reveal that of the 16.09 lakh students enrolled in the 445 top institutions in 2016-17, about 28% (4.55 lakh) belonged to the EBC.
  • The share of EBC students was about 30% in private educational institutions. If we consider institutions as the basis of analysis, the facts are self-explanatory.
  • About 66% of the 445 NIRF-ranked higher education institutions had more than 10% of students from the EBC.
  • Interestingly, 68% of private educational institutions also had more than 10% of EBC students.
  • EBC students had already secured about three times the proposed quota of 10% without any reservation in top higher education institutions.
  • This is despite the fact that the income criteria used by most of these institutions vary from ₹2 lakh to ₹5.5 lakh annually, which is far less than the proposed eligibility criterion for the reservation quota, which is ₹8 lakh.

Under-representation of SCs/STs/OBCs

  • The share of ‘socially challenged category’ (SCs/ STs/ OBCs) students in these 445 institutions was 38%, only 10 percentage points more than the share of EBC students.
  • Surprisingly, the share of SC/ST/OBC students stood at only 44% in public institutions, which are mandated to implement 49.5% reservation.
  • In private educational institutions ranked by the NIRF, their share was as low as 30%, which was similar to the share of EBC students.
  • Here too, only 19% of private higher educational institutions ranked by the NIRF had more than 49.5% of SC/ST/OBC students.
  • Thus, SC/ST/OBC students remained greatly under-represented, especially in premier private educational institutions. This is despite the fact that the SC/ST/OBC population constitutes about 70% of the total population of India (NSSO, 2011-12).

Conclusion

  • The EBC students have already secured more than 10% share in these institutions without any reservation.
  • Hence, the proposed policy seems to be empirically unfounded.
  • By contrast, what emerges from the NIRF data is the under-representation of the ‘socially challenged category’ in premier education institutions.
  • It appears that the government is going to extend reservation for SC/ST/OBC students to private higher education institutions. This would certainly bring the much-needed diversity in premier private higher education institutions in India.
Mar, 11, 2019

[op-ed snap]The flawed unit of academic quotas

Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level:  Making faculty at universities more inclusive.


NEWS

CONTEXT

Much more needs to be done to improve faculty diversity on university campuses.

History of Quota

  • Parliament has sometimes had to resort to even constitutional amendments to overturn some court rulings that have the effect of protecting the interests of ‘general candidates.
  • The 77th constitutional amendment of 1995, which was recently extended to Kashmir, restored reservation in promotions as a nine-judge bench of the Supreme Court in Indra Sawhney (1992) while upholding Other Backward Classes reservation based on Mandal Commission recommendations had prohibited Scheduled Caste/Scheduled Tribe (SC/ST) reservation in promotions.

Instances of overturning Judgements

  • The 81st constitutional amendment was made to overturn the Supreme Court’s decision against the ‘carrying forward’ rule, which permitted the filling of unfilled reserved seats in subsequent years.
  • Similarly, the 85th constitutional amendment was passed in 2001 to restore consequential seniority to promotee SC/ST employees as a ‘catch-up’ rule introduced by the court in Ajit Singh (1999) was causing hardship to SC/ST employees.
  • Last week, the  government promulgated an ordinance to undo the Allahabad High Court’s judgment in Vivekanand Tiwari (2017) which had relied on a number of other High Courts and a few apex court judgments such as Suresh Chandra Verma (1990), Dina Nath Shukla (1997) and K. Govindappa (2009) that had made ‘department’ rather than ‘university’ as the unit of reservation in universities.

Vivekanand tiwari Judgement

  •  In the beginning, Justice has said, “It is not a mandate but liberty given to the state. It is an enabling provision.” Thus, according to him, the government may not provide for reservation.

Article 335

  • Article 335 categorically says that “claims” of SC/STs to posts in Centre and the States ‘shall’ be taken into consideration. 
  • As opposed to ‘may’ or ‘will’, the use of the word ‘shall’, in law, means mandatory.
  • Judge devoted several additional pages to make out a case for the re-examination of the reservation policy by the government though there were no pleadings on this issue. He asked it to examine whether reservation at all is needed in university teaching posts.

Whether university or department as a unit for reservation

  • With the ‘university’ as the unit, in over 40 Central universities we have huge under-representation of SCs and STs especially at the level of professor and associate professor. If ‘department’ was allowed to be taken as a unit, these numbers would have been far less.
  • the government did share with the Supreme Court the BHU’s example of the adverse effect of using ‘department’ as the unit.
  •  For example, there were 1,930 faculty posts on May 12, 2017. If the BHU were to implement reservation based on using ‘university’ as the unit of reservation, 289 posts would have had to be reserved for SCs, 143 for STs and 310 for OBCs.
  • Under the new formula of using ‘department’ as the unit, the number of reserved positions would go down to 119 for SCs, 29 for STs and 220 for OBCs.

Impact of department as a unit on representation from weaker sections

  • Implementation of the department-wise reservation policy would have had a disastrous effect on other universities as well.
  • A study of 20 Central universities by the Central government has shown that reserved posts will come down from 2,662 to 1,241 in a year.
  • Thus department-wise reservation was a sophisticated beginning of an end of reservation. If SC/ST candidates do not become professors, they cannot become vice-chancellors as only a professor with 10-year experience is eligible for this. In 2018, out of some 496 vice-chancellors of Central and State universities, there were just six SC, six ST and 48 OBC vice-chancellors.

Way Forward

  • The government deserves appreciation for the ordinance.
  •  But we need to do more to improve diversity on our campuses with more SCs, STs, OBCs, Muslims, persons with disabilities and sexual minorities being recruited as faculty as our campuses do not reflect social diversity despite the university being a unit for reservation.
  • Let the score on the diversity index be a major criterion in giving grants to universities.
Jan, 29, 2019

[op-ed snap] Capable even if disabled

Note4students

Mains Paper 2: Social Justice| Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

From UPSC perspective, the following things are important:

Prelims level: Nothing as such.

Mains level: The news-card analyses the recent ruling of the SC in V. Surendra Mohan v. Union of India, in a brief manner.


Context

  • Recently the Supreme Court of India has given a ruling in V. Surendra Mohan v. Union of India case which is regarded by the experts as one of the darkest in India’s disability rights movement.

Supreme Court’s Ruling

  • The Court had to rule on the legality of the Tamil Nadu government’s policy of reserving the post of civil judge only for people whose percentage of blindness does not exceed 40-50%, resulting in the exclusion of the applicant who was 70% blind.
  • It held that the government’s decision was rational and reasonable.
  • It ruled that a judicial officer has to possess a reasonable amount of sight and hearing to discharge her functions.
  • It accepted the claim that impaired vision makes it impossible to perform the functions required of judicial officers, such as assessing the demeanour of witnesses and reading and analysing evidence.
  • It also accepted that asking a blind judicial officer to perform such administrative functions as recording dying declarations and conducting inquiries can result in avoidable complications.

Issue

However, the judgement is being seen as problematic by the experts for four key reasons.

  1. Examples of success
  • The view that a totally blind person cannot thrive as a judge is belied by several examples of successful judges who are blind.
  • One is former South African Constitutional Court judge Zak Yacoob, who has repudiated the notion that one needs to be sighted to assess a witness’s demeanour as being nonsensical,
  • U.S. Court of Appeals DC Circuit judge David S. Tatel, who thinks that it is neither fair nor accurate to impose low expectations on what blind lawyers can do.
  • Yousaf Saleem who last year became Pakistan’s first blind civil judge.

2.  How can a blind person be reasonably expected to thrive as a judge without being excessively dependent and inefficient?

  • However, as the Supreme Court itself noted in 2017, “A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well.”

3. The Court’s unreasoned assertion is an outcome of their ignorance about the capabilities of the disabled.

  • However, ignorance simply cannot be an excuse.
  • It is simply unacceptable to condemn disabled legal professionals, possessing the intellectual wherewithal to be a judge, to the status of outcasts only because the judges delivering the judgement in this case appear simply not to have bothered to notice the competence of the millions of disabled people who inhabit this world.

4. Reasonable accommodations

  • As to obviating avoidable complications, the reasonable accommodations required by a blind judge may be considered irksome.
  • However, it bears noting that “there is a distinct exhortatory dimension to be recognised in deciding whether an adjustment to assist a disabled person to overcome the disadvantage that she or he has in comparison to an able-bodied person is reasonable.”
  • The constitutional promise of equality cannot be fully realised, if we lack the ability to even pay the price of making reasonable accommodations.

Conclusion

  • When the Supreme Court tells that blindness makes someone intrinsically incapable of becoming a judicial officer, when it declares thousands of blind people as incompetence, its declaration cuts to the core of their confidence about the fairness and robustness of our judicial system.
  • It is how we choose to respond to this institutional display of pure and simple discrimination dressed up as legal reasoning will be reflective of what kind of a society one hope to be.
Jan, 28, 2019

[op-ed snap] Whose quota is it anyway

Note4students

Mains Paper 2: Social Justice| Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

From UPSC perspective, the following things are important:

Prelims level: Basic knowledge of the Constitution (103rd Amendment) Act.

Mains level: The news-card analyses the eligibility criteria for reservation for EWS as provided by the Constitution (103rd Amendment) Act, in a brief manner.


Context

  • According to experts, the eligibility criteria for reservation for economically weaker sections will enable the well-off to corner benefits of the Constitution (103rd Amendment) Act.
  • The Act provides 10 per cent reservation in jobs and education to the economically weaker sections (EWS) in the general category.

Issue

  • Experts have held that the children of the poor from the upper castes — vegetable vendors, construction labourers, challenged individuals, self-employed or unemployed widows — deserve reservation as much as the children from Dalit households, who have enjoyed high economic and social status, say, for two generations.
  • Let us then reserve 10 per cent seats for the poorest 10 per cent of the households, not covered under reservation.

Criteria likely to be fixed for identifying the beneficiaries

  • The dearth of will and capacity to target the new quota to the actual poor is evident from the criteria that are likely to be fixed for identifying the potential beneficiaries.
  • Persons from households with annual earnings below Rs 8 lakh, possessing agricultural land below 5 acres, a plot less than 100 yards in a notified municipality or below 200 yards in the non-notified municipal area would be eligible for the reservation.
  • The new amendment also allows the states to set income cut-offs to decide who constitutes EWS.
  • They can even exceed the criteria set by the Centre.
  • It also allows the states to notify EWS “from time to time on the basis of family income and other indicators of economic disadvantage” even if they are “adequately represented” in government jobs.

Who will be the real beneficiary?

  • SCs, STs and OBCs account for 70 per cent of the population and are entitled to 49.5 per cent reservation in the government sector.
  • The eligibility issue thus pertains to the remaining 30 per cent or 39 crore people, who fall under the general category.
  • Calculations based on available data suggest that about 95 per cent of the people in the general category will be eligible under the new criteria.
  • It is not difficult to understand who would be the real beneficiaries of the rather generous eligibility criteria for determining economic deprivation.
  • It is very likely the middle class, those who work in the private sector where it is difficult to establish the income-level and the unscrupulous who can con the system through false declarations, would grab the benefit.
  • The children of street vendors and agricultural labourers have very little chance to benefit from the new quota.

Poor stands very little chance of benefiting from the new quota

  • Indeed, whenever anyone has shown the benevolence of defining poverty with a high cut-off point, the real motives has been to help the top 10 to 20 per cent among the eligible.
  • The poor, as defined by the Tendulkar or Rangarajan Committees, stand very little chance of benefiting from the new quota.
  • It is also hard to believe that Muslims would benefit from the quota, simply because they have a higher share among the poor.
  • Very few Muslims would be in the top 20 per cent among those eligible for the EWS quota.

Conclusion

  • The need of the hour is to rationalise the eligibility criteria for reservation for economically weaker sections so that the well-off do not corner the benefits of the poor.
Jan, 22, 2019

[op-ed snap] The ambiguity of reservations for the poor

Note4students

Mains Paper 2: Social Justice| Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

From UPSC perspective, the following things are important:

Prelims level: Basic knowledge of the 103rd Constitution Amendment Act.

Mains level: The news-card analyses the recently passed 103rd Constitution Amendment Act and the challenge in its effective implementation, in a brief manner.


Context

  • The 103rd Constitution Amendment Act introducing special measures and reservations for ‘economically weaker sections’ (EWS) has been perceived as being unconstitutional by some experts.
  • However, the strongest constitutional challenge might not be to the amendment itself but to the manner in which governments implement it.

Special measures provided by the 103rd Constitution Amendment Act

  • Article 15 stands amended enabling the state to take special measures (not limited to reservations) in favour of EWS generally with an explicit sub-article on admissions to educational institutions with maximum 10% reservations.
  • The amendment to Article 16 allows 10% reservations (and not special measures) for EWS in public employment and does so in a manner that is different from reservations for Scheduled Caste/Scheduled Tribes and Other Backward Classes.
  • The amendment leaves the definition of ‘economically weaker sections’ to be determined by the state on the basis of ‘family income’ and other economic indicators.
  • Also critical to this amendment is the exclusion of SC/STs, OBCs and other beneficiary groups under Articles 15(4), 15(5) and 16(4) as beneficiaries of the 10% EWS reservation.

Indra Sawhney Case

  • To start the constitutional examination of the recent amendment let us take the Supreme Court’s view on reservations based purely on economic criteria.
  • Eight of the nine judges in Indra Sawhney (November 1992) held that the Narasimha Rao government’s executive order (and not a constitutional amendment) providing for 10% reservations based purely on economic criteria was unconstitutional.
  • Their reasons included the position that income/property holdings cannot be the basis for exclusion from government jobs, and that the Constitution was primarily concerned with addressing social backwardness.

103rdAmendment will be tested against the Basic structure doctrine

  • However, the decision in Indra Sawhney involved testing an executive order against existing constitutional provisions.
  • In the current situation, we are concerned with a constitutional amendment brought into force using the constituent power of Parliament.
  • The fact that we are not concerned with legislative or executive power means that the amendment will be tested against the ‘basic structure’ and not the constitutional provisions existing before the amendment.
  • The pointed question is whether measures based purely on economic criteria violate the ‘basic structure’ of the Constitution?
  • Experts believe, it is a sufficient answer to say that ‘backwardness’ in the Constitution can only mean ‘social and educational backwardness’.
  • It is difficult to see an argument that measures purely on economic criteria are per se violative of the ‘basic structure’.
  • EWS reservations might not able to alleviate poverty but that is not really the nature of ‘basic structure’ enquiry.
  • Economic criteria (if seen as poverty) forms the basis for differential treatment by the state in many ways and it would be a stretch to suddenly see it as constitutionally suspect when it comes to ‘special measures’ and reservations in education and public employment.
  • Poverty inflicts serious disadvantages and the prerogative of the state to use special measures/ reservations as one of the means to address it (however misplaced it might be as a policy) is unlikely to fall foul of the ‘basic structure’ doctrine.

Challenges to the amendment

  • A challenge to the amendment may lie in the context of Article 16 by virtue of shifting the manner in which reservations can be provided in public employment.
  • Under Article 16(4), reservations for backward classes (SC/STs, OBCs) are dependent on beneficiary groups not being ‘adequately represented’ but that has been omitted in the newly inserted Article 16(6) for EWS.
  • The amendment through Article 16(6) ends up making it easier for the state to provide reservations in public employment for EWS than the requirements to provide reservations for ‘backward classes’ under Article 16(4).
  • Supreme Court might have its own views on this. On the one hand, it is confronted with the reality that ‘backward classes’ like SC/STs and OBCs are disadvantaged along multiple axes.
  • On the other, it is now far more difficult for the state to provide reservations to these groups compared to the EWS.
  • The response might well be that ‘representation’ is not the aim of EWS reservation and questions of ‘adequacy’ are relevant only in the context of representation claims like those of the backward classes under Article 16(4).

Breaching the 50% ceiling

  • In many of the responses to the amendment, breaching the 50% ceiling on reservations has been cited as its greatest weakness.
  • It is hard to see the merit of that argument because the amendment by itself does not push the reservations beyond 50%.
  • While it might be a ground to challenge the subsequent legislative/executive actions, the amendment itself is secure from this challenge.
  • But even beyond this narrow technical response, the 50% ceiling argument is far from clear.
  • In Indra Sawhney, the majority of judges held that the 50% ceiling must be the general rule and a higher proportion may be possible in ‘extraordinary situations’.
  • Fundamentally this argument stems from an unresolved normative tension in Indra Sawhney.

Reservations are not an ‘exception’ but a ‘facet’ of equality

  • While committing to the constitutional position that reservations are not an ‘exception’ but a ‘facet’ of equality, the majority in Indra Sawhney also invokes the idea of balancing the equality of opportunity of backward classes ‘against’ the right to equality of everyone else.
  • When governments implement the EWS reservations and push quotas beyond 50%, the Supreme Court will be forced to confront this normative tension.
  • If reservations further equality, what then are the justifications to limit it to 50% when the identified beneficiaries constitute significantly more than 50%?
  • The answer to that question might lie in Indra Sawhney’s position that the constitutional imagination is not one of ‘proportional representation’ but one of ‘adequate representation’.
  • However, as discussed above, if abandoning the ‘adequacy’ requirement per se is upheld for EWS reservations, the basis for a 50% ceiling becomes unclear.

Way Forward

Hardest test will be its implementation

  • While the constitutional amendment by itself might survive the ‘basic structure’ test, the hardest test for governments will be the manner in which they give effect to the amendment.
  • The definition of ‘economically weaker sections’ will be a major hurdle because the political temptation will be to go as broad as possible and include large sections of citizens.
  • But broader the definition, greater will be the constitutional risk. For example, if beneficiaries are defined as all those with family income of less than ₹8 lakh per annum, it must necessarily fail constitutional scrutiny.
  • To justify that an individual ‘below poverty line’ and another with a family income of ₹8 lakh per annum belong to the same group for purposes of affirmative action will involve constitutional jugglery at an unprecedented level.
Jan, 12, 2019

Explained: The Amendment procedure

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights and their interpretation, Amendment Procedures

Mains level: EWS Quota, Amendment Procedures


News

  • During the Lok Sabha debate on the Constitution amendment Bill to provide a 10% quota in jobs and education for the “economically weaker sections”, it was argued that this Bill has to be passed by a two-thirds majority, and then, 50 per cent of the states have to approve it.

Argument for the Procedure

  1. The counter argument said that to amend Part III (FRs) of Article 368 of the Constitution (which describes the “Power of Parliament to amend the Constitution and procedure there for”), which concerns the FRs, there is no need to go to the state legislatures.
  2. Even the amendment that added Article 15(5) to the Constitution had been approved only by the two Houses of Parliament.

How and why do procedures for the passage of Constitution amendment Bills vary?

Amendment of Constitution

  1. Part XX of the Constitution deals with its amendment.
  2. Under Article 368(2), Parliament can amend the Constitution by passing a Bill in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.
  3. Thereafter, the Bill shall be presented to the President who shall give his assent… and thereupon the Constitution shall stand amended.
  4. Parliament cannot amend those provisions which form the basic structure of the Constitution according to the Supreme Court ruling in the landmark 1973 Kesavananda Bharati case.
  5. FRs and DPSPs are the two most important provisions that can be amended by the special majority.
  6. All provisions that do not require ratification by states, and those that come directly under the purview of Article 368, have to be amended by the special majority.

Various Procedures for Amendments

[I] Simple Majority

A large number of provisions contained in the constitution are open to change by a simple majority. These may be divided into two classes:

1.Where the text of the constitution is not altered but the law is changed

  • Article 11 confers on the Parliament power to enact a law regarding citizenship.
  • An Act made in pursuance of that power will change the law relating to citizenship without altering the text of Article 5 to 10.
  • Article 124 still refers to the Supreme Court as consisting of the Chief justice and 7 judges.
  • But in exercise of its power the Parliament has increased the strength of the judges from 7 to 25.

2.Where the text of the constitution is changed

  • Formation of new state.
  • Creation or abolition of legislative council
  • Creation of council of ministers for Union territories
  • Extending the period of 15 years fixed for the use of English in Article 343
  • Defining Parliamentary privileges
  • Salaries and allowances of President, Vice-President, Judges, etc.

[II] Special Majority

  1. Except those provisions which are amendable by an ordinary majority, the rest of the provisions require a special majority for amendment.
  2. The Amendment Bill must be passed by a majority of two-thirds of the members of each House present and voting and such majority must exceed 50% of the total membership of the House.

[III]  Special Majority and Ratification by half of the States

  1. Those provisions which relate to the federal structure of the constitution require special majority in Parliament as well as ratification by at least half of the state legislatures.
  2. This procedure is required in the following provisions:
  • Manner of election of President
  • Executive power of the Union and the State
  • The Supreme Court and the High Courts
  • Distribution of legislative power between the Union and the States
  • Representation of states in Parliament
  • Article 368 itself

Back2Baiscs

Article 15 of the Indian Constitution

  1. Article 15 guarantees the FR of prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
  2. Articles 15(1) and (2) broadly state that the “State” shall not discriminate “any citizen” on grounds only of religion, race, caste, sex, place of birth or any of them.
  3. It provides that there shall be no restriction on any person to access and use the public places and places of public resort maintained wholly or partly by the state or dedicated to the use of the general public.
  4. Article 15(3) onward, the Constitution lays down provisions relating to protective discrimination — the policy of granting special privileges to underprivileged sections.
  5. Articles 15(3) and 15(4) are the foundation for reservations in education and employment in the country.
  6. Article 15(3) empowers the state to make special provisions for women and children.
  7. Article 15(4) empowers the state to make special provisions for advancement of socially and educationally backwards, and SC/STs.
  8. Article 15(5) was introduced by The Constitution (Ninety-Third Amendment) Act, 2005.
  9. It is an enabling clause that empowers the state to make such provision for the advancement of SC, ST and Socially and Educationally Backward Classes (SEBC) of citizens in relation to a specific subject.
Jan, 11, 2019

[op-ed snap] A solution in search of a problem: on 10% reservations

Note4students

Mains Paper 2: Governance| Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

From UPSC perspective, the following things are important:

Prelims level: Basic Structure, Constitutional Amendment (Art 368), Art 15, 16.

Mains level: The newscard discusses issues and challenges wrt 10% quota to “the economically weaker sections in the general category, in a brief manner.


Context

  • The bill is designed to amend the Constitution to extend 10% reservation in direct recruitment in  government jobs and for admission in higher educational institutions to “economically weaker” sections among all castes and communities, Christians and Muslims included, who are not eligible under the existing quotas.

Background

  • India’s reservation system is clearly in disarray. However, it is unlikely that the recently passed Constitution (124th Amendment) Bill, 2019, creating a 10% quota for the economically weaker sections(EWS), will serve as anything more than a band-aid.
  • Given the deep inequalities prevalent in access to education and jobs based on caste and socio-economic status, affirmative action (or positive discrimination) makes a lot of sense.
  • However, the system that was put in place during the early years of the Republic deserves serious re-evaluation in an era when technology has paved the way for deploying a better equipped arsenal.

Potential implications of the EWS quota Bill

  1. Excluding no one
  • One of the criteria — the income threshold of 8 lakh per annum — has been mentioned.
  • The National Sample Survey (NSS) of 2011-12 shows that the annual per capita expenditure for 99% of households falls under this threshold, even when we take inflation into account.
  • Similarly, as per the India Human Development Survey (IHDS), the annual household incomes of 98% of households are less than 8 lakh.
  • Even if we apply all the other criteria for exclusion (e.g. amount of land owned and size of home), the Bill would still cover over 95% of the households.

 

  1. Cost may be higher than one anticipates
  • First, general category jobs are open to everyone, including Scheduled Caste (SC), Scheduled Tribe (ST) and OBC individuals. Thus, by removing 10% jobs from the “open” category, it reduces the opportunities for currently reserved groups. Hence, this is by no means a win-win situation.
  • This may be particularly problematic for OBCs since OBC reservation is limited to 27% of the seats whereas the OBC population is at least 40% of the population, possibly more. Thus, this move is almost certain to result in calls for greater OBC reservation, particularly if a constitutional amendment to increase the proportion of reserved seats from 50% to 60% is already being adopted.
  • Actual implementation of the EWS quota could be challenging. Few non-SC/ST/OBC individuals have a caste certificate. A large number of SC/ST/OBC households report difficulties in obtaining these certificates. How would an individual practically lay claim to this status?
  • In an era when skill demands are rapidly outpacing supply of candidates in specialised fields, the EWS quota increases the constraints. For instance, If a university advertises for an associate professor for quantum physics under the EWS quota and the only suitable candidate happens to be from an OBC category, she could not be hired. These challenges occur for all positions under specifically reserved categories.
  • The greatest cost of this amendment lies in the foregone opportunity to develop an enhanced and more effective reservation policy so that we can genuinely see an end to the entrenched inequalities in Indian society in the medium term.

Alternative strategies

  1. One strategy may be to try and spread the benefits of reservations as widely as possible within the existing framework and ensure that individuals use their reserved category status only once in their lifetime.
  • This would require that anyone using reservations to obtain a benefit such as college admission must register his/her Aadhaar number and she would be ineligible to use reservations for another benefit (e.g. a job) in the future.
  • This would require no changes to the basic framework but spread the benefits more broadly within the reserved category allowing a larger number of families to seek upward mobility.
  1. A second strategy might be to recognise that future economic growth in India is going to come from the private sector and entrepreneurship.
  • In order to ensure that all Indians, regardless of caste, class and religion, are able to partake in economic growth, we must focus on basic skills. We have focused on admission to prestigious colleges and government jobs, but little attention is directed to social inequality in the quality of elementary schooling.
  • The IHDS shows that among children aged 8-11, 68% of the forward caste children can read at Class 1 level while the proportion is far lower for OBCs (56%), SCs (45%) and STs (40%).
  • This suggests that we need to focus on reducing inequalities where they first emerge, within primary schools.
Jan, 08, 2019

Cabinet approves 10% quota for EWS in general category

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of the vulnerable sections

From the UPSC perspective, the following things are important:

Prelims level: Particulars of the Bill, Various judgments mentioned

Mains level: Viability of providing Reservation to economically weaker sections and legal issues surrounding


News

  • The Union Cabinet has given its nod for a Constitutional amendment Bill providing 10 percent more reservation for economically weaker sections in direct recruitment (in Government jobs) and for admission in higher educational institutions.

Proposed EWS Quota

  1. The proposed amendment Bill will define Economically Weaker Section (EWS) as:
  • One having annual income below Rs 8 lakh;
  • Agriculture land below 5 acres;
  • Residential house below 1,000 sq.ft;
  • Residential plot below 100 yards in notified municipality and residential plot below 200 yards in non-notified municipality area.
  1. The income includes agricultural income; profession etc.

Legal Test of the EWS Quota

(A) Economic Basis

  1. A Constitution Bench of the Supreme Court in the Indira Sawhney Case (1992) specifically ruled whether backward classes can be identified only and exclusively with reference to the economic criterion.
  2. It categorically held that a backward class cannot be determined only and exclusively with reference to economic criterion.
  3. It may be a consideration or basis along with or in addition to social backwardness, but it can never be the sole criterion.

(B) Quota Limit

  1. The judgment declared 50% quota as the rule unless extraordinary situations inherent in the great diversity of this country and the people.
  2. If the government proposes to bring a constitutional amendment to include the 10% quota for “unreserved economically weaker sections, the 11-judge Kesavananda Bharati judgment may stand in the way.
  3. The judgment held that constitutional amendments which offended the basic structure of the Constitution would be ultra vires.
  4. Neither Parliament nor legislatures could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14.

Exceeding Quota Limit: Sacrificing the Merit

  1. The government proposes to bring the 10% over and above the 49% quota — 7% for SCs, 15% for STs and 27% for Socially and Educationally Backward Classes, including widows and orphans of any caste, which is permitted.
  2. But a total 59% (49%+10%) quota would leave other candidates with just 41% government jobs or seats.
  3. This may amount to “sacrifice of merit” and violate Article 14.

Learning from States

  1. This proposed Bill finds an echo in an ordinance promulgated in Gujarat in 2016 which provided 10% quota to upper castes there.
  2. All the arguments here are based on the 104-page judgment of the Gujarat High Court in the DKVerma versus State of Gujarat, which quashed the ordinance in August 2016.

Reasons: Upholding DPSP

  1. Gujarat had justified the ordinance by referring to how Article 46 of the Constitution, which deals with the Directive Principles of the State Policy, required the State to promote weaker sections.
  2. It had categorised the 10% quota as a ‘reasonable classification’ under Article 14 and not ‘reservation’.
  3. It said the 50% ceiling limit in the Indira Sawhney judgment applied only to SC/ST and SEBC.
  4. The court observed that the “unreserved category itself is a class” and economic criteria was too fluctuating a basis for providing quota.
Dec, 19, 2018

[op-ed snap] Review and revise

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From the UPSC perspective, the following things are important:

Prelims level: Transgender rights bill 2018, Private members bill

Mains level: Need of protecting and uplifting transgender community


Context

Transgender rights bill 2018

  1. A Supreme Court judgment in 2014 laid out, for the first time, a bill of rights for the country’s much-exploited transgender community
  2. Four years on, despite misgivings of the community, the Lok Sabha has rushed through a bill that imperils many of the gains of the Nalsa judgment

Flaws in the bill

  1. The trans/queer movement is known for its radical insistence that gender is not a one-time fixed membership, but a flowing, subjective and personal experience
  2. In this reimagination, an individual’s freedom to define herself as male or female or neither is entirely hers — with no quarter given to social or parental vetoes
  3. This freedom is enshrined at the heart of the Nalsa judgment — and completely missing from the Transgender Persons (Protection of Rights) Bill, 2016
  4. Instead, the bill envisions a district screening committee which will be invested the power to certify people as trans or not
  5. A person who wishes to transition from one gender identity to another will be certified as male/female only after a gender reassignment surgery — in effect, turning an issue of personal identity into a medical procedure, and making vast swathes of marginalised persons dependent on the whims of an often hostile bureaucracy
  6. There is a provision that they should either live with their natal “family” — defined as blood or adoptive relations — or sent to rehabilitation centres, without factoring in the extent to which discrimination begins at home
  7. It also ignores the fact that hijra communities have for long sheltered young trans-people from the violence and coercion of family
  8. The bill is also silent on the issue of reserving jobs or educational opportunities for trans-people, or ways to punish the prevalent social and economic discrimination that impoverishes them

Taking a cue from the model law

  1. It is not as if the government had no model to follow while drawing up this bill
  2. A private member’s bill, moved by DMK’s Thiruchi Siva, in 2015 was passed by the Rajya Sabha in 2015
  3. Its progressive provisions on reservation, education and employment, its understanding of gender self-determination, are a measure of what the newly amended bill could have become

Way forward

  1. It is hoped that as the bill moves to the Rajya Sabha, these fundamental errors are removed to allow it to become a piece of legislation that is an ally for the transgender community, rather than one more element in their exploitation
Nov, 24, 2018

OBC sub-categorization panel gets 4th extension

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

From UPSC perspective, the following things are important:

Prelims level: Article 340, Mandal Commission, Indra Sawhney Case

Mains level:  Storm over reservations demand in India.


News

  • The panel constituted by the Union government to look into the sub-categorization of OBCs has been given another extension by the Cabinet till May 31, 2019.

Background

  1. The Supreme Court in Indra Sawhney and others vs. Union of India case (1992) had observed that there is no constitutional or legal bar on states for categorizing OBCs as backward or more backward.
  2. It had also observed that it is not impermissible in law if state chooses to do sub-categorization.
  3. So far, 9 states/UTs viz. Karnataka, Haryana, Andhra Pradesh, Jharkhand, Puducherry, Telangana, West Bengal, Bihar, Maharashtra and Tamil Nadu have carried out sub-categorization of OBCs.
  4. However there was no sub categorization in central list of OBCs so far.

Panel for Sub-categorization of OBCs

  1. The panel under G. Rohini was constituted in October 2017 and was supposed to file its report within three months.
  2. It is mandated to divide 5,000-odd castes in the central OBC list into sub-categories for more equitable distribution of opportunities in central government jobs and educational institutions.
  3. The commission has been established under Article 340 of Constitution under which Mandal commission had recommended 27% reservation for socially and educationally backward classes, was appointed.

Task of the Panel

  1. The commission will examine extent of inequitable distribution of benefits of reservation among castes included in broad category of OBCs, especially with reference to OBCs included in the Central list.
  2. It will also take up exercise of identifying respective castes/sub-castes/communities synonyms in Central List of OBCs and classify them into their respective sub-categories.
  3. It will work out mechanism, norms, criteria and parameters, in scientific approach, for sub-categorization within such OBCs.
Nov, 19, 2018

[pib] National Integration Week

Note4students

Mains Paper 2: Indian Society| Social empowerment, communalism, regionalism & secularism

From UPSC perspective, the following things are important:

Prelims level: National Integration Week

Mains level:  Govt initiatives promoting Communal Harmony in India


News

  • With a view to foster and reinforce the spirit of Communal Harmony, National Integration and pride in vibrant, composite culture and nationhood, the “Qaumi Ekta Week” is observed all over the country.

National Integration Week

  1. The observation of the week is aimed to highlight the inherent strength and resilience of our nation to withstand actual and potential threats to the secular fabric of our country.
  2. This occasion provides an opportunity to reaffirm age old traditions and faith in the values of tolerance, co-existence and brotherhood in a multi-cultural and multi-religious society.
  3. The week long programmes to be observed during Qaumi Ekta Week will be as under:
  • November 19: National Integration Day- To emphasize the themes of secularism, anti-communalism and non-violence.
  • November 20: Welfare of Minorities Day- In riot prone towns, special fraternal processions are taken out.
  • November 21: Linguistic Harmony Day- Programmes like Special literary functions and Kavi Sammelan.
  • November 22: Weaker Sections Day- Highlighting various Govt Schemes which help SCs/STs with particular emphasis on the distribution of surplus land to landless labourers.
  • November 23: Cultural Unity Day- Cultural functions to showcase the Indian tradition of unity in diversity
  • November 24: Women’s Day
  • November 25: Conservation Day- To emphasise the growing need for awareness and action to conserve the environment.

About National Foundation for Communal Harmony (NFCH)

  1. The NFCH is an autonomous organisation with the Ministry of Home Affairs.
  2. It organizes Communal Harmony Campaign coinciding with the Qaumi Ekta Week and observes the Communal Harmony Flag Day on 25th
  3. It promotes Communal Harmony and strengthens National Integration.
  4. It also provides financial assistance for relief and rehabilitation of children rendered orphan or destitute in communal, caste, ethnic or terrorist violence.
Nov, 06, 2018

[op-ed snap] No respite from poverty for Muslims

Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre & States & the performance of these schemes

From the UPSC perspective, the following things are important:

Prelims level: National Sample Survey Office (NSSO), labour force participation rate (LFPR), worker population ratio (WPR)

Mains level: Need of Muslim empowerment in terms of education and employment


Context

Muslims still face poverty

  1. The National Sample Survey Office (NSSO) labour force survey reports that the economic condition of Muslims does not show any signs of improvement despite India being the fastest-growing large economy
  2. An analysis of the data on economic and educational indicators for various religious groups reveals that Muslims are facing a vicious circle of poverty

Education level amongst Muslims

  1. The NSSO’s 68th round (2011-12) provides estimates of education levels and job market indicators across major religious communities in India
  2. The educational attainment of Muslims is the least among all these communities
  3. In urban areas, the number of male Muslim postgraduates is as low as 15 per 1,000
  4. This number is about four times lower than that of other communities, including Hindus, Christians and Sikhs
  5. The situation is similar for Muslim women
  6. The number of male graduates among Muslims is 71 per 1,000, less than even half the number of graduates (per 1,000) in other communities
  7. Poor achievement at higher levels of education is partly a reflection of similarly low levels of school education or of illiteracy

Reasons for low education rate

  1. The lowest attendance rates and educational attainment amongst Muslims, especially in higher education, can be explained by their income level and higher costs for post-secondary education
  2. According to the NSSO survey, the average per capita consumption expenditure (used as an indicator of income) among Muslims is just ₹32.66 per day, which is the least among all religious groups
  3. As per the 71st NSSO survey on education (2014), the average course fee for college degrees in technical courses in government and private unaided institutions was ₹25,783 and ₹64,442, respectively
  4. That is too high for Muslims to afford, given their per capita income
  5. Although children up to age 14 have a right to free and compulsory education, the average course fee per student for upper primary education is still ₹508 for the academic session
  6. The higher burden of the cost of education among Muslims, relative to their incomes, could be one of the factors responsible for their lowest attendance rates

What does a low level of education lead to?

  1. The high level of illiteracy among Muslims and the low levels of general education ensure that they are trapped in a vicious circle of poverty
  2. The lack of higher education is adversely affecting their job indicators
  3. The dynamics of labour markets are largely a function of the degrees of knowledge and skills
  4. For example, the labour force participation rate (LFPR), defined as the number of persons either employed or seeking jobs, is significantly linked to the desire for work, which in turn is dependent upon educational attainment
  5. Similarly, the quality of employment is strongly linked to levels of education and skills

Data shows that Muslims have fewer jobs

  1. The signs of Indian Muslims being caught in a vicious circle of poverty are visible in terms of their low consumption expenditure and poor job market indicators, including LFPR, employment status, and worker population ratio
  2. The NSSO data show that LFPR among Muslims is 342 and 337 (per 1,000) in urban and rural areas, respectively, the least among all the religious communities
  3. This implies that only 342 persons per 1,000 persons of working age among Muslims in urban areas are employed or available for work
  4. Given that Muslims live predominantly in urban areas (unlike other poorer communities like SCs/STs), where work outside the home could be available, this low LFPR is likely explained by their low levels of education
  5. Likewise, the worker population ratio (WPR), defined as the number of persons employed per 1,000 persons, is lowest among Muslims, both in rural and urban areas

Steps that can be taken

  1. The Central and State governments could take concerted steps to help Indian Muslims escape this vicious circle of poverty
  2. One way to improve their situation is to provide a special incentive and subsidy system for higher education
  3. That will ensure that schoolgoing students continue to higher levels of schooling and higher education
  4. Similarly, students who don’t wish to continue in general academic education must have access to vocational education from Class 9 onwards
Oct, 04, 2018

[op-ed snap] The creamy layer of social justice

Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Article 355

Mains level: Jarnail Singh v. Lachhmi Narain Gupta verdict and its effect on SC/ST reservations


Context

Recent verdict on the reservation in promotions

  1. The Supreme court in its recent verdict in Jarnail Singh v. Lachhmi Narain Gupta held that the government need not collect quantifiable data to demonstrate backwardness of public employees belonging to the Scheduled Castes and the Scheduled Tribes (SC/STs) to provide reservations for them in promotions
  2. The core issue here was whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through reservations
  3. The court set aside the requirement to collect quantifiable data that was stipulated by its 2006 verdict in M. Nagaraj v. Union of India
  4. It ignored the reasoning of a nine-judge bench in Indra Sawhney (1992) that any discussion on creamy layer “has no relevance” in the context of SC/STs

What’s the issue?

  1. The court merely removed the government’s responsibility to collect quantifiable data on backwardness but reasoned that the creamy layer test would be consistent with the equality principle
  2. The Supreme Court relies on using arguments pertinent only in the case of OBCs to decide litigation on SC/ST quotas

Why reservations for SC/ST?

  1. A close reading of relevant constitutional provisions and the verdict in Indra Sawhney make it clear that the SC/STs are given job reservations not because they are poor but because they are excluded
  2. The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure

Need of creamy layer provision

  1. The creamy layer among SC/ST employees helps fulfil the second part of Article 335 that requires maintaining the “efficiency of administration”
  2. The presence of the creamy layer works as a safety valve
  3. The rationale behind the demand to prohibit elite or privileged sections from accessing quota posts is that these sections are as well qualified as general candidates, if not more, and numerous enough to warrant their removal

Right to opt out

  1. The court could have addressed an often ignored aspect of the matter — the right of the creamy layer among the community to opt out of reservations
  2. At present, an SC/ST candidate does not have the right to reject reservations
  3. She is merely required to state whether she belongs to the SC or the ST category and a response in affirmation automatically puts her in the queue for reservations
  4. It is also a punishable offence to withhold one’s caste status while seeking government employment
  5. A simple administrative decision to allow SC/ST candidates to compete in the general category would have helped thousands to leave the space for the less privileged among them

Expectations from judiciary

  1. As citizens, we expect two certainties from any verdict on public policy by a constitution bench of the Supreme Court
  2. One, it must hold whether the underlying principle(s) is/are consistent with the Constitution of India
  3. Two, such a verdict must end governance paralysis

Way Forward

  1. India needs changes in matters related to caste as well as the constitutional provisions aimed at getting rid of the rough edges of caste discrimination
  2. The Indian state must be proud that its policies have created a creamy layer among the most disadvantaged that gel well with those in the general category
  3. It is recognition of the fact that socio-economic progress moves by generations
Sep, 28, 2018

[op-ed snap] Removing biases

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Provisions related to reservation, Poona pact, Mac Donald award

Mains level: Jarnail Singh v. Lachhmi Narain Gupta & M. Nagaraj v. Union of India verdicts and their impact on reservation system


Context

SC verdict on the reservation in promotions

  1. The issue for debate before a bench of five judges of the Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta was whether M. Nagaraj v. Union of India (Nagaraj) required reconsideration
  2. Nagaraj verdict had held that before the Scheduled Caste and Scheduled Tribe candidates can be promoted, the states had to prove by “quantifiable data” that they were indeed “backward”

Why the issue?

  1. There was no definition of the expression “backward” and whether it is social backwardness, educational backwardness, economic backwardness or untouchability of which “quantifiable data” was to be collected
  2. As a result, all promotions made post-Nagraj were struck down on the ground that there was no quantifiable data

Definition of SC & Backward caste

  1. The expression, “Scheduled Castes” simply refers to castes added to a Schedule in the Constitution
  2. The expression “backward class” in Article 16(4) of the Constitution refers to these “untouchable castes” known under British rule as “depressed classes”, and those we have come to be known as “other backward classes”

Flaws in Nagaraj verdict

  1. Article 16 (4-A) of the Constitution allows reservation in promotion for the untouchable castes and tribes only and not for “other backward classes”
  2. The marker of the identity of Scheduled Castes is the historic disadvantage of the untouchable
  3. Therefore the question of proving backwardness by quantifiable data does not arise
  4. At the heart of the problem is the inability of the Supreme Court to understand the very meaning of “equality” and the purpose of reservations

History of reservations in India

  1. Following the Poona Pact, B R Ambedkar gave up the demand of the Dalit community for separate electoral colleges
  2. Instead, it was agreed that the castes described by the British as “depressed classes” would be given reservation in employment with joint electorates (in the provincial and central legislatures) for a larger number of seats than envisaged by the Mac Donald award
  3. There was thus, a national compact that the “depressed classes” should be represented in appointments in public services as well as in local bodies, in other words, reservation in public services and local bodies
  4. The said ‘depressed classes’ came to be known as “Scheduled Castes” and “Scheduled Tribes”

Need for reservations

  1. There should be an equitable distribution of job opportunities among different sections of the society
  2. Everyone should have a stake in democratic governance, whether they determine their identities by gender or by caste or by a historic disadvantage
  3. A balance needs to be struck between the allotment of posts in the public sector between the claims of the upper castes and those of the untouchable castes and tribes
  4. This balance can be achieved by reserving the appropriate number of posts for the Scheduled Castes and Scheduled Tribes and the rest of the candidates
  5. Reservations are intended to achieve equality in the matter of representation in public employment and, consequentially, in state power

Exclusion of creamy layer also questionable

  1. Creamy layer is an expression not found in the Constitution
  2. Given that the identification of beneficiaries is not based on economic criteria, but on caste markers, how can there be such an exclusion
  3. If indeed economic cut off is to be put ostensibly to advance the cause of the surely backward, then why should reservation not be given to the people of below poverty line (BPL) of all castes, including the upper castes

Way Forward

  1. The Court has been myopic in suggesting that the more backward among the backward must only get promotion in a country in which people die while manual scavenging and all the public sector positions of sweepers are occupied by Scheduled Castes
  2. An obsessive concern of the Supreme Court while denying reservation in different forms has been “efficiency in administration”
  3. If a department is underperforming, how does one say that it is on account of the Scheduled Caste and Scheduled Tribe community
  4. The judgment in Jarnail Singh must be welcomed as paving the way for promotions for Scheduled Castes and Scheduled Tribes in public employment thereby furthering and deepening the Constitution’s equality
Sep, 15, 2018

National Scholarship Portal mobile app launched by Union Minority Affairs Ministry

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections.

From UPSC perspective, the following things are important:

Prelims level: Particulars of the app

Mains level: Measures taken for the welfare of minorities.


News

Context

  1. Union Minority Affairs Minister launched the country’s first National Scholarship Portal mobile app that would make the government welfare schemes more accessible to needy students.
  2. This app will ensure a smooth, accessible and hassle-free scholarship system for students from poor and weaker sections.

National Scholarship Portal

  1. The students will get all the information regarding various scholarships on this mobile app.
  2. They will be able to apply for scholarships through the app.
  3. The students can also upload necessary documents on this app; can check the status of their application and scholarship disbursement status etc.
  4. All the scholarships are being given directly into the bank accounts of the needy students under Direct Benefit Transfer (DBT) mode through the National Scholarship Portal.
  5. It has ensured that there is no scope for duplication and leakage.

Success of such Scholarship

  1. During the last four years, about three crore students belonging to the poor and weaker sections of minorities have benefited from various scholarship programmes.
  2. The beneficiaries include about 1.63 crore girls.
  3. The school dropout rate among Muslim girls, which was earlier more than 70 per cent, has now been reduced to about 35-40 per cent due to awareness and educational empowerment programmes.
Sep, 06, 2018

[op-ed snap] What’s in a name?: on the use of the term 'Dalit'

Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: National Commission for Scheduled Castes, Article 341

Mains level: Recent issues related to Dalit identity and need to protect the vulnerable communities


Context

Directive to abandon the use of the term ‘Dalit’

  1. Union Information and Broadcasting Ministry has issued an advisory to the media saying they “may” refrain from using the term ‘Dalit’ while referring to members of Scheduled Castes
  2. This is unnecessary, intrusive and issued with little application of the mind

Why such a directive?

  1. This has been done in compliance with a direction from the Nagpur Bench of the Bombay High Court
  2. A reading of the court’s order shows that it only wanted the Centre “to consider the question of issuing such direction to the media and take a suitable decision upon it”
  3. The court gave such suggestion after it was brought to its notice that the Union Ministry of Social Justice and Empowerment had issued a directive to use only the term ‘Scheduled Castes’ in all official matters
  4. The court noted that since media institutions were not a party before it, the I&B Ministry could consider the question of issuing a similar direction to the media

Debate against the word ‘Dalit’

  1. A decade ago, the National Commission for Scheduled Castes disfavoured the use of ‘Dalit’, which it felt was unconstitutional
  2. This is because belonging to a ‘Scheduled Caste’ is a legal status conferred on members of castes named in a list notified by the President under Article 341 of the Constitution
  3. Therefore, ‘Scheduled Caste’ is the appropriate way to refer to this class of people in official communications and documents

Evolution of the term

  1. The term has evolved over a period of time and has come to symbolise different things in different contexts — self-respect, assertion, solidarity and opposition to caste oppression
  2. In the past, Dalits were referred to as ‘untouchables’, but the official term during British rule was ‘depressed classes’
  3. Mahatma Gandhi sought to remove the stigma of ‘pollution’ by using the term ‘Harijans’, or ‘children of God’
  4. The community rejected this appellation as patronising and sanctimonious
  5. The evolution of the word Dalit or Pad-Dalit was strongly emphasised by B R Ambedkar in his Marathi writings during his years of active journalism and public speaking from 1920 onwards
  6. He fashioned the term for the Depressed Classes to unionise the political categories that are subsumed under it
  7. Dalit is a political identity that emerged in the 1970s in connection with the rise of Dalit literature in Marathi and the Dalit Panthers, a militant movement based out of Maharashtra’s urban centres

Importance of the term

  1. “Dalit” is primarily an anti-caste, anti-Brahminical, anti-capitalistic, anti-oppression, anti-superstition rebellion moulded into the totemic traditions of Dalit emancipation drawn from the experiences of their ancestors’ quest to life
  2. ‘Dalit’ literally means ‘downtrodden’ or ‘broken’ reflecting the struggle of a community to reassert its identity and lay claim to the rights that were denied to them for centuries
  3. The idea of “humanism, freedom, rebellion, and equality” is strongly reinforced in the popularisation of the term

Way Forward

  1. It is inexplicable to oppose the use of the term ‘Dalit’ in the media and in non-official contexts — a nomenclature chosen and used by the community itself
  2. We must recognise that ‘Dalit’ is an expression of self-empowerment
  3. The advisory must be withdrawn as there is no reason to tell the media how to do their job, even if it is couched in the form of gratuitous advice
Sep, 03, 2018

[op-ed snap] Court to the rescue

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Measures that can be taken to deal with hate crimes in India


Context

Rising hate crimes in India & lessons from the US

  1. As India grapples with hate crimes, the approach of the US judicial system is an eye opener
  2. The US Congress passed the Hate Crimes Prevention Act in 2009
  3. The act provides punishment for a person who willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, colour, religion, or national origin of any person
  4. The offence includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill

Supreme court’s view on hate crimes

  1. India’s Supreme Court, in its judgment of July 17, provides a refreshing approach towards dealing with hate crimes
  2. No citizen can assault the human dignity of another, for such an action would comatose the majesty of the law
  3. In a civilised society, it is the fear of the law that prevents crimes
  4. When the preventive measures face failure, the crime takes place and then there have to be remedial and punitive measures
  5. The Court, therefore, gave preventive, remedial and punitive measures
  6. One of its directions is: “To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC”

Other measures that can be taken by SC

  1. Direct concerned governments to file appeals forthwith to the superior courts against judgments of acquittals and/or granting of bail in all such cases
  2. Hold and declare that bail ought not to be granted in such cases except in the rarest of rare cases and that too for the cogent reasons provided in the order
  3. Direct disciplinary action against concerned police and administration officials for their failure to prevent hate crimes within their territorial jurisdiction after holding an enquiry by an independent commission of enquiry
  4. Hold registered political parties and other registered entities accountable for the acts of commission or omission by their members involved in hate crimes and direct suitable penal action against them
  5. Prohibit those holding constitutional and public offices including as ministers, members of Parliament or state assemblies, panchayat and municipal office bearers from identifying themselves with lynch-mob accused publicly in any manner and in case of any infraction hold them responsible and subject to immediate disqualification from such offices
  6. Sensitise subordinate judiciary and higher judiciary dealing with such hate crimes so as to protect the vulnerable sections of the society including those belonging to minority communities as well as women, children and Dalits by holding seminars and workshops at regular intervals

Way Forward

  1. The judiciary is the last hope of a billion plus people
  2. It must continue to wield its strongest weapon, judgments in PILs, more effectively than ever before to ensure justice
Aug, 08, 2018

[op-ed snap] Commissions Of Inaction

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Constitutional and statutory commissions in India and their functioning


Context

Various commissions in India

  1. Recently, the government has conferred constitutional status on the National Backward Classes Commission
  2. In India, there are national commissions aplenty, all supposed to be parastatal watchdogs to oversee the implementation of human rights and civil liberties
  3. Today there are at least eight such quasi-autonomous bodies
  4. The exercise began in January 1978 with the establishment of a central Minorities Commission, followed by a joint Scheduled Castes and Scheduled Tribes Commission
  5. The Minorities Commission was eventually rechristened as the National Commission for Minorities (NCM) and placed under an Act of Parliament
  6. In 2003, the SC/ST Commission was split into two bodies, both enjoying constitutional status
  7. Other such commisions are: National Commission for Women, backward classes, safai karmcharis, and National Human Rights Commission (NHRC)

Working of these commissions

  1. The composition and appointment mechanism for various national commissions widely differ
  2. The NHRC must be headed by a former Chief Justice of India and have two members each from amongst judges and human rights experts — all to be appointed by a high-level statutory committee
  3. On the contrary, the NCM and NCW chairs and members are to be appointed by the government in its unrestricted discretion

Role of commissions in protecting rights

  1. Under the noses of these supposedly autonomous national bodies, the situation of citizens’ human rights and civil liberties has been moving from bad to worse
  2. All these white elephants — each maintained with an exorbitant budget — are a drain on the state exchequer and ultimately an unwarranted burden on taxpayers
Aug, 08, 2018

LS passes SC/ST amendment Bill

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Mains level: Misuse of various laws made for the protection of vulnerable sections of society


News

Context

  1. The Lok Sabha passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018, to bypass the recent ruling of the Supreme Court laying down procedures for arrests under the Act.
  2. The Bill will now go to the Upper House.

Bypassing Supreme Court

  1. The Supreme Court had in March introduced protective provisions in the SC/ST (PoA) Act, 1989, to permit anticipatory bail —despite a section of the Act denying it — and laying down a preliminary enquiry by police before any action is taken.
  2. It had also laid down that the permission of the appointing authority would be required to arrest a public servant and that of an SSP for the arrest of a person who is not a public servant.

Provisions of the bill

  1. The Bill inserts section 18A (1) (a) in the 1989 Act, that says a preliminary enquiry shall not be required for registration of an FIR against any person.
  2. The Bill also inserts Section 18A (1) (b), which says the investigating officer shall not require approval for the arrest, if necessary, of any person against whom an accusation of having committed an offence under this Act has been made
  3. The Bill’s Statement of Objects and Reasons says that under the CrPC, the decision to arrest a person is taken by the investigating officer and there was no requirement for approval.

No anticipatory Bail

  1. The Bill also goes back to the original SC/ST (PoA) Bill, doing away with the provision of anticipatory bail the Supreme Court ruling had permitted.
  2. The provision of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court, says section 18A (2) of the Bill.
  3. Section 438 of the CrPC deals with direction for grant of bail to a person apprehending arrest.
Aug, 04, 2018

[op-ed snap]Checking the new abnormal

Note4students

Mains Paper 1: Social Issues | Salient features of Indian Society

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Rise in lynching incidents across India and need for a strong anti-lynching law.


News

Moving over and above anti-lynching law

  1. Concerned by the increasing number of cases of lynching, the Supreme Court observed highlighted the responsibility of the States to prevent untoward incidents and to prevent crime.
  2. As the court noted that when any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society.

Maximum by the Courts: Preventive Guidelines

  1. Towards this goal, in Tehseen S. Poonawalla v. Union of India (July 17, 2018), the court directed that certain guidelines be implemented.
  2. The preventive guidelines require every State to designate a senior police officer, not below the rank of Superintendent of Police, as the Nodal Officer in each district.
  3. This officer will constitute a special task force to collect intelligence on persons likely to commit such crimes or who are involved in spreading hate speech, provocative statements and fake news.
  4. Nodal Officers have been directed to take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means.
  5. Additionally, both the Central and State governments have been directed to broadcast public notifications on radio, television and other media platforms informing the public of the consequences of taking the law into their hands.

Bigger Role for Nodal Officer

  1. In case of an incident of lynching or mob violence, the jurisdictional police station shall immediately lodge a first information report (FIR).
  2. The Station House Officer, in whose police station such an FIR is registered, shall intimate the Nodal Officer whose duty it will be to ensure that the victim’s family members are not further harassed.
  3. Nodal Officers should be made duty-bound to ensure that investigation and prosecution of such cases is strictly carried out, the charge sheet filed within the prescribed time period, and the trial concluded through fast-track courts within six months.

Learning from US example

  1. In the course of arguments, reference was made to the US where lynching was, at one point, rampant, and several American judgments were cited to emphasise that every citizen must abide by the law.
  2. This may be an oversimplification, for in the case of the US it took almost a hundred years between the Civil War (1861-1865) and the Civil Rights Movement (1954-1968) for the practice of mob violence to be wiped out.
  3. Eventually, in 2005, the U.S. Senate formally apologised for not passing an anti-lynching law when it was most needed.

Way Forward

  1. In case of lynching, it is not just the attackers who must be brought to justice; the role of the police must reformed.
  2. We need more than just laws to deal with the deep-rooted hate which appears to have set in below the surface, and is corroding our moral fibre.
  3. Most cases of lynching have the appearance of premeditated acts of violence.
  4. Deep-seated insecurities are being stoked, especially among young people frustrated by the lack of employment opportunities, to spread a fundamentalist agenda.
  5. As a nation, India cannot wait that long. The executive must immediately implement the directions of the Supreme Court.
Aug, 04, 2018

Centre pushes for quota in promotion for SCs/STs

Note4students

Mains Paper 2: Indian Constitution | Significant provisions and basic structure

From UPSC perspective, the following things are important:

Prelims level: Particulars of all the Judgments mentioned, Various Amendments related to the Issues

Mains level: Issue of Reservations of SCs/STs in Promotions


News

Govt. pushes for re-examining Nagaraj Judgment

  1. The Government said it wanted a total of 22.5% (15% for SC+7.5% for ST) posts reserved for promotion for SC/ST in public employment.
  2. It began its push for providing “accelerated promotion with consequential seniority” for Scheduled Castes/ Scheduled Tribes (SC/ST) members in public employment.
  3. It wants another five-judge Constitution Bench led by Chief Justice Dipak Misra to refer the 2006 verdict to a larger Bench for a re-examination.
  4. It said that the 2006 verdict had created an “impossible situation” for providing accelerated promotions with consequential seniority for SC/ST communities in government services.

2006 Nagaraj Ruling

  1. The 2006 Nagaraj judgment was pronounced by a five-judge Constitution Bench.
  2. A/c to this the government cannot introduce a quota in promotion for its SC/ST employees unless they prove that the particular Dalit community is backward, inadequately represented and such a reservation in promotion would not affect the overall efficiency of public administration.
  3. The opinion of the government should also be based on quantifiable data.
  4. It is made clear that even if the state has compelling reasons, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend reservation indefinitely.

Presumed backwardness

  1. The SC/ST communities have faced centuries of deprivation at the hands of society. They have been deprived of access to temples, schools and the basic facilities of life argued the AGI.
  2. But CJI said the three criteria backwardness, inadequacy and administrative efficiency were “compelling reasons” so that reservation by government was not excessive.
  3. The three qualifiers were meant to prevent reservation from making an inroad into the right of equal opportunity in public employment.
  4. The Nagaraj judgment was meant to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system.
  5. In fact, the Nagaraj judgment said the three qualifiers were meant to prevent “reverse discrimination” by State.

Creamy Layer Row

  1. In November 2017, a two-judge Supreme Court Bench led by Justice Kurian Joseph, had re-opened the issues of creamy layer and quota in promotions for SC/ST by referring them to a Constitution Bench.
  2. It was based on a series of questions of law, including clarity on:
  • Article 16 (4), which deals with the State’s powers for providing for appointments or posts for “any backward class of citizens”;
  • On Article 16 (4A), which arms the state with power to make provisions for quota in promotion with consequential seniority to SC/ST communities; and finally
  • Article 16 (4B), which deals with unfilled vacancies of a year reserved for SC/ST kept from being filled up.
Aug, 03, 2018

Explained: SC/ST (Amendment) Act, 2018

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, National Crime Records Bureau,

Mains level: Misuse of various laws made for the protection of vulnerable sections of society


News

Context

  1. The Union Cabinet approved an amendment to The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act to undo certain provisions of the law by the Supreme Court.
  2. The Act would be amended to remove any possibility of interpretation by a court of law.

Background

  1. The SC/ST Act was originally passed in 1955 by the Parliament as the Untouchability (Offences) Act.
  2. It was renamed as the Protection of Civil Rights (PCR) Act in 1976 but the law was considered ineffective in the 1980s and replaced with the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act in 1989.
  3. In 2015, more offences were brought under its ambit by including acts like tonsuring of the head, the moustache of backward caste people by upper-castes as a criminal activity.

20 March SC ruling

  1. A two-judge bench of the Supreme Court ruled that there were “instances of abuse” of the Act by “vested interests” for political or personal reasons.
  2. It, thereafter, laid down guidelines for arrests under the Act “to avoid false implications”.
  3. The court said a preliminary enquiry may be conducted by a DSP to ensure allegations are not “frivolous or motivated” before a case is registered.
  4. It added that a public servant if accused can be only arrested with the permission of the appointing authority.
  5. Others can be arrested only after permission is granted from the Senior Superintendent of Police of the district.
  6. The SSP will have to record in writing the reason for granting permission and hand it to the accused and the concerned court.

Why this decision?

  1. The bench referred to the National Crime Records Bureau (NCRB) data for 2015, which said that closure reports had been filed in 15-16 percent of the complaints under the Act
  2. Over 75 percent of such cases taken up by the courts had resulted in acquittals/ withdrawal or compounding of the cases
  3. There was a need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law

What this amendment aims?

  1. The Amendment seeks to insert three new clauses to Section 18 of the original Act.
  2. The first stating the purposes of the Act that, a “preliminary enquiry shall not be required for registration of a First Information Report (FIR) against any person.
  3. Second that “the arrest of a person accused of having committed an offence under the Act would not require any approval”.
  4. While third says that the provisions of Section 438 of the CrPC which deals with anticipatory bail, shall not apply to a case under this Act, “notwithstanding any judgment or order of any Court”.
Aug, 03, 2018

[op-ed snap] The warping of the logic of reservations

Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Protests across India by various communities demanding reservation and effective ways of dealing with such demands


Context

Reservation demands from various communities

  1. The Maratha reservation demands, like those of the Patidars in Gujarat, the Kapus in Andhra Pradesh and the Jats in Haryana, are the inevitable outgrowths of the political warping of the logic of reservations
  2. This has been a contested issue since its inception
  3. The Constituent Assembly fiercely debated the potential divisiveness of a policy of religion or caste-based reservation during a time of nation-building

Comparing oppressed groups across nations

  1. When it comes to certain groups that have been systematically oppressed for centuries, community identity and economic outcomes are difficult to disentangle
  2. The Dalit experience has often been compared to the African-American experience
  3. A solid body of study in the US has shown that centuries of slavery followed by decades of discrimination in housing, education, employment and law and order continue to affect African-American communities today in terms of capital formation, social capital and economic mobility
  4. Scheduled Castes and Scheduled Tribes face the same problem in India
  5. In addition, economic opportunities, entrepreneurship, access to credit and the like are still mediated to a large extent through informal kin and caste networks today

Economic basis for the reservation not plausible

  1. Affirmative action on an economic basis must be nuanced
  2. It cannot be the job of a state as large and diverse as India to carve out a slice of the pie for every economically disadvantaged citizen
  3. Its job is to grow the pie via inclusive growth, ensure good governance that will give citizens a fair shot at it and put in place social safety nets for those who can’t find a place at the table
  4. Economic reservations, if they are to exist, must be only in instances of persistent, intergenerational poverty

Failure of government

  1. Decades of a closed economy failed to deliver the growth necessary for socioeconomic progress and rid the country of entrenched modes of crony capitalism
  2. Various administrations have also failed to put in place policies and governance structures that will allow them to fulfil their basic functions: delivering public goods to citizens and enabling them to partake of economic growth
  3. Reservation is now a quick and dirty fix for problems that are best addressed by the longer, more arduous process of good governance
  4. It also has the advantage of being a practical tool of targeted political mobilization

Way Forward

  1. In May 1949, Vallabhai Patel had said during the Constituent Assembly debates that rather than quotas on the basis of religion, he would wait for the blossoming of toleration and fair-mindedness for the growing conscience among my own countrymen, for there can be no future for this country except on the basis of true democracy and fair opportunity for all
  2. The caste consciousness still runs deep in Indian society and it shapes socioeconomic structures in negative ways
  3. It would take political courage and effective governance of a high order to push back against quota politics
Aug, 03, 2018

Statutory status for BCs panel

Note4students

Mains Paper 2: Polity | Statutory, regulatory & various quasi-judicial bodies

From UPSC perspective, the following things are important:

Prelims level: 123rd Constitutional Amendment Bill, National Commission for Backward Classes, Article 338 B, Article 368

Mains level: Reservation and various issues related to it


News

Backward classes panel now a constitutional body

  1. The Lok Sabha has passed the 123rd Constitutional Amendment Bill providing for a National Commission for Backward Classes as a constitutional body
  2. The bill provides for the grant of constitutional status to the National Commission for Backward Classes (NCBC) on par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes

Provisions of the bill

  1. The Bill as passed by the Lower House inserts Article 338 B in the Constitution
  2. It provides for a Commission for the socially and educationally backward classes with a Chairperson, Vice-Chairperson and three other members, all of whom shall be appointed by the President of India
  3. It states that the President may specify the socially and educationally backward classes in the various states and union territories
  4. He may do this in consultation with the Governor of the concerned state

Domain of NCBC

  1. The duties of the NCBC include investigating and monitoring how safeguards provided to the backward classes under the Constitution and other laws are being implemented and probe specific complaints regarding violation of rights
  2. Under this measure, the NCBC will have the powers of a civil court while probing any complaint

Bill sent back to RS

  1. As the Lok Sabha passed an alternative amendment to one proposed by the Rajya Sabha, the Bill will once again go to the Rajya Sabha
  2. A constitutional amendment under Article 368 needs to be passed by both Houses separately with a special majority
Jul, 27, 2018

[pib] National Overseas Scholarships for Scheduled Castes

Note4students

From UPSC perspective, the following things are important:

Prelims level: Particulars of the scholarship

Mains level: Government initiatives for empowerment of weaker sections


News

National Overseas Scholarship

  1. The National Overseas Scholarship is a Central Sector scheme for Scheduled Caste (SC) students.
  2. Nodal Ministry: Ministry of Social Justice & Empowerment
  3. The Scheme provides financial assistance to the finally selected candidates for pursuing Master level courses and Ph.D abroad in the accredited Institutions/University by an authorized body of that country.
  4. 30% of the awards are reserved for female candidates.
  5. There is no state wise quota of slots under this Scheme.
  6. Advertisements inviting applications under the scheme are published in leading newspapers and Employment News twice a year, once at the beginning of the year and then once again later during the financial year.
Jul, 21, 2018

[op-ed snap] Fault lines in a ‘landmark’ judgment

Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Mains level: Changes in the SC/ST act after Supreme Court verdict and how it will reduce the effectiveness of the law


Context

SC/ST Act verdict

  1. The verdict on the SC/ST Atrocities Act marks the collapse of the constitutional scheme to protect the weaker sections
  2. The verdict had framed guidelines on how to deal with a person accused under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Protecting the falsely accused

  1. No sensible person can question the need to protect those who are innocent from arbitrary arrest
  2. The demand for “an inbuilt provision” to protect those falsely accused under the Act was first raised by a parliamentary committee in December 2014 and the apex court did so in March 2018
  3. The judgment is concerned with a limited aspect of the Act — protecting innocent officers and employees in government and private sectors from the misuse of the Act

Why the judgment?

  1. One must consider why a fence was put up in the first place before pulling it down
  2. The court appears to have mistaken a large number of acquittals in atrocities cases to be false cases
  3. Similarly, there is no precise data on the scale and extent to which the Act has been misused by SC/ST employees
  4. The bench obviously saw a broader pattern of misuse of the Act

Reasons for acquittal

  1. Police apathy
  2. The social and the economic might of the accused
  3. The dependence of SC/STs on those accused

Encroaching domain of the legislature

  1. The court’s single-minded mission to end “terror in society” rendered it oblivious to the constitutional procedure to be followed in making policies that affect the SC/STs
  2. Article 338 clause 9 stipulates: The Union and every State Government shall consult the Commission [National Commission for Scheduled Castes] on all major policy matters affecting Scheduled Castes
  3. Article 338A, which created the National Commission for Scheduled Tribes, provides the same procedure (as per Clause 9) in the case of STs
  4. When the court wears the policy-making hat in matters related to SC/STs, it too is constitutionally-bound to consult these commissions

Way Forward

  1. The judgment has ended up conveying a false and dangerous message that the Atrocities Act is “a charter for exploitation or oppression,” and “an instrument of blackmail or to wreak personal vengeance”
  2. The task of balancing the rights of innocent persons facing false accusations and the need to accord legitimacy to the Atrocities Act requires compassion, equanimity, reverence for the Constitution and awareness
Jun, 25, 2018

[op-ed snap] The tools for counting

 Note4students

Mains Paper 1: Social Issues | Salient features of Indian Society

From UPSC perspective, the following things are important:

Prelims level: Socio-Economic and Caste Census (SECC),  Indian Council of Social Science Research (ICSSR)

Mains level: Lacunae in current data available for population and how the inclusion of caste in census data collection can help in better planning


Context

Census & SECC 2011

  1. As the 2011 Census approached, demands for inclusion of data on caste in Census reached a crescendo
  2. The government at that time was opposed to collecting caste data and blocked it by claiming that it was logistically impossible for the Census
  3. It said that caste information could be collected via the planned Below Poverty Line (BPL) Census, later renamed the Socio-Economic and Caste Census (SECC)
  4. The hasty inclusion of the caste question in the SECC has resulted in largely unusable data

Caste data collection: Differing views

  1. The simple act of asking about caste creates a chasm within society
  2. Colonial Censuses, beginning with the first Census in 1871, included questions about caste and used these data to divide and conquer India by first privileging Brahmins as interpreters of Indian culture and then targeting them as the roots of caste-based oppression and inequality
  3. This passion for classification has also been termed as the source of anti-Brahmin movements
  4. The colonial Censuses via the process of recording caste generated a conception of community as a homogeneous and classifiable community and thereby influenced the processes of political representation

Change that has happened

  1. Indian society has undergone a tremendous transformation since 1931
  2. Dalits, Adivasis, Other Backward Classes (OBCs) and upper castes are still being defined largely using data from 1931 Census
  3. Land ownership that bolstered the power of upper castes has lost its hold
  4. Land fragmentation and decades of agricultural stagnation have turned many upper caste landowners into marginal farmers barely eking out a subsistence

Effects of landlessness

  1. Landlessness, once the bane of Dalit existence, has left the landless better poised to take advantage of rising rural wages, particularly construction wages
  2. According to NSS data, the bottom fourth of forward castes are poorer than the top half of Dalits
  3. India Human Development Survey shows that 56% of Dalit children ages 8-11 cannot read but neither can 32% of forward caste and 47% of OBC children
  4. Economic growth of the past century, combined with strong affirmation action undertaken by successive governments of the independent nation, may have changed relative fortunes of various groups

Caste data collection

  1. Collection of caste data is not easy
  2. The SECC asked interviewers to write down the name of the caste exactly as articulated by the respondent
  3. By some reports, it has revealed as many as 46 lakh castes
  4. This is because sometimes the same caste is spelt in different ways, at other times some individuals report their jati and others upjati making it difficult to create mutually exclusive categories

Preparing for 2021

  1. We have nearly three years before the Census of 2021 and are fortunate to have data from the SECC and technologies rooted in machine learning at our disposal
  2. It would be possible to set up an expert group that uses the SECC data in conjunction with other data sources such as matrimonial advertisements and State-specific Scheduled Castes/OBC lists to make a comprehensive list of castes and condense them into meaningful categories via machine learning tools
  3. These categories could then be validated by domain experts from the Indian Council of Social Science Research (ICSSR) institutions in various States to come up with a district-specific list of castes that would cover more than 90% of individuals in any given district
  4. Interviewers could use this precoded list to allow respondents to self-classify with a small residual group’s responses being recorded verbatim and categorized later
  5. This is very similar to the technique through which occupational and industrial classification systems are created

Way forward

  1. Collection of data on castes is inherently risky
  2. A caste Census could easily roil the waters in ways that are hard to predict
  3. Without better and more current data, our discourse on caste and affirmative action remains dominated by decisions made by the colonial administration
  4. If we really want to collect data on caste in India and not let the discourse about Indian society be shaped by the political exigencies of colonial India, the time to plan is now
Jun, 07, 2018

Nagaraj Judgment: The law on SC/ST promotions

Note4students

Mains Paper 2: Indian Constitution | Significant provisions and basic structure

From UPSC perspective, the following things are important:

Prelims level: Particulars of all the Judgments mentioned, Various Amendments related to the Issues

Mains level: Issue of Reservations of SCs/STs in Promotions


News

What is the background of Nagaraj, and what did the court say in its verdict?

  1. Responding to the government’s complaint that promotions were at a “standstill” because of verdicts by the High Courts of Delhi, Bombay, and Punjab & Haryana, the Supreme Court said the government was “not debarred” from making promotions so long as they were “in accordance with the law”
  2. While the court did not specify which law it was referring to, the law that currently applies is the one laid down by the five-judge Bench of Chief Justice of India M Nagaraj & Others vs Union Of India & Others, 2006
  3. The court dealt with a challenge to constitutional amendments aimed at nullifying the impact of judgments including that in the famous Mandal case, on reservations in promotions for Scheduled Caste and Scheduled Tribe employees

Questions before Supreme Court

The petition challenged the constitutional validity of:

  1. The Constitution (Seventy-Seventh Amendment) Act, 1995, which inserted Clause 4A in Article 16 (equality of opportunity in matters of public employment);
  2. The Constitution (Eighty-First Amendment) Act, 2000, which inserted Clause 4B in Article 16;
  3. The Constitution (Eighty-Second Amendment) Act, 2000, which inserted a proviso to Article 335 (claims of SCs and STs to services and posts); and
  4. The Constitution (Eighty-Fifth Amendment) Act, 2001, which changed the wording of Article 16(4A).

Indra Sawhney and Others vs Union of India and Others (Mandal case)

  1. In these cases, the Supreme Court observed that reservation under Article 16(4) — which allows the state to make provisions for “reservation of appointments or posts in favour of any backward class of citizens” — did not apply to promotions.
  2. This affected SC and ST employees, and in order to ensure that reservations in promotions continued, Clause 4A was introduced: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion… in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.”
  3. Clause 4B was inserted to ensure that while calculating the quota for a particular year — capped at 50% by Indra Sawhney — the unfilled or ‘carried forward’ quota from the earlier year was not clubbed with the regular quota of that year.

Qualification and Seniority

  1. The 82nd Amendment Act noted that the Supreme Court had, in both cases ruled that relaxation of qualifying marks and standards of evaluation for reservation in the promotion were not permissible under Article 16(4) in view of the command contained in Article 335.
  2. To restore the relaxations, the 82nd Amendment added a proviso to Article 335, allowing “relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.
  3. The 85th Amendment noted that the SC judgments had affected the interests of SC/ST employees “in the matter of seniority on promotion to the next higher grade”.
  4. The amendment introduced the words “with consequential seniority” after “in matters of promotion” in Article 16(4A).

The Nagaraj judgment

  1. The petitioners argued that the four amendments were aimed at reversing the judgments in Indra Sawhney and other cases, that Parliament had arrogated to itself judicial powers, and had, therefore, violated the basic structure of the Constitution.
  2. The court upheld the constitutional validity of the 77th, 81st, 82nd, and 85th Amendments.
  3. It, however, ruled that if the state wished to exercise their discretion and make a provision for reservation in promotions for SCs/STs, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335
  4. Also, even if the State has a compelling reason it will have to see that its reservation provision does not breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
Jun, 06, 2018

Dalit women in India die younger than upper caste counterparts: Report

Note4students

Mains Paper 1: Indian Society | Role of women and women’s organization, population and associated issues, poverty and developmental issues

From UPSC perspective, the following things are important:

Prelims level: NFHS, Particulars of the report

Mains level:  Issues associated with Healthcare access for Women, particularly from vulnerable sections in India


News

Discrimination in accessing Healthcare

  1. This is borne out by recent data from the National Family Health Survey (NFHS)
  2. Dalit women in India die younger than upper caste women and lag behind on almost all health indicators
  3. While violence against Dalits may be the main form of discrimination visible to the outside world, there are many other ways in which caste prejudice manifests itself, one of them being health
  4. For Dalits, who make 16.6% of the total population, health inequalities are the result of both past and ongoing discrimination, including limited educational opportunities, high health risk occupations they are forced to take up, discrimination in access to land, employment, housing and other resources

NFHS corollary to Lancet report

The NFHS finding backs up a 2015 Lancet report ‘Health and the Indian caste system’which says at least three factors are associated with how the caste system affects health—

  1. Genetics
  2. Early environment, and
  3. Opportunities due to social mobility.

Here’s the health status of the women from the community. In all counts, they do worse than the national average:

[A] Anemia:

  1. According to the recent data from the NFHS, among the women in the age group 25-49 who have anaemia, 55.9 % are Dalits. The national average among Indians is 53%.
  2. Even though anaemia is a widespread problem faced by women in India, for Dalit women the problem is compounded.

[B] Life expectancy:

  1. The average age of death for Dalit women is 14.6 years younger than for higher caste women, according to the report.
  2. According to that finding, the average age at death for Dalit women was 39.5 years against 54.1 years for higher-caste women.

[C] Access to healthcare:

  1. According to the NFHS data, among Dalits, 70.4 % of women reported problems with accessing healthcare when they knew they are sick.
  2. Among the reasons cited, getting permission to go to the hospital facility, or distance to the health facility, or money were stated as the reasons. In a number of cases those who are admitted receive discriminatory treatment.

[D] Institutional and in-home deliveries:

  1. Among Dalits, 52.2 % women in the age group 15-49 years had a live birth in the presence of a doctor in the preceding five years.
  2. For the upper castes it is 66.8%.

[E] Nutritional status of Dalit women:

One in four women among the Dalits in the 15-49 age bracket are undernourished according to their Body Mass Index (BMI), while one in six women among upper castes have a similar nutritional profile

May, 05, 2018

[op-ed snap] A pattern of impunity: on the SC/ST Act

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Mains level: Subhash Kashinath Mahajan v. the State of Maharashtra case and its implications on Dalit rights


Context

Protest by Dalits

  1. Dalit and Adivasi rights organizations observed May 1 as ‘National Resistance Day’
  2. The immediate trigger was the Supreme Court order of March 20 on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter SC/ST Act)

Subhash Kashinath Mahajan v. the State of Maharashtra case

  1. In the name of protecting innocent non-SC persons from being victimized by false complaints under the SC/ST Act, SC laid down three guidelines that nullify key provisions of this law:
  • it removed the bar on the grant of anticipatory bail
  • it ruled that where the accused is a non-public servant, the police may make an arrest only after approval by a senior superintendent of police
  • it held that before registering an FIR, the police may conduct a preliminary inquiry to ascertain the veracity of the complaint

Reversing the original mandate of the SC/ST Act

  1. Instead of immediately registering an FIR and investigating the accused, the police would now immediately doubt the Dalit and investigate her complaint about veracity
  2. The police are required to do so by law

Way forward

  1. Existence of The SC/ST Act and the SC/ST Amendment Act is a testament to Dalit agency in a heavily casteist society, and a powerful affirmation of the community’s faith in the Indian Constitution
  2. The problem with this law is not its supposed misuse but the inability of India’s criminal justice system to recognize its own casteist biases
  3. In a society seeped in caste, no institution can claim immunity from casteist prejudices or mindset
  4. We need to acknowledge the social matrix of jurisprudence in India, which is caste
Apr, 28, 2018

Religious freedom conditions continued downward trend in India in 2017: USCIRF

Note4students

Mains Paper 1: Social issues | Communalism

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: State of minority groups in India and issues related to them


News

Deteriorating religious conditions

  1. Religious freedom conditions continued a “downward trend” in India last year as Hindu-nationalist groups sought to “saffronize” it through violence, intimidation, and harassment of non-Hindus and Hindu Dalits
  2. This was observed by a US federal government-appointed commission

India’s position lowered

  1. The US Commission for International Religious Freedom (USCIRF) in its latest report has placed India in the Tier 2 countries of particular concern along with Afghanistan, Azerbaijan, Bahrain, Cuba, Egypt, Indonesia, Iraq, Kazakhstan, Laos, Malaysia, and Turkey
  2. Minority groups in India face challenges ranging from acts of violence or intimidation to the loss of political power, to increasing feelings of disenfranchisement and otherness
  3. In 2017, religious freedom conditions continued a downward trend in India
  4. India’s history as a multicultural and multireligious society remained threatened by an increasingly exclusionary conception of national identity based on religion
Apr, 23, 2018

Minorities’ commission to seek constitutional status

Image source

Note4students

Mains Paper 2: Polity | Statutory, regulatory & various quasi-judicial bodies

From UPSC perspective, the following things are important:

Prelims level: National Commission for Minorities (NCM), Constitutional status, National Commission for Scheduled Castes, National Commission for Scheduled Tribes

Mains level: Various bodies constituted for vulnerable sections and their effectiveness


News

Asking for constitutional status 

  1. The National Commission for Minorities (NCM) has decided to approach the government for granting it Constitutional status
  2. This is being done in order to protect the rights of minority communities more effectively

Why is such demand being made?

  1. If granted such a status, the NCM will be able to act against errant officials who do not attend hearings, follow its order or are found guilty of dereliction of duty
  2. After getting constitutional status, the NCM can penalise or suspend an officer for two days or send him/her to jail
  3. In its present form, the NCM has powers to summon officials, including chief secretaries and director generals of police, but has to rely on departments concerned to take action against them

Constitutional bodies

  1. Till now, only the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes enjoy constitutional status

Back2Basics

National Commission for Minorities (NCM)

  1. The Union Government set up the National Commission for Minorities (NCM) under the National Commission for Minorities Act, 1992
  2. Six religious communities, viz; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified in Gazette of India as minority communities by the Union Government all over India
  3. The NCM adheres to the United Nations Declaration of 18 December 1992 which states that “States shall protect the existence of the National or Ethnic, Cultural, Religious and Linguistic identity of minorities within their respective territories and encourage conditions for the promotion of that identity”
  4. Constitution of India doesn’t define the word ‘Minority’ but has used the word minorities considering two attributes religion or language of a person
  5. The Commission shall consist of
  • a Chairperson,
  • a Vice-Chairperson and
  • Five Members to be nominated by the Central Government from amongst persons of eminence, ability and integrity; provided that five members including the Chairperson shall be from amongst the minority communities
Apr, 21, 2018

[op-ed snap] Checks against atrocities

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Subhash Kashinath Mahajan v. the State of Maharashtra case, SC/ST Act, Article 17, IPC, Articles 21 and 22

Mains level: Recent SC judgment related to SC/ST Act and its ramifications


Context

Balancing penal law enforcement and civil liberties

  1. The Supreme Court, in its recent judgment in Subhash Kashinath Mahajan v. the State of Maharashtra, has stirred up a debate which is bound to impact the law and policy on the prohibition of the practice of untouchability and prevention of atrocities against SCs and STs in India
  2. The task of balancing penal law enforcement and civil liberties is best left to Parliament

SC Judgement

  1. An arrest is not mandatory under the SC/ST Act, and the automatic arrest has been scrapped
  2. The court further directed that public servants can only be arrested with the written permission of their appointing authority. This was to protect public servants and private employees from arbitrary arrest
  3. Supreme Court also ruled that before arresting a public servant under the Act, a preliminary investigation by an officer not below the rank of deputy superintendent of police

False cases & other related data

  1. NCRB data show that 5,347 false cases involving SCs and 912 false cases involving STs were registered in 2016
  2. On the contrary, there is plenty of evidence to support the view that the SCs/STs are victims of rising crime each year
  3. NCRB data show that in the past 10 years, crimes against SCs have risen by 51%
  4. Studies by the National Law School of India University and Action Aid India have shown that religious, social and other disabilities involving the practice of untouchability continue to be widespread in India
  5. Thus, there is much empirical evidence to support the stand that the Act needs to be strengthened and not weakened

Inadequate enforcement

  1. Unlike other offences, untouchability is an offence under the Constitution
  2. Article 17 prescribes that ‘the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law’
  3. Article 17 is exalted to the position of a fundamental right
  4. However, despite the laws, it is generally accepted that Article 17 has not succeeded in achieving its mandate
    largely due to inadequate enforcement
  5. This leads to low conviction rates and a huge pendency of cases

The legislative trend for enforcement

  1. The legislative trend has been to progressively make the penal law tougher
  2. In 2016, several amendments were introduced to strengthen the 1989 Act such as:
  • including more acts as atrocities; increasing the quantum of punishment for the offences defined as atrocities
  • imposing an enhanced duty on public servants such as police officers who are required to enforce the Act
  • constituting special and exclusive courts to try offences under the Act; introducing time limits for investigation and trial

Possible solutions

  1. The ruling on anticipatory bail is to be welcomed as protecting the accused from needless arrest and humiliation on the one hand
  2. But as a victory for human rights on the other, whether ordinary police powers of registering an FIR report and making arrests in cognisable cases should be whittled down to this extent in atrocity cases is a matter of deliberation
  3. False and frivolous complaints filed under untouchability legislation could also have been dealt with by other means which include directions for prompt investigation and prosecution of such offences by the police and others under the Indian Penal Code, 1860

Way forward

  1. Legislation on untouchability and atrocities against SCs/STs arguably constitutes a radical departure from the usual approach of the criminal justice system
  2. The untouchability and atrocities laws, in its zeal to make the penal law stricter and more effective in the prosecution of offenders, cannot violate basic civil liberties as enshrined in Articles 21 and 22
Apr, 19, 2018

Supreme Court rules NCMEI has wide powers

Note4students

Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms & institutions

From UPSC perspective, the following things are important:

Prelims level: National Commission for Minority Educational Institutions (NCMEI), Article 30 of the Constitution

Mains level: Rights available to minority sections and measures for their implementation


News

Jurisdiction of NCMEI

  1. The Supreme Court has held that the National Commission for Minority Educational Institutions (NCMEI) has original jurisdiction to determine which institution should be granted minority status
  2. The NCMEI Act empowers the Commission to decide all questions relating to the status of an institution as a minority educational institution and to declare its status as such

Ensuring Fundamental right under Article 30

  1. The Constitution grants a fundamental right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice
  2. The wide power given to an independent forum like the NCMEI to declare an institution as a minority educational institution furthered the fundamental right guaranteed under Article 30

2006 amendments to the NCMEI Act

  1. The 2006 amendments conferred powers of appeal against orders of the competent authority to the NCMEI
  2. A power of cancellation was also vested in the NCMEI to cancel a certificate granted either by an authority or the NCMEI

Back2Basics

National Commission for Minority Educational Institutions (NCMEI)

  1. The National Commission for Minority Educational Institutions (NCMEI) was established to protect and safeguard the educational institutions which are established by the minorities in India
  2. The key objective is to ensure that the true amplitude of the educational rights enshrined in Article 30(1) of the Constitution is made available to the members of the notified religious minority communities
  3. This entails, inter alia, addressing all issues that pertain to the denial, deprivation or violation of the constitutional rights of the minorities to establish and administer educational institutions of their choice, including all issues related to the grant of NOC, minority status certificates and affiliation to universities, wherever applicable
  4. The commission is headed by a Chairman who belongs to a minority community and has been a Judge of a High Court
  5. Two members are nominated by Central Government. They too must belong to a minority community and must be “persons of eminence, ability, and integrity”
Apr, 04, 2018

Supreme Court refuses to stay SC/ST Act changes, says no dilution

Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Complement this newscard with SC/ ST Act being abused, prior sanction must for arrest, says Supreme Court.


News

SC’s decision

  1. The SC has refused to keep in abeyance its earlier order preventing automatic arrests on complaints filed under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Clarification by the SC

  1. SC said, “It is concerned about innocent people being put behind bars. Can the liberty of a person be taken away without due procedure? There has to be some form of verification”
  2. SC has also said that the court was not trying to stand in the way of the rights of members of the scheduled caste/tribes and was concentrating on protecting false implication of an innocent person

Government’s view

  1. The centre, in its petition said the order “adversely affects a substantial portion of the population of India being SC/ST members”
  2. Government said that the SC order was also “contrary to the legislative policy of the Parliament” as reflected in the SC/ST Act
Mar, 24, 2018

[op-ed snap] Why the Centre must go for revision of judgment on SC/ST law

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: SC/ST Act, Anti Dowry law, National Crime Records Bureau

Mains level: Provisions for ensuring the protection of vulnerable sections of society


Context

Altering the basic structure of SC/ST Act

  1. The Supreme Court has delivered a historic judgment altering the basic structure of the Prevention of Atrocities Act, 1989
  2. The judgment states that public servants and private employees can only be arrested after a preliminary inquiry
  3. In the case of a public servant the appointing authority must give permission in writing and in the case of the public in general, the SSP’s permission is needed

Other changes

  1. A magistrate can extend arrest only after written permission is secured
  2. Anticipatory bail must be given unless a prima facie case of crimes is made out

Judgement fraught with caste prejudice

  1. No law should be misused, neither should it be diluted or made blunt
  2. The appointing authority is hardly expected to give in writing permission to arrest his junior
  3. If the appointing authority happens to be of the same caste or if the employee concerned enjoys a good rapport with him, he may not give permission at all
  4. Political pressure may also be brought on the appointing authority or the SSP not to give permission to arrest the accused

Is only SC/ST Act being misused?

  1. Various other laws like Anti Dowry law also face the same issue
  2. 293 out of 361 dowry cases in 2015 were wrongly applied
  3. Similarly, the law against sexual harassment is believed to have led to several cases where it has been wrongly and unfairly applied

Why making changes in SC/ST Act is a cause for concern?

  1. According to National Crime Records Bureau data, atrocities on Scheduled Castes and Scheduled Tribes, in the period 2007-2017, have increased by 66 percent
  2. During this decade, six Dalit women were raped every day, besides the fact that atrocities against SC/ST occurred every 15 minutes
  3. After this judgment, the Prevention of Atrocities Act, 1989 will get further diluted

Judicial overreach

  1. The Constituent Assembly entrusted the Parliament to alone make laws and the judiciary to interpret them
  2. Currently, the judiciary is making more laws than Parliament

Way forward

  1. The changes brought in the law by SC has raised concerns amongst vulnerable groups
  2. The government should act in a direction that ensures protection for vulnerable sections and a deterrent for those who commit crimes against the weak sections of society
Mar, 22, 2018

SC/ ST Act being abused, prior sanction must for arrest, says Supreme Court

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, National Crime Records Bureau,

Mains level: Misuse of various laws made for the protection of vulnerable sections of society


News

Abuse of law for vested interests

  1. The Supreme Court noted that there were “instances of abuse” of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by “vested interests” for political or personal reasons
  2. SC laid down stringent safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act

Guidelines of the apex court

  1. To avoid the false implication of an innocent, a preliminary inquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated
  2. If the accused is a public servant, he can only be arrested with the permission of the appointing authority
  3. And if the accused is not a public servant, prior permission of the Senior Superintendent of Police of the district will be required

Why this decision?

  1. The bench referred to the National Crime Records Bureau (NCRB) data for 2015, which said that closure reports had been filed in 15-16 percent of the complaints under the Act
  2. Over 75 percent of such cases taken up by the courts had resulted in acquittals/ withdrawal or compounding of the cases
  3. There was a need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law

SC view on secularism/casteism

  1. The working of the Act should not result in perpetuating casteism which can have an adverse impact on the integration of the society and the constitutional values
  2. Secularism is a basic feature of the Constitution
  3. Irrespective of caste or religion, the Constitution guarantees equality in its preamble as well as other provisions including Articles 14-16
  4. Interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society
Jan, 29, 2018

Plea to exclude SC/ST creamy layer from quota

Image source

Note4students

Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Reservation provisions, creamy layer, Indra Sawhney case, M. Nagaraj case 2006

Mains level: Changes required in reservation system to provide intended benefits


News

Demand for creamy layer for SC/ST

  1. The Supreme Court will hear a petition to exclude the affluent members, or the creamy layer, of the Scheduled Castes and Scheduled Tribes from the benefits of reservation
  2. This is the first time a petition has been filed urging the Supreme Court to introduce the creamy layer concept for the SCs/STs

Arguments given in petition

  1. The affluent among the SCs/STs are syphoning off the reservation benefits given to them by the State government as well as the Central government
  2. The benefits of the reservation policy are not percolating down to the people who are in actual need of them
  3. Around 95% members of these communities are at a disadvantage
  4. The petition argues that no class or caste remained homogeneously backward across time

Background: Indra Sawhney case

  1. The Indra Sawhney case or the Mandal case upheld the caste-based reservation for the OBCs as valid
  2. The court also said the creamy layer of the OBCs (those earning a specified income) should not get the benefits of reservation
  3. The ruling confined the exclusion of the creamy layer to the OBCs and not the SCs/STs

M. Nagaraj case 2006

  1. SC’s Constitution bench had given a judgement that the “means test” should be taken into consideration to exclude the creamy layer from the group earmarked for reservation
  2. Means test is a scrutiny of the value of assets of an individual claiming reservation

Back2Basics

Constitutional provisions for reservation

  1. Under Article 15 (3) of the Constitution, any special provision may be made for women and children belonging to all social groups transcending caste, religion etc., for their advancement and welfare in all fields
  2. Under Article 15 (4), special provisions may be made for the advancement of any socially and educationally backward class and for the Scheduled Castes and the Scheduled Tribes
  3. Article 16 (4) permits the state to make any provision for the reservation of appointments or posts in favor of any backward class, which, in the opinion of the state, is not adequately represented in the services under it
  4. The expression “backward class” in this sub-clause is interpreted by the Supreme Court to mean “socially and educationally backward”
  5. Article 46 directs the state to promote with special care the educational and economic interests of the “weaker sections of the people”, particularly of the Scheduled Castes and the Scheduled Tribes and also directs the state “to protect them from social injustice and all forms of exploitation”
  6. Article 335 states that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to the services and posts in connection with the affairs of the Union and of a State
Dec, 07, 2017

Minority tag for Hindus: NCM forms committee

Note4students

 Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: National Commission for Minorities, Articles 25 to 30 of Constitution

Mains level: Minority status in India and various provisions related to it


News

Committee to look into whether Hindus should get minority status

  1. The National Commission for Minorities (NCM) has formed a three-member committee to look into whether Hindus should get minority status in eight states where they are not the dominant religious group
  2. A petition has been filed with NCM seeking minority status for Hindus in eight states: J&K, Lakshadweep, Mizoram, Nagaland, Arunachal Pradesh, Manipur, Meghalaya and Punjab

Why this move?

  1. The activist had originally filed a petition in the Supreme Court
  2. The court declined to adjudicate, saying it is not something that the court can decide on
  3. Activist then approached the Commission with his plea

What does petition say?

  1. According to 2011 Census, Hindus are a minitory in eight states
  2. Their minority rights are being siphoned off illegally and arbitrarily to the majority population
  3. This is because neither central nor state governments have notified Hindus as a ‘minority’ under Section 2(c) of National Commission for Minority Act
  4. Thus, Hindus are being deprived of their basic rights, guaranteed under Articles 25 to 30 of Constitution
Nov, 16, 2017

Quota in promotions: Five-judge bench to decide whether 2006 order needs to be revisited

Image source

Note4Students

Mains Paper 2: Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

The following things are important from UPSC perspective:

Prelims level: Article 145

Mains level: This news card talks about whether SC will examine its 2006 judgment on the reservation of SC and ST in promotions or not. Also highlights why a re-examination of the judgment is required


News

Context

  1. A Constitution Bench of the Supreme Court will examine whether its 2006 judgment on the reservation for Scheduled Castes and Scheduled Tribes in promotions needs to be revisited.
  2. The matter was referred to the Constitution Bench by a three-judge bench.

What’s the matter?

  1. The Constitution Bench has to decide on the limited issue whether the order in M Nagaraj vs the Union of India needs to be looked at afresh.
  2. The Constitution Bench will not go into the merit of the matter.

The 2006 Judgment

  1. In 2006, a five-judge Constitution Bench had ruled that the state was not bound to provide reservation for SCs/STs in promotions.
  2. But in case any state wished to make such a provision, it was required to collect quantifiable data showing backwardness of the class as well as its inadequate representation in public employment.
  3. Additionally, the state was required to ensure that reservation does not breach the 50 percent ceiling, adversely affect the creamy layer or extend it indefinitely.

The 2015 Petition on which the SC has acted

  1. Acting on a 2015 petition filed by the Tripura government which challenged an order of the Tripura High Court, a two-judge bench referred the matter to a Constitution Bench under Article 145(3).
  2. A petition before the High Court had challenged certain provisions of The Tripura Scheduled Castes and Scheduled Tribes (Reservation of vacancies in services and posts) Act, 1991, saying that under these provisions, the state had granted reservation in violation of rules laid down in M Nagaraj vs Union of India case.

Views of CJI

  1. The CJI is examining the issue whether a two-judge judge bench directly refers a matter to Constitution Bench
  2. According to him a Constitution Bench will first decode if the matter needs to be reconsidered at all
Apr, 13, 2016

Maharashtra introduces Bill against caste panchayat

  1. News: Maharashtra govt presented the much-awaited bill against caste panchayats in the State
  2. Reason: In recent times, Maharashtra has witnessed an increasing number of incidents of social boycott and violence at the orders of caste panchayats
  3. Provisions: It prohibits social boycott of a person or group of persons including their family members
  4. Significance: Maharashtra will be the first State in the country to enact a law against social boycott of individuals or families by caste panchayats
  5. Maharashtra also took lead in formulating anti superstition law
Jan, 27, 2016

Genetics throws light on genesis of caste system

  1. Religious diktat enforced more than a millennium ago can have repercussions in genetic make-up of modern-day Indians.
  2. It has found that the country’s billion inhabitants have a far more complex origin than previously imagined.
  3. However, in the complexities of genes lie the secret of one of the country’s most persistent practices: the caste system.
  4. During Gupta period, the social strictures against marriage between caste were enforced.
  5. The block lengths of ancestral genes pointed to the era when mixing of castes ended.
  6. This is the result of a study of numerous communities undertaken by researchers from the National Institute of BioMedical Genomics in WB.
Jan, 23, 2016

Dalit activism is now a reality across campuses in India

Indian campuses are witnessing unusual caste flare-ups, highlighted by the suicide of Dalit scholar Rohith Vemula in Hyderabad.

  1. The Hindu examines how caste fault lines are muddying higher education.
  2. The government’s ill-crafted budget cuts and erratic decision-making are adding to the grievances of a generation.
  3. Dalit student politics is making its presence felt in many Indian universities.
  4. With the alleged suicide of a Dalit student at the University of Hyderabad, this movement is suddenly in the news.
  5. Reservations and discrimination are major issues for organisations.
Jan, 21, 2016

Rohith Vemula could not do research as he was embroiled in probes

The final blow was delivered by Human Resource Development Ministry’s letters and reminders to the university.

  1. The research scholar who committed suicide on the University of Hyderabad (UoH) campus, was known as a bright doctoral student who had secured a CSIR-Junior Research Fellowship (JRF).
  2. The day, January 17, that he hanged himself using ASA’s banner, he was on the 14th day of a sleep-in strike against the authorities.
  3. Following his expulsion from the hostel after a series of incidents and probes which took place on campus dating back to June 2015.
  4. Mr. Vemula could neither pursue his research nor political activism because he had been tied down by 3 ongoing investigations.
  5. With Labour Minister Bandaru Dattatreya referring to the “assault” case on ABVP leader and “anti-national, casteist and extremist” activities on the campus, the matter had already taken a political turn.
Jan, 21, 2016

Research scholar hangs self after expulsion from Central University

Rohith Vemula hanged himself 12 days after he was expelled from his hostel along with four other researchers.

  1. A Dalit research scholar of the University of Hyderabad (UoH), allegedly hanged himself to death 15 days after he was expelled from his hostel along with four other researchers.
  2. The 5 Dalit students of Ambedkar Students Association (ASA) had been on a sleep-in strike in the open on the campus ever since their expulsion.
  3. In the 5-page suicide note recovered from the room Rohith had mentioned how he always “looked at the stars and dreamt of being a writer” and an established academic.
  4. As per the university orders, 5 students, including Vemula, were denied entry into the hostel and permission to gather together.
  5. Following a scuffle between two students organisations — ABVP and ASA.
  • Subscribe

    Do not miss important study material

8
Leave a Reply

Please Login to comment
0 Comment threads
0 Thread replies
0 Followers
 
Most reacted comment
Hottest comment thread
0 Comment authors
Recent comment authors
  Subscribe  
newest oldest most voted
Notify of