Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

No role in State’s quota decisions: Centre tells SC

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Indira Sawhney Case

Mains level : 50% quota limit

The Centre has told the Supreme Court that it has no role in the choices made by the Tamil Nadu government with regard to the provision of reservation for specific castes or communities in state government jobs and admissions.

Reservation being an all-time contested issue is a less inevitable topic for mains. However, we can expect some of the thought triggering questions such as – “Reservation is hardly capable of striking a balance between social inclusion and merit. Critically comment. (250 W)”

OR

Essay topic like- “Meritocracy is unrealized without an egalitarian society” are ready to raid your mind.

Issue over 69%

  • The Centre was responding to a petition challenging the constitutionality of the Tamil Nadu Backward Classes, SCs and STs Act of 1993, which provides 69% reservation in the State.
  • The petitioner contends that the TN has acted “outside its competence” by identifying and classifying socially and educationally backward classes (SEBCs).
  • It is too far in excess of the 50% limit on quota laid down by a nine-judge Bench of the Supreme Court in its judgment in the Indira Sawhney Case (1992).

Indira Sawhney Case

In the famous Mandal case (Indra Sawhney Case, 1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court.

  • Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of a 27% reservation for the OBCs with certain conditions.
  • The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.
  • No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., upto 1997).
  • The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
  • The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate the 50% rule.

What did the Centre say in the TN case?

  • The inclusion or exclusion of any caste/community in the State List of SEBCs is the subject matter of the State government, and the Government of India has no role in the matter.
  • It referred to the Constitution (102nd Amendment) Act of 2018, which details the difference in the procedure for inclusion or exclusion of castes and communities in the State List for SEBCs and the Central List.

Identifying SEBC

  • The power to identify and specify SEBCs lies with Parliament only with reference to the Central List.
  • The State governments may have separate State Lists of SEBCs for providing reservation for recruitment to State services or admissions in State government educational institutions.
  • Under the newly-inserted Article 342A of the 102nd Amendment Act of 2018, the President notifies the SEBCs in a State after consultation with the Governor.
  • The castes or communities included in such State Lists may differ from those included in the Central List.

A case for TN

The senior advocate appearing for Tamil Nadu said the State’s case should be heard separately. The filed affidavit said:

  • India is an amalgam of States with varied population, size, history, culture and social fabric.
  • The circumstances and facts prevailing in Tamil Nadu are not the same or similar to those in any other State.
  • Tamil Nadu is a pioneer in the implementation of reservation in public employment and education. The policy of reservation has been in practice since 1921 in this State.
  • Factual variations contributing to the grant of reservation need to be reckoned with differently for different States while deciding the question on its validity.
  • The State argued that its law was protected under the Ninth Schedule of the Constitution from judicial review.
  • Section 4 of the 1993 Act provides 30% reservation to the Backward Classes, 20% for the Most Backward Classes and de-notified communities, 18% for the SCs and 1% for the STs.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Sub-categorization of OBCs: Development so far

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Sub-categorization of OBCs

The Centre has extended the tenure of the Commission to Examine Sub-categorisation of Other Backward Classes (OBCs) headed by Justice G Rohini, till 31st July this year.

Rs 1.92 crore have been spent on the Commission including salary, consultant fee and other expenses and the report is yet to be publicized. It is can be very well understood that the report will have huge political consequences.

What is the sub-categorisation of OBCs?

  • OBCs are granted 27% reservation in jobs and education under the central government.
  • In September 20202, a Constitution Bench of the Supreme Court reopened the legal debate on sub-categorisation of SCs and STs for reservations.
  • The debate arises out of the perception that only a few affluent communities among over 2,600 included in the Central List of OBCs have secured a major part of this 27% reservation.

Need for sub-categorization

  • The argument for sub-categorisation — or creating categories within OBCs for reservation — is that it would ensure “equitable distribution” of representation among all OBC communities.
  • To examine this, the Rohini Commission was constituted on October 2, 2017.
  • At that time, it was given 12 weeks to submit its report but has been given several extensions since, the latest one being the 10th.
  • Before the Rohini Commission was set up, the Centre had granted constitutional status to the National Commission for Backward Classes (NCBC).

What are the Commissions’ terms of reference?

It was originally set up with three terms of reference:

  1. To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs with reference to such classes included in the Central List;
  2. To work out the mechanism, criteria, norms and parameters in a scientific approach for sub-categorisation within such OBCs;
  3. To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs and classifying them into their respective sub-categories.

The fourth term of reference was added on January 22, 2020, when the Cabinet granted it an extension:

  1. To study the various entries in the Central List of OBCs and recommend correction of any repetitions, ambiguities, inconsistencies and errors of spelling or transcription.

Why so many extensions are being given?

  • This was added following a letter to the government from the Commission on July 30, 2019.
  • In process of preparing the sub-categorised central list of OBCs, the Commission has noted several ambiguities in the list as it stands now.
  • The Commission is of the opinion that these have to be clarified/rectified before the sub-categorised central list is prepared.

What progress has it made so far?

  • In its letter to the government on July 30, 2019, the Commission wrote that it is ready with the draft report (on sub-categorisation).
  • Following the latest term of reference given (on January 22, 2020) to the Commission, it is studying the list of communities in the central list.

How smooth has its work been?

  • A hurdle for the Commission has been the absence of data for the population of various communities to compare with their representation in jobs and admissions.
  • On August 31, 2018, then Home Minister had announced that in Census 2021, data of OBCs will also be collected, but since then the government has been silent on this.
  • Many groups of OBCs have been demanding enumeration of OBCs in the Census.

What have its findings been so far?

  • In 2018, the Commission analysed the data of 1.3 lakh central jobs given under OBC quota over the preceding five years and OBC admissions to central higher education institutions.
  • The findings were: 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs; 24.95% of these jobs and seats have gone to just 10 OBC communities.
  • 983 OBC communities — 37% of the total — have zero representation in jobs and educational institutions; 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Supreme Court directive on Quota in Promotions

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 15, 16

Mains level : Quota in Promotion debate

The Supreme Court has asked Attorney General to compile the various issues being raised by States with regard to the 2006 M. Nagaraj case, which had upheld the application of creamy layer principle to members of the SC/ST communities in promotions.

Must read edition: Reservation not a Fundamental Right

What is the case about?

  • The Centre’s plea came despite the Supreme Court, in September 2018, in Jarnail Singh case, reiterating the Nagaraj judgment of 2006.
  • The 2006 judgment required the States to show quantifiable data to prove the ‘backwardness’ of a community to provide quota in promotion in public employment,
  • The 2018 judgment, which was authored by Justice Rohinton F. Nariman, had refused the government’s plea to refer the 2006 Nagaraj judgment to a seven-judge Bench.
  • It had while modifying the part of the Nagaraj verdict, rejected the Centre’s argument that Nagaraj misread the creamy layer concept by applying it to SC/ST.

Nagaraj Case

  • In Jarnail Singh vs Lachhmi Narain Gupta (2018), the court dealt with a batch of appeals on the correctness of the Supreme Court’s judgment in M Nagaraj & Others vs Union of India (2006).
  • The Nagaraj case, in turn, had arisen out of a challenge to the validity of four Constitution amendments, which the court eventually upheld.

What were the amendments?

  • 77th Amendment: It introduced Clause 4A to the Constitution, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
  • 81st Amendment: It introduced Clause 4B, which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year to find out whether the total quota has breached the 50% limit set by the Supreme Court.
  • 82nd Amendment: It inserted a proviso at the end of Article 335 to enable the state to make any provision for SC/STs “for 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”.
  • 85th Amendment: It said reservation in the promotion can be applied with consequential seniority for the SC/ST employee.

What is Art.335 about?

  • Article 335 of the Constitution relates to claims of SCs and STs to services and posts.
  • It reads: “The claims of the members of the SC’s and ST’s 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.”

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Who are the persecuted Hazara Community of Pakistan?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Persecution of minorities in neighbouring countries

Pakistan’s Hazaras finally ended a protest and agreed to bury the bodies of 11 coal miners from the community killed by the IS.

Genocide and Pakistan are the two inseparable metaphors. Pakistan’s treatment of its minorities is the least highlighted global violation of Human Rights. Hindus, Sikhs and Christians are the most persecuted communities.

Who are the Hazaras?

  • Around 1773, the mountainous region of Hazarajat in modern-day central Afghanistan was annexed and made a part of the territories of the Afghan Empire under Pashtun ruler Ahmad Shah Durrani.
  • The Sunni Muslim majority under the Pashtun ruler resulted in further marginalization of the Shiite Hazara community, to the extent that in the 18th and 19th century.
  • They were forced to leave fertile lowlands in central Afghanistan and make the dry, arid mountainous landscape their new home.

Their persecution

  • Persecution of the Shiite Hazaras is nothing new in Pakistan or neighbouring Afghanistan.
  • They have been frequently targeted by Taliban and IS militants and other militant groups in both countries.

Causes of persecution: Ethnicity and Religion

  • Their unique identity, ethnicity and religion always made the Hazaras stand out among the other communities.
  • Hazaras speak Hazaragi, which is close to Dari Persian, the official language of modern-day Afghanistan.
  • The community also shares physical similarities with the Mongols and their speech, specific terms and phrases, reflect strong Central Asian Turkic influences.
  • This sets them apart from their neighbours in Pakistan and other communities within Afghanistan.

An attempted ethnic cleansing

  • In the 19th century, the Hazara community constituted approximately 67 per cent of Afghanistan’s total population.
  • Since then, primarily due to violence, oppression and targeted massacres, that number has come down to a little as 10 to 20 per cent of the population now.
  • The attacks reached a crescendo in 2013 when three separate bombings killed more than 200 people in Hazara neighbourhoods of Quetta.
  • In the aftermath of this incident, the Shia community in Pakistan had erupted in anger over the Pakistani government’s lack of protection of its minorities.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

How horizontal, vertical quotas work; what Supreme Court said?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NA

Mains level : Reservations policy and need for is revision

The Supreme Court last month clarified the position of law on the interplay of vertical and horizontal reservations.

This newscard is useful for GS paper 1 as well as aspirants with sociology optional. Let us know in the comment box if you want to get a deeper insight.

It perfectly highlights the heart of the debate on “merit versus reservation”, where reservation is sometimes projected as being anti-merit.

What are vertical and horizontal reservations?

  • Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes is referred to as vertical reservation.
  • It applies separately for each of the groups specified under the law.
  • Horizontal reservation refers to the equal opportunity provided to other categories of beneficiaries such as women, veterans, the transgender community, and individuals with disabilities, cutting through the vertical categories.

How are the two categories of quotas applied together?

  • The horizontal quota is applied separately to each vertical category, and not across the board.
  • For example, if women have 50% horizontal quota, then half of the selected candidates will have to necessarily be women in each vertical quota category.
  • This means half of all selected SC candidates will have to be women, half of the unreserved or general category will have to be women, and so on.
  • The interlocking of the two types of reservation throws up a host of questions on how certain groups are to be identified.
  • For example, would an SC woman be put in the category of women or SC? Since quotas are fixed in percentages, what percentage of quota would be attributed to each?

What was the Saurav Yadav case about?

  • The case was on the technicalities that form a substantial question of law.
  • It was this: Two aspirants had secured 276.5949 and 233.1908 marks respectively.
  • They had applied under the categories of OBC-Female and SC-Female respectively. OBC and SC are vertical reservation categories, while Female is a horizontal reservation category.
  • The two candidates did not qualify in their categories.
  • However, in the General-Female (unreserved-female) category, the last qualifying candidate had secured 274.8298 marks, a score that was lower than the two backwards.
  • The question before the court was that if the underlying criterion for making selections is “merit”.

What did the court decide?

  • The court ruled against the UP government.
  • It observed if a person belonging to an intersection of the vertical-horizontal reserved category had secured scores high enough to qualify without the vertical reservation.
  • It held that the person would be counted as qualifying without the vertical reservation, and cannot be excluded from the horizontal quota in the general category.
  • If a person in the SC category secures a higher score than the cut-off for the general category, the person would be counted as having qualified under the general category instead of the SC quota.

What was the government’s argument?

  • The government’s policy was to restrict and contain reserved category candidates to their categories, even when they had secured higher grades.
  • The court said this was tantamount to ensuring that the general category was ‘reserved’ for upper castes.

What was the court’s reasoning?

  • The court did the math by examining a number of hypothetical scenarios.
  • It concluded that if both vertical and horizontal quotas were to be applied together — and consequently, a high-scoring candidate who would otherwise qualify without any reservation.
  • On the other hand, if a high-scoring candidate is allowed to drop one category, the court found that the overall selection would reflect more high-scoring candidates.
  • In other words, the “meritorious” candidates would be selected.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Caste Census and associated issues

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Census of India

Mains level : Issues with Caste Census

The Tamil Nadu government has decided to appoint a commission to formulate a methodology to collect caste-wise particulars of its population and use that to come up with a report.

Q.India’s caste system is perhaps the world’s longest surviving social hierarchy. Critically analyse.

The issue

  • The Centre conducted a ‘Socio-Economic Caste Census’ (SECC) in 2011 throughout the country, but it did not make public the caste component of the findings.
  • In Karnataka, the outcome of a similar exercise has not been disclosed to the public.

Caste details as a part of the census

  • Caste was among the details collected by enumerators during the decennial Census of India until 1931.
  • It was given up in 1941, a year in which the census operation was partially affected by World War II.
  • In his report on the 1941 exercise, then Census Commissioner of India, M.W.M. Yeatts, indicated that tabulation of caste details separately involved additional costs.
  • However, at the time of sorting the details, some provinces or States that wanted a caste record for administrative reasons were given some data on payment.

Issues with caste in the census

  • H. Hutton, the Census Commissioner in 1931, notes that on the occasion of each successive census since 1901, some criticism had been raised about taking any note of the fact of caste.
  • It has been alleged that the mere act of labelling persons as belonging to a caste tends to perpetuate the system.
  • Some argue that there is nothing wrong in recording a fact and ignoring its existence.

View after Independence

  • The 1951 census did not concern itself with questions regarding castes, races and tribes, except insofar as the necessary statistical material related to ‘special groups’.
  • It created certain other material relating to backward classes collected and made over to the Backward Classes Commission.
  • ‘Special Groups’ has been explained as referring to Scheduled Castes, Scheduled Tribes, Anglo-Indians and certain castes treated provisionally as ‘backward’ for the purposes of the census.
  • This implies that BC data were collected, but not compiled or published.

How have caste details been collected so far?

  • While SC/ST details are collected as part of the census, details of other castes are not collected by the enumerators.
  • The main method is by self-declaration to the enumerator.
  • So far, backward classes commissions in various States have been conducting their own counts to ascertain the population of backward castes.
  • The methodology may vary from State to State.

What about SECC 2011?

  • The Socio-Economic Caste Census of 2011 was a major exercise to obtain data about the socio-economic status of various communities.
  • It had two components: a survey of the rural and urban households and ranking of these households based on pre-set parameters, and a caste census.
  • However, only the details of the economic conditions of the people in rural and urban households were released. The caste data have not been released till now.
  • While a precise reason is yet to be disclosed, it is surmised that the data were considered too politically sensitive.
  • Fear of antagonizing dominant and powerful castes that may find that their projected strength in the population is not as high as claimed may be an important reason.

Legal imperative for a caste count

  • The Supreme Court has been raising questions about the basis for reservation levels being high in various States.
  • In particular, it has laid down that there should be quantifiable data to justify the presence of a caste in the backward class list, as well as evidence of its under-representation in services.
  • It has also called for periodical review of community-wise lists so that the benefits do not perpetually go in favour of a few castes.

Caste data for reservations

  • Legislators argue that knowing the precise number of the population of each caste would help tailor the reservation policy to ensure equitable representation of all of them.
  • While obtaining relevant and accurate data may be the major gain from a caste census, the possibility that it will lead to heartburn among some sections and spawn demands for larger or separate quotas.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Ambedkar Social Innovation and Incubation Mission (PIB)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Ambedkar Social Innovation and Incubation Mission

Mains level : Significance of Venture Capital Fund for Schedule caste

Union Social Justice Minister launched the Ambedkar Social Innovation and Incubation Mission(ASIIM) under Venture Capital Fund for SCs, with a view to promoting innovation and enterprise among SC students studying in higher educational institutions.

What is ASIIM ?

  • Under Ambedkar Social Innovation Incubation Mission initiative, one thousand SC youth will be identified in the next four years with start-up ideas through the Technology Business Incubators in various higher educational institutions.
  • They will be funded 30 lakh rupees in three years as equity funding to translate their start-up ideas into commercial ventures.
  • Successful ventures would further qualify for venture funding of up to five Crore rupees from the Venture Capital Fund for SCs.

Venture Capital Fund for SCs:

  • The Social Justice Ministry had launched the Venture Capital Fund for SCs in 2014-15 with a view to developing entrepreneurship amongst the SC and Divyang youth and to enable them to become job-givers.
  • The objective of this fund is to provide concessional finance to the entities of the SC entrepreneurs. Under this fund, 117 companies promoted by SC entrepreneurs have been sanctioned financial assistance to set up business ventures.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[pib] Maulana Azad National Fellowship (MANF) Scheme

Note4Students

From UPSC perspective, the following things are important :

Prelims level : MANF Scheme

Mains level : Not Much

The Ministry of Minority Affairs has provided information about the progress of MANF Scheme in the Parliament.

Note: As the name suggests, the scheme particularly aims to target the Minority community. Here, six major groups are considered a minority. Statement based questions often create bluffs on such conditions.

MANF Scheme

  • The Ministry of Minority Affairs implements MANF Scheme for educational empowerment of students belonging to six notified minority communities i.e. Buddhist, Christian, Jain, Muslim, Sikh, Zoroastrian (Parsi).
  • The Scheme is implemented through the University Grants Commission (UGC) and no waiting list is prepared under the Scheme by UGC.
  • Candidates belonging to the Six centrally notified minority are considered for award of fellowship under the MANF Scheme.
  • The selection of candidates is done through JRF-NET (Junior Research Fellow- National Eligibility Test) examination conducted by the National Testing Agency.
  • Prior to 2019-20, the merit list was prepared on the basis of marks obtained by the candidates in their Post Graduate examination.
  • However, in 2018-19, only the candidates who had qualified CBSE-UGC-NET/JRF or CSIR-NET/JRF were eligible to apply.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Explained: Maratha quota — the agitation, the politics

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Indra Sawhney Judgment

Mains level : Quota debate

The Supreme Court has referred to a Constitution Bench the question of whether states can exceed the 50% limit on quotas that were set by a nine-judge Bench in the landmark Indra Sawhney vs Union of India (1992) case.

Practice question for mains:

Q.The quota policy for OBCs needs an urgent revisit. Comment.

Marathas and their ‘backwardness’

  • The Marathas are a politically dominant community who make up 32% of Maharashtra’s population.
  • They have historically been identified as a ‘warrior’ caste with large landholdings. Eleven of the state’s 19 chief ministers so far have been Marathas.
  • While the division of land and agrarian problems over the years have led to a decline of prosperity among middle- and lower-middle-class Marathas, the community still plays an important role in the rural economy.
  • The discontent in the community was a spillover into protests and unrest until the quota was announced.
  • The second phase of the protest saw a spate of suicides. The backward Marathwada region was the worst affected by the protests.

What was the case?

  • A Bench of the SC heard a batch of petitions challenging reservations for Marathas in education and jobs in Maharashtra.
  • The petitions appealed a 2019 Bombay High Court decision that upheld the constitutional validity of the Maratha quota under the Socially and Educationally Backward Classes (SEBC) Act, 2018.
  • The Bench also heard a petition challenging admission to postgraduate medical and dental courses under the quota in the state.

Earlier Bombay HC ruling

  • The Bombay HC ruled last year that the 16% quota granted by the state was not “justifiable”, and reduced it to 12% in education and 13% in government jobs, as recommended by the Maharashtra State Backward Class Commission (MSBCC).
  • The Bench ruled that the limit of the reservation should not exceed 50%.
  • However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, the inadequacy of representation and without affecting the efficiency in administration.
  • The court relied heavily on the findings of the 11-member MSBCC, which submitted in November 2018 that the Maratha community is socially, economically and educationally backwards.

Existing reservation

  • Following the 2001 State Reservation Act, the total reservation in Maharashtra was 52%: SCs (13%), STs (7%), OBCs (19%), Special Backward Class (2%), Vimukta Jati (3%), Nomadic Tribe B (2.5%), Nomadic Tribe C (3.5%) and Nomadic Tribe D (2%).
  • The quotas for Nomadic Tribes and Special Backward Classes have been carved out of the total OBC quota.
  • With the addition of 12-13% Maratha quota, the total reservation in the state went up to 64-65%.
  • The 10% quota for Economically Weaker Sections (EWS) announced by the Centre last year is also effective in the state.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

OBC categorization: findings, progress by a panel so far

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : OBC categorization

While the ongoing legal debate on sub-categorisation of Scheduled Castes and Scheduled Tribes for reservations is undergoing, a Commission has been examining sub-categorisation of Other Backward Classes (OBC) for almost three years now.

Practice question for mains:

Q.The quota policy for OBCs needs an urgent revisit. Comment.

What is the sub-categorisation of OBCs?

  • OBCs are granted 27% reservation in jobs and education under the central government.
  • The question of sub-categorisation arises out of the perception that only a few affluent communities among the over 2,600 included in the Central List of OBCs have secured a major part of this 27% reservation.
  • The argument for sub-categorisation — or creating categories within OBCs for reservation — is that it would ensure “equitable distribution” of representation among all OBC communities.

Who is examining sub-categorisation?

  • The Commission to Examine Sub-categorisation of Other Backward Classes took charge on October 11, 2017.
  • It is headed by retired Delhi High Court Chief Justice G Rohini.
  • Initially constituted with tenure of 12 weeks ending January 3, 2018, it was granted an extension recently.

What are its terms of references?

It was originally set up with three terms of reference:

  1. To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs with reference to such classes included in the Central List;
  2. To work out the mechanism, criteria, norms and parameters in a scientific approach for sub-categorisation within such OBCs;
  3. To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs and classifying them into their respective sub-categories.

A fourth was added on January 22, 2020, when the Cabinet granted it an extension:

  1. To study the various entries in the Central List of OBCs and recommend correction of any repetitions, ambiguities, inconsistencies and errors of spelling or transcription.

What progress has it made so far?

  • In its letter to the government on July 30, 2019, the Commission wrote that it is ready with the draft report. This could have huge political consequences and is likely to face a judicial review.
  • The current tenure of the Commission ends on January 31, 2021.
  • Its budget is being drawn from the National Commission for Backward Classes (NCBC) which was given constitutional status by the government in 2018.

What progress has it made so far?

  • The Commission is ready with the draft report. This could have huge political consequences and is likely to face a judicial review.
  • The current tenure of the Commission ends on January 31, 2021.
  • Its budget is being drawn from the National Commission for Backward Classes (NCBC) which was given constitutional status by the government in 2018.

How do these data compare with OBCs’ share in the population?

  • A hurdle for the Commission has been the absence of data for the population of various communities to compare with their representation in jobs and admissions.
  • Sources said the data of Socio-Economic Caste Census (SECC) were not considered reliable.
  • The Commission has requested for an appropriate Budget provision for a proposed all-India survey for an estimate of the caste-wise population of OBCs.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

States can have sub-groups among SCs/STs: Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Presidential List

Mains level : Quota within Quota debate

A five-judge Bench of the Supreme Court has held that States can sub-classify Scheduled Castes and Scheduled Tribes in the Central List to provide preferential treatment to the “weakest out of the weak”.

Try this question for mains;

Q.Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality. Discuss this in light of the quest for sub-categorisation of Scheduled Castes/Tribes.

What is the sub-categorisation of SCs?

  • States have argued that among the SCs, there are some that remain grossly under-represented despite reservation in comparison to other SCs.
  • This inequality within the SCs is underlined in several reports, and special quotas have been framed to address it.
  • For example, in AP, Punjab, Tamil Nadu and Bihar, special quotas were introduced for the most vulnerable Dalits.
  • In 2007, Bihar set up the Mahadalit Commission to identify the castes within SCs that were left behind.

About the Judgement

  • The judgment is based on a reference to the Constitution Bench the question of law involving Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.
  • The legal provision allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs.

There lies struggle within castes: SC

  • There is a “caste struggle” within the reserved class as a benefit of reservation is being usurped by a few, the court pointed out.
  • The million-dollar question is how to trickle down the benefit to the bottom rung.
  • It is clear that caste, occupation, and poverty are interwoven.
  • The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes… to take ameliorative measures, said the judgment.

Overruling the old judgment

  • With this, the Bench took a contrary view to a 2004 judgment delivered by another Coordinate Bench of five judges in the E.V. Chinnaiah case.
  • The judgment had held that allowing States to unilaterally “make a class within a class of members of the Scheduled Castes” would amount to tinkering with the Presidential list.
  • The judgment is significant as it fully endorses the push to extend the creamy layer concept to the Scheduled Castes and Scheduled Tribes.
  • Citizens cannot be treated to be socially and educationally backwards till perpetuity; those who have come up must be excluded like the creamy layer, the judgment said.

What is the Presidential list?

  • The Constitution, while providing for special treatment of SCs and STs to achieve equality, does not specify the castes and tribes that are to be called SCs and STs.
  • This power is left to the central executive — the President. As per Article 341, those castes notified by the President are called SCs and STs.
  • A caste notified as SC in one state may not be an SC in another state. These vary from state to state to prevent disputes as to whether a particular caste is accorded reservation or not.
  • According to the annual report of the Ministry of Social Justice and Empowerment, there were 1,263 SCs in the country in 2018-19.
  • No community has been specified as SC in Arunachal Pradesh and Nagaland, and Andaman & Nicobar Islands and Lakshadweep.
  • The Constitution treats all Schedule Castes as a single homogeneous group.

Arguments against sub-categorisation

  • The argument is that the test or requirement of social and educational backwardness cannot be applied to SCs and STs.
  • The special treatment is given to the SCs due to untouchability with which they suffer.
  • In a 1976 case, State of Kerala v N M Thomas, the Supreme Court laid down that “Scheduled Castes are not castes, they are class.”
  • The petitioner’s argument against allowing states to change the proportion of reservation is also based on the perception that such decisions will be made to appease one vote-bank or the other.
  • A watertight President’s list was envisaged to protect from such potential arbitrary change.

Way ahead with the Judgement

  • The judgement reasoned that sub-classifications within the Presidential/Central List do not amount to “tinkering” with it.
  • No caste is excluded from the list. The States only give preference to weakest of the lot in a pragmatic manner based on statistical data.
  • Preferential treatment to ensure even distribution of reservation benefits to the more backward is a facet of the right to equality, judgement observed.

Also read:

[Burning Issue] SC judgement on Reservation not being a Fundamental Right

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Domicile-based job quota in MP

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 16

Mains level : Son of the Soil , Quota Issues

The Madhya Pradesh government’s recent decision to reserve all government jobs for “children of the state” raises constitutional questions relating to the fundamental right to equality.

Try this PYQ:

One of the implications of equality in society is the absence of- (CSP 2018)

(a) Privileges

(b) Restraints

(c) Competition

(d) Ideology

Constitutional provision for Equal Treatment

  • Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
  • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
  • The provision is supplemented by the other clauses in the Constitution that guarantee equality.
  • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
  • This power vests solely in the Parliament, not state legislatures.

Why does the Constitution prohibit reservation based on domicile?

  • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
  • India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
  • Hence the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.

But are reservations not granted on other grounds such as caste?

  • Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
  • To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:
  1. Non-discrimination among equals, and
  2. Affirmative action to equalize the unequal

Supreme Court rulings on quota for locals

  • The Supreme Court has ruled against reservation based on place of birth or residence.
  • In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
  • The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
  • In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
  • In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
  • In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

What about securing jobs for locals in the private sector?

  • Such a law will be difficult to implement even if allowed.
  • Private employers do not go on an annual recruitment drive to fill vacancies identified in advance but hire as and when required.
  • The state can recommend a preference to locals but ensuring that it is followed would be difficult.
  • In 2017, Karnataka mulled similar legislation but it was dropped after the state’s Advocate General raised questions on its legality.
  • In 2019, the state government once again issued a notification asking private employers to “prefer” Kannadigas for blue-collar jobs.

How do some states then have laws that reserve jobs for locals?

  • Exercising the powers it has under Article 16(3), Parliament enacted the Public Employment (Requirement as to Residence) Act.
  • The act aimed at abolishing all existing residence requirements in the states and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh.
  • Constitutionally, some states also have special protections under Article 371. AP under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.
  • Some states have gone around the mandate of Article 16(2) by using language. States that conduct official business in their regional languages prescribe knowledge of the language as a criterion.
  • This ensures that local citizens are preferred for jobs. For example, states including Maharashtra, West Bengal and Tamil Nadu require a language test.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Back in news: EWS quota law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : EWS Quota , Article 15, 16

Mains level : EWS quota and related issues

The Supreme Court has referred to a five-judge Constitution Bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for Economically Backward Section (EWS).

Try this question for mains:

Q.What are the various constitutional challenges posed by the 103rd Constitutional Amendment Act?

What does the reference mean?

  • A reference to a larger Bench means that the legal challenge is an important one.
  • As per Article 145(3) of the Constitution, “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution” shall be five.
  • The Supreme Court rules of 2013 also say that writ petitions that allege a violation of fundamental rights will generally be heard by a bench of two judges unless it raises substantial questions of law.
  • In that case, a five-judge bench would hear the case.
  • Laws made by Parliament are presumed to be constitutional until proven otherwise in court.
  • The SC had refused to stay the 103rd Amendment. A reference will make no difference to the operation of the EWS quota.

What is the 103rd amendment about?

  • It provides for 10% reservation in government jobs and educational institutions for EWS, by amending Articles 15 and 16 that deal with the fundamental right to equality.
  • While Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, Article 16 guarantees equal opportunity in matters of public employment.
  • An additional clause was added to both provisions, giving Parliament the power to make special laws for EWS as it does for SCs, STs and OBCs.
  • The states are to notify who constitute EWS to be eligible for reservation.

Issues with the law

The SC agreed that the case involved at least three substantial questions of law, whether:

  • First, it violates the Basic Structure of the Constitution. This argument stems from the view that the special protections guaranteed to socially disadvantaged groups is part of the Basic Structure and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
  • Second, it violates the SC’s 1992 ruling in Indra Sawhney Case, which upheld the Mandal Report and capped reservations at 50%. In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.
  • The third challenge has been of private, unaided educational institutions. They have argued that their fundamental right to practise a trade/profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

What are the government’s arguments?

  • The Ministry of Social Justice and Empowerment filed counter-affidavits to defend the amendment.
  • When a law is challenged, the burden of proving it unconstitutional lies on the petitioners.
  • The government argued that under Article 46 of the Constitution, part of DPSP, it has a duty to protect the interests of economically weaker sections.

1) The very identity of the Constitution has not been altered.

2) Countering the claims about Indra Sawhney principle, the government relied on a 2008 ruling— Ashok Kumar Thakur v Union of India, in which the SC upheld the 27% quota for OBCs. Here, the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors, to prove that there need not a sole criterion for according reservation.

3) For the unaided institutions, the government argued that the Constitution allows the Parliament to place “reasonable restrictions” on the right to carry on trade.

B2BASICS

What are the significances of the EWS quota?

  • Address economic inequality: Currently, the economically weaker sections of citizens have remained excluded from attending higher educational institutions and public employment due to their financial incapacity. Therefore, the 10% quota is progressive and could address the issues of educational and income inequality in India.
  • Constitutional recognition:The proposed reservation through a constitutional amendment would give constitutional recognition to the poor from the upper castes.
  • Remove stigma associated with Reservation: It will gradually remove the stigma associated with reservation because reservation has historically been related with caste and most often the upper caste look down upon those who come through the reservation.

What are the challenges before the EWS quota?

1.Eligibility criteria:

  • Critics claim that the 8 lakh income threshold is very high and will practically cover nearly all population not already covered by reservations.
  • Notably, NSSO and IT department data shows that at least 95% of Indian families will fall within this limit.
  • Other eligibility criteria have also claimed to be flawed.

2.Sole economic criteria:

  • The Supreme Court in Indra Sawhney judgement has maintained that a backward class cannot be determined mainly with respect to the economic criterion.
  • Hence introducing reservation based on economic criteria would invite judicial scrutiny.

3.50 percent limit:

The SC has put a cap for reservations at 50% – the current proposal will exceed the limit and hence could be legally challenged.

4.Determining economic backwardness:

This is a  major challenge as there are concerns regarding the inclusion and exclusion of persons under the criteria.

5.Enforcement:

The implementation of the legislation would also be a great challenge since the states do not have the finances to enforce even the present and constitutionally mandated reservations.

Shrinking jobs:

When the government is trying to restrict its public services through the advancement of technology in the government system, providing quota in jobs will be a useless move.

6.Encouraging reservations: 

The intent of constitutional makers as originally manifested via Article 15 and 16 was to be reviewed after 10 years. However, instead of restricting the policy of positive discrimination, the government is pushing it in some or other forms.

7.Populist initiative:

When elections are near, many populists’ measures are put forward by political parties such as loan waiver, reservations, etc. Considering the low levels of political literacy and awareness among masses, political parties take leverage of the same thus impacting the socio-economic and political structure at large.

8.Lack of proofs to back the outcomes:

Even after years of reservation policy, there are no considerable pieces of evidence to support the achievements of the original intent of affirmative action. For instance, only about 4 percent each of rural Scheduled Tribe and Scheduled Caste households have a member in a government job.

9.Lack of Level Playing Field:

It has to be noted that the Upper ladder in the reserved category are mainly benefitted from the policy whereas the benefits do not reach the marginalized. It may also happen with respect to reservation based on economic criteria as well.

What is the way forward?

  • One-time usage: Make sure that beneficiaries use their reserved category status only once in their lifetime. For example, a person shall not be allowed to use the reservation for jobs if he/she has already used it for college admissions. Aadhaar can be utilized for this purpose in order to prohibit the second usage.
  • Quality of education: The government should focus on quality in addition to access. For instance, it is no use to give reservation to the poor people in college admission if the quality of the education is low = they get no job. Hence, the quality of education should be given due attention from the primary school stage itself.
  • Vocational education: should be promoted with the necessary skills and knowledge to make them industry ready.
  • Entrepreneurship: Create a spirit of entrepreneurship and make them job giver instead of a job seeker.
  • Social upliftment measures: Alternative as well as effective social upliftment measures should be adopted instead of just focussing on reservation aspect.

 

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Commission for Sub-Categorization of OBCs

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 340

Mains level : National Commission for Backward Classes and its mandate

The Union Cabinet has approved the extension of the term of the Commission to examine the issue of Sub-categorization of Other Backward Classes, by 6 months i.e. upto 31.1.2021.

Practice question for mains:

Q.The quota policy for OBCs needs a revisit. Comment.

About the commission

  • The Commission was constituted under Article 340 of the Constitution in 2017 under the chairmanship of Justice (Retd.) Smt. G. Rohini.
  • The Commission has since interacted with all the States/UTs which have subcategorized OBCs, and the State Backward Classes Commissions.
  • The expenditure related to the establishment and administration costs of the Commission is borne by the Department of Social Justice and Empowerment.

Background

  • 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.
  • It had also observed that it is not impermissible in law if a state chooses to do sub-categorization.
  • 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.
  • However, there was no subcategorization in the central list of OBCs so far.

Why need a 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.
  • 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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Private: Ninth Schedule

A parliamentarian has said in an interview that reservation should be put under the Ninth Schedule of the Constitution.

His comments came days after the Supreme Court ruled that reservation in the matter of promotions in public posts was not a fundamental right and that a state cannot be compelled to offer quota if it chooses not to.

What is the Ninth Schedule?

  • The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts. Currently, 284 such laws are shielded from judicial review.
  • The Schedule became a part of the Constitution in 1951, when the document was amended for the first time.
  • It was created by the new Article 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
  • While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects, such as reservation.
  • A Tamil Nadu law that provides 69 per cent reservation in the state is part of the Schedule.

Article 31A and 31 B

  • While Article 31A extends protection to ‘classes’ of laws, A. 31B shields specific laws or enactments.
  • Article 31B also has retrospective operation: meaning if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid.
  • Although Article 31B excludes judicial review, the apex court has said in the past that even laws under the Ninth Schedule would be open to scrutiny if they violated fundamental rights or the basic structure of the Constitution.

What are the criticisms of the Ninth Schedule?

  • Incorporation of the Ninth Schedule in the Constitution is contentious as it not only fabricates constitutional paradox but also enables legal contradictions.
  • It provides complete blanket protection to state as well as the central laws that are against the fundamental rights.
  • The main motive behind the insertion of laws under this schedule was to protect land reform legislation from judicial dissection and the ensuing delay.
  • However, as time went on, it has been expanded to contain laws that have nothing to with the land reforms, fundamental right or directive principles, leading to undesirable changes.
  • It had become the means to realize the political gains. It even consists of laws that have no contemporary significance.
  • Even if there is wariness with regards to the constitutionality of the ninth schedule, the judiciary has refrained from terming these laws unconstitutional, mainly because of the sincere objective with which it was brought in – the economic equality. This superseded all kinds of legal objections.
  • However, now right to property is no more a fundamental right. Since the major objective of the Ninth Schedule was to protect land reform laws from legal repercussions, there remains no justification for the existence of such a provision in the constitution.

SC judgement related to Ninth Schedule:

  • In a landmark ruling on 11 January 2007, the Supreme Court of India ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution.
  • Chief Justice of India, Yogesh Kumar Sabharwal noted, “If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated.
  • ” The Supreme Court judgment laid that the laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Ninth Schedule of Indian Constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 31A and 31 B, Ninth Schedule

Mains level : Making reservation system more efficient

 

read:

[Burning Issue] SC judgement on Reservation not being a Fundamental Right

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Reservation not fundamental right: SC refuses to hear pleas by TN parties

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 32

Mains level : Making reservation system more efficient

What did the Hon’ble Supreme Court rule?

 

  • Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant.
  • It is settled law that the State Government cannot be directed to provide reservations for appointments in public posts.
  • Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions.
  • The judgment added that it is for the State Government to decide whether this was necessary.

What do the precedents say?

  • There are several major Supreme Court judgments that have, in the past, ruled that Articles 15(4) and 16(4) does not provide a fundamental right per se.
  • A five-judge apex court bench, as early as 1962 in the R. Balaji v. the State of Mysore had ruled that Article 15(4) is an “enabling provision”, meaning that “it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary”.
  • The court was hearing a challenge to an order passed by the erstwhile state of Mysore reserving 68 percent of seats in engineering and medical colleges for educationally and socially backward classes and SCs and STs.
  • Five years later, in 1967, another five-judge bench in A. Rajendran v. Union of India reiterated this position, holding that the government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.
  • Article 16(4), it said, does not confer any right on the citizens and is an enabling provision giving discretionary power to the government to make reservations.
  • The position went on to be reiterated in several other decisions, including the nine-judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench decision in M Nagaraj v. Union of India (2006).

What does the judgment mean?

  • Reservations are not rights: The latest judgment is a reminder that affirmative action programs allowed in the Constitution flow from “enabling provisions” and are not rights as such.
  • Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
  • The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
    • For the backward class: It must be in favor of sections that are backward.
    • Inadequately represented: And inadequately represented in the services based on quantifiable data.

Consequences of this judgment

  • Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
  • Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

Why reservation needed?

  • To correct the historical injustice faced by backward castes in the country.
  • To provide a level playing field for backward section as they can not compete with those who have had the access of resources and means for centuries.
  • To ensure adequate representation of backward classes in the services under the State.
  • For advancement of backward classes.
  • To ensure equality as basis of meritocracy i.e all people must be brought to the same level before judging them on the basis of merit.

Argument Against Reservation

  • Reservation in state services led to divisions and enmity among government employees, vitiating the atmosphere at workplace.
  • Eradication, not perpetuation of caste was the objective of the reservation policy but Caste Based Reservation only perpetuate the notion of caste in society.
  • Reservation was introduced to ensure that the historically underprivileged communities were given equal access to resources but irrespective of the economic progress they continue to remain socially disadvantaged.
  • Reservation destroys self-respect, so much so that competition is no longer on to determine the best but the most backward.
  • Reservations are the biggest enemy of meritocracy which is the foundation of many progressive countries.
  • It has became a tool to meet narrow political ends through invoking class loyalties and primordial identities.
  • The dominant and elite class within the backward castes has appropriated the benefits of reservation and the most marginalised within the backward castes have remained marginalised.
  • Reservation has become the mechanism of exclusion rather than inclusion as many upper caste poors are also facing discrimination and injustice which breeds frustration in the society.

Way forward

  • Meanwhile, calls for reform and ret­hinking reservation policies get louder; one question is whether there’s a need to continue with reservation and if benefits have reached targets.
  • The challenge for India is that while many sections of the society remain disadvantaged, political action has resulted in the relative discrimination within reserved groups.
  • As the reservation pie grows larger, in effect, it becomes a method of exclusion rather than inclusion.
  • It is time that India has to make a critical assessment of its affirmative action programs.
  • Simplification, legislative sunsets, and periodic reviews should be important principles in the redesign.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Private: 100% Reservation and Associated Issues

Context

  • Recently, the Constitution Bench of the Supreme Court has held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
  • The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.
  • The principal grounds cited are mainly found in a 1992 judgment of a nine-judge Bench in Indra Sawhney vs Union of India.

Yet again in the news

  • Since 1992, governments—both the Centre and the states—have been liberal in their interpretation of “extraordinary situation”, and have used various legal provisions to protect policies that breached the 50% cap.
  • For instance, some states have used the Schedule IX shield to protect state laws that expanded reservation beyond 50%. (A Tamil Nadu law that provides 69 per cent reservation in the state is part of the Schedule.)
  • Maharashtra recently enacted legislation to give reservation benefits to Marathas.
  • On the other hand, the Centre created a 10% quota for people from economically “weaker” sections (defying the sole criteria of socio-economic backwardness).

What is the present case

  • The Supreme Court has overruled the Andhra Pradesh government’s decision in 1988 to provide a 100% reservation to Scheduled Tribes for teacher posts in Scheduled Areas.
  • The notification to provide a 100% reservation to Scheduled Tribes (STs) for teacher posts in Scheduled Areas was issued by then governor of the erstwhile Andhra Pradesh.
  • The Fifth Schedule of the Constitution dealing with the administration of Scheduled Areas vests the Governor with legislative and administrative powers.

Note: We shall not indulge in dicussing the pros and cons of reservations. Numerous politicians and forged bhakts are there to brainstorm them.

Why did AP bring such a provision?

  • The scheduled areas are treated differently from the other areas in the country because they are inhabited by ‘aboriginals’ who are socially and economically rather backwards and special efforts need to be made to improve their condition.
  • Therefore, the whole of the normal administrative machinery operating in a state is not extended to the scheduled areas.
  • Then AP govt. observed that there was chronic absenteeism among teachers who did not belong to those remote areas where the schools were located.

No 100% quota permissible

  • The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
  • Merit cannot be denied in toto by providing reservation observed the judgement.
  • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

Constitutionality check: ‘Failed’

  • The Supreme Court concluded that reservation in the case violated Articles 14 (equality before law), 15(1) (discrimination against citizens) and 16 (equal opportunity) of the Constitution.
  • The Court ruled that the Governor’s powers under para 5 of Schedule V are subject to the fundamental rights guaranteed under Part III of the Constitution.
  • It observed that in this case, “there were no such extraordinary circumstances to provide a 100 per cent reservation in Scheduled Areas”.
  • The court also took note of a Presidential Order issued in 1975 under Article 371-D (Special provisions for Andhra Pradesh) of the Constitution, which said employment to people in the state were limited to only their districts.

Other legal loopholes

  • Paragraph 5(1) of Schedule V empowers the Governor to issue a notification directing that any central or state law may not apply to a scheduled area or shall apply to the area with modifications and exemptions.
  • The then Andhra Pradesh Governor had cited this provision.
  • The government order had also cited Andhra Pradesh State and Subordinate Service Rules 1996, which provides for 6 per cent reservation for Scheduled Tribes in the State.
  • But the bench ruled that Para 5(1) of Schedule V does not allow modification of Rules.

Invoking Indra Sawhney judgement: The 50% Cap

  • The court referred to the famous Indra Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
  • The court held that a 100% reservation is discriminatory and impermissible.
  • Among others, it recognized socially and economically backward classes as a category and recognized the validity of the 27 per cent reservation.
  • The concept of ‘creamy layer’ gained currency through this judgment. Those among the OBCs who had transcended their social backwardness were to be excluded from the reservation.

Significance of the present judgement

  • The verdict quashing the 100% quota is not against affirmative programmes as such, but caution against implementing them in a manner detrimental to the rest of society.
  • However, the solution for drafting only members of the local tribes was not a viable solution.
  • As the Bench noted, it could have come up with other incentives to ensure the attendance of teachers.
  • Another aspect that the court took into account was that Andhra Pradesh has a local area system of recruitment to public services.
  • Thus, the 100% quota deprived residents of the Scheduled Areas of any opportunity to apply for teaching posts.

Why so much confusion persists over ‘reservation’ after several Judgements?

  • There are many other reservation-related judgements where the SC has either read down its earlier judgments or has completely side-stepped these.
  • A fair share of the blame, however, must rest with the SC itself in 1994, in Ajay Kumar Singh SC ruled on reservations at the highest levels of education, which Indra Sawhney proscribes.
  • For instance, SC in 2018 upheld one part of the Nagaraj judgment saying that reservations can’t be allowed to affect efficiency negatively while in another judgment.
  • It is necessary to liberate the concept of efficiency from a one-sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration.
  • Unless the apex court lays down its opinion with some degree of certitude, the reservation will likely continue in perpetuity.

What is the remedy for such a situation?

  • B.R. Ambedkar observed during the debate in the Constituent Assembly on the equality clause, that any reservation normally ought to be for a “minority of seats”.
  • This is one of the points often urged in favour of the 50% cap imposed by the Court on the total reservation, albeit with some allowance for relaxation in special circumstances.
  • It is still a matter of debate whether the ceiling has innate sanctity, but it is clear that wherever it is imperative that the cap be breached; a special case must be made for it (as TN and MH did).
  • Such a debate should not divert attention from the fact that there is a continuing need for a significant quota for STs, especially those living in areas under the Fifth Schedule special dispensation.

Way Forward

  • The reservation policy was introduced only for a temporary timeframe until equality reigns amongst all bases of discrimination.
  • However, the policy of reservation has been continuing for over six decades now and continues to expand. Since, Reservation is necessary to provide equality, equity, and diversity in society.
  • The Indra Sawhney judgement started a new era of reservation in India. But actual work of social upliftment is still incomplete.
  • The present system seeks to elevate a section or decelerates another regardless of merit to bring them all on the same level.
  • Still, it is the only prerogative for social upliftment of marginalized sections.
  • There is a need for rationalizing the policy so that a balance can be established between social mobility and merit.

 


Back2Basics: What are Fifth Schedule Areas?

  • The Fifth Schedule of the Constitution deals with the administration and control of scheduled areas and scheduled tribes in any state except the four states of Assam, Meghalaya, Tripura and Mizoram (ATM2).

Who can declare an area to be Scheduled Area?

  • The President is empowered to declare an area to be a scheduled area.
  • He can also increase or decrease its area, alter its boundary lines, rescind such designation or make fresh orders for such re-designation on an area in consultation with the governor of the state concerned.

Administration of Scheduled Areas

  • The executive power of a state extends to the scheduled areas therein. But the governor has a special responsibility regarding such areas.
  • The executive power of the Centre extends to giving directions to the states regarding the administration of such areas.

Role of Governor

  • He has to submit a report to the President regarding the administration of such areas, annually or whenever so required by the President.
  • The Governor is empowered to direct that any particular act of Parliament or the state legislature does not apply to a scheduled area or apply with specified modifications and exceptions.
  • He can also make regulations for the peace and good government of a scheduled area after consulting the tribes advisory council.

The Tribes Advisory Council

  • Each state having scheduled areas has to establish a tribes’ advisory council to advice on welfare and advancement of the scheduled tribes.

States having Scheduled Areas

  • At present, 10 States namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana have Fifth Schedule Areas.
  • Tribal habitations in the states of Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar Pradesh and Jammu & Kashmir have not been brought under the Fifth or Sixth Schedule.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Religious Freedom and India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Religious freedon in India

The U.S. Commission on International Religious Freedom (USCIRF) has downgraded India to the lowest ranking, “countries of particular concern” (CPC) in its 2020 report.

Religious freedom in India has been a contested issue since decades. Recent moves by the govt. since the abrogation of Art. 370 which triggered the riots in Delhi has left a big scar on the secular fabric of India.

About USCIRF

  • It is a U.S. federal government commission created by the International Religious Freedom Act (IRFA) of 1998.
  • Its principal responsibilities are to review the facts and circumstances of violations of religious freedom internationally.

Accusing India of religious intolerance

  • USCIRF has placed India alongside China, North Korea, Saudi Arabia and Pakistan.
  • India was categorised as a “Tier 2 country” in last year’s listing.
  • This is the first time since 2004 that India has been placed in the CPC category.
  • The commission also recommended that the U.S. government take stringent action against India under the “International Religious Freedom Act” (IRFA).

What led India to lower its religious freedom?

  • India took a sharp downward turn in 2019 due to concerns about the Citizenship Amendment Act, the proposed National Register for Citizens, anti-conversion laws and the situation in Jammu and Kashmir.
  • The report accuses India using its strengthened parliamentary majority to institute national-level policies violating religious freedom across India.
  • The panel reported harassment and violence against religious minorities to continue with impunity, and engaged in and tolerated hate speech and incitement to violence against them.

India’s reaction

  • The Centre reacted sharply to the USCIRF report terming it “biased and tendentious” and rejected its observations.
  • The biased and tendentious comments against India are not new. But on this occasion, its misrepresentation has reached new levels.
  • Major panellists of USCIRF dissented with the recommendation on India as being ‘too harsh’ and that ended up placing the country alongside what they termed as “rogue nations” like China and North Korea.
  • India regards the accusations as inaccurate and unwarranted and questioned the body’s “locus standi” in India’s internal affairs.

US’s religious activism: Unwelcomed by all

  • The US earlier this month has announced the launch of a 27-nation International Religious Freedom Alliance, which aim to adopt a collective approach in protecting and preserving religious freedom across the world.
  • Among the prominent countries to join the alliance are Brazil, the United Kingdom, Israel, Ukraine, the Netherlands and Greece.
  • The USCIRF has been accused worldwide of being biased towards focusing on the persecution of Christians and of being anti-Muslim & Hinduphobic. It panels various controversial personalities.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

No 100% quota for Scheduled Areas

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Indira Sawhney judgment

Mains level : Making reservation system more efficient

  • A Constitution Bench of the Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
  • The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.

Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. The 10% EWS quota this year has raised the inevitability for a possible mains question.

No 100% quota

  • The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
  • Merit cannot be denied in toto by providing reservation observed the judgement.
  • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

Invoking Indira Sawhney judgment

  • The court referred to the famous Indira Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
  • The court held that 100% reservation is discriminatory and impermissible.
  • The opportunity of public employment is not the prerogative of few.
  • A 100% reservation to the Scheduled Tribes has deprived SCs and OBCs also of their due representation.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Haryana’s ‘quota within SC quota

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Quota within Quota

Mains level : Making reservation system more efficient

The Haryana Assembly last week passed a Bill to split the 20% quota for Scheduled Castes (SCs) in the state’s higher educational institutions into two, creating a quota within the quota for a new group of “Deprived Scheduled Castes”.

Deprived Scheduled Castes

  • This category has 36 communities including Valmiki, Bazigar, Sansi, Deha, Dhanak, and Sapera.

What does the new law say?

  • Fifty per cent of the 20 per cent seats reserved for SCs for admission in any Government educational institution shall be set aside for candidates belonging to DSCs.
  • Where a seat set aside for candidate from deprived Scheduled Castes is not filled up in any academic year due to non-availability of such candidate; it shall be made available to candidate of Scheduled Castes.

Constitutional Provisions incited

  • Article 15(5) of the Constitution authorizes the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for SCs/STs for admission to educational institutions.
  • However Article 15(5) did not mention powers to bifurcate the quota.

Is this sub-quota a new idea?

  • The present Haryana government has replicated the initiative of the state government in 1994.
  • Then government bifurcated the Scheduled Caste quota into two categories: Block A and Block B.

Why such move?

  • The Statement of Objects and Reasons of the Act says that the representation of the SCs now categorised as DSCs” is “only 4.7%, 4.14% and 6.27% in Group A, Group B and Group C services respectively, even though their population is about 11% of the total State population.
  • The population of other SCs in Haryana is also about 11% of the total State population but in respect of representation in Government Services their share is 11%, 11.31% and 11.8% in Group A, B and C, respectively.”
  • The reason for the poor representation of the DSCs in government jobs can be found in their educational qualifications.
  • Thus, even though the “minimum prescribed educational qualification for majority of the posts of Group A, B & C services… is Graduation, the Socio-Economic Caste Census data reveals that in terms of education.
  • Only 3.53% population of the DSCs is Graduate, 3.75% of them are Senior Secondary level and 6.63% are Matric/Secondary level. Also 46.75% of them are illiterate.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

A blow against social justice

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Constitutional provision for the reservation in the government jobs.

Mains level : Paper 2- Reservation in the government jobs is not the fundamental right.

Context

The recent verdict of a two-judge Supreme Court Bench on reservations and Scheduled Caste and Scheduled Tribes promotions — has mainly raised four constitutional questions.

The first question-Whether reservation in promotions is a fundamental right or not. 

  • Scope for the reservation: Addressing the first question, the scope for reservation for the Backward Classes is promised in Part III of the Constitution under Fundamental Rights.
    • Articles 16(4) and 16(4A) which empowers the state to provide reservation for SCs and STs are a part of the section, “Equality of opportunity in matters of public employment”.
    • The right to equality is also enshrined in the Preamble of the Constitution. Many construe that the reservation is against Article 16 (Right to equality).
  • The basis for the reservation: One should understand that the absence of equal opportunities for the Backward Classes due to historic injustice by virtue of birth entails them reservation.
    • In other words, the right to equality is the basis of reservation as there is no level-playing field among castes.
    • Articles 16 (2) and 16(4) are neither contradictory nor mutually exclusive in nature. In fact, they are complementary to each other; even Article 16(4) is not a special provision.
  • Whether reservation should be applied in promotions?
    • The answer is yes because, in India, where there is a peculiar hierarchical arrangement of caste, it is conspicuous that SCs and STs are poorly represented in higher posts.
    • Confined to lower cadre jobs: Denying application of reservation in promotions has kept SCs and STs largely confined to lower cadre jobs. This is even seen in the higher judiciary.
    • Hence, providing reservation for promotions is even more justified and appropriate to attain equality.
    • Need of the reservation at every level: The question of law is not about enabling reservations in promotions or not, but this judgment destabilises the very basis of reservation; when there is no direct recruitment in higher posts, the implementation of the reservation is justified at every level to get a reasonable representation.
    • Subdivision of reservation not correct: It is not correct to subdivide the scope of reservation at the entry-level and in promotions; this delineation will only lead to confusion in the implementation of reservation.
    • Now, by declaring that reservation cannot be claimed as a fundamental right is a dangerous precedent in the history of social justice.

The second question- Can a court issue a mandamus to the state for providing reservation?

  • Will it be appropriate for the courts to issue a mandamus in this regard?
    • This is inappropriate because when the court is empowered to pass orders to create extra seats every year for forward-caste students who claim to be affected by reservation, why cannot it direct the state to provide reservation in promotions?
  • Use of powers under Article 142: The Supreme Court has extraordinary powers under Article 142, which empowers the Court to pass any order necessary for doing “complete justice in any cause or matter pending before it”.

Third question-Necessity of quantifiable data

  • Data to prove inadequate representation: The next question is about the necessity of quantifiable data to show an inadequate representation of reserved category people.
  • Article 16 addresses the question: This question has been addressed in the Constitution. Article 16(4) reads: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
  • How “opinion of the State” should be construes: Here, “in the opinion of State” should not be construed as the discretion of the state to give the reservation or not; on the contrary, if the state feels that SCs and STs are under-represented, then it is in the domain of the state to provide reservation.
  • Quantifiable data for exceeding the 50% limit: In the Indra Sawhney vs Union of India case (Mandal Commission) the idea of quantifiable data on inadequate representation was applied for exceeding the 50% cap for reservation; within 50% where the existing quotas for SCs and STs are accommodated were not affected.
    • Responsibility to collect data on the State: The responsibility of collecting data on representation by the Backward Classes lies with the state.
    • Pathetically, the last caste-based census was in 1935, and in the pre-Independence era, by the British government.
    • No caste-based census in India: After Independence, no government has had the inclination to conduct a caste-based census due to political reasons.
    • Even if a caste-based census is collected, the population and proportionate representation of SCs and STs will be low. For this reason alone, a proper caste-based census has not been conducted in independent India.
    • No mention of quantifiable data: Moreover, Article 16(4) clearly mentions that if the state, in its opinion, feels that SCs and STs are not adequately represented, then it can provide reservation for them. There is no mention of “quantifiable data” in the Constitution. Even after 70 years of SC/ST reservation, their representation is as low as 3%.

Fourth question-Whether it is the obligation of the state to give reservation?

  • Obligatory on the government: Finally, if the argument is that it is not binding on the state to give reservation, it must be noted that when reservation rights are in Part III as Fundamental Rights, it is the obligation of the state to ensure reservation to the underprivileged.
  • Interpretation as obligatory provisions: This judgment has interpreted Articles 16 (4) and 16(4A) only as enabling provisions.
  • Enabling provisions mean that these provisions empower the state to intervene; it does not mean the state is not bound to provide it.
  • Interpreting the Constitution by paraphrasing and selective reading is dangerous.

 Administrative efficiency

  • Reservation should not affect the efficiency of administration: More importantly, this judgment has raised a new point — that the decision of the State government to provide reservation for SC/STs should not affect the efficiency of administration.
    • This implies that the entry of SC/STs in the job market can reduce the quality of administration; this by itself is discriminatory.
  • No evidence to support the claim: There is no evidence that performance in administration is affected on account of caste.
  • There have been many attempts to dilute reservation in the past. But, this judgment appears to be debatable in the larger context and should be challenged in a constitutional bench.

Conclusion

In a country of parliamentary democracy, even the Constitution of India can be amended. If the government at the Centre has a genuine concern for SC/STs, it can amend the Constitution using its political majority.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Ninth Schedule of the Indian Constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Ninth Schedule of Indian Constitution

Mains level : Read the attached story

A parliamentarian has said in an interview that reservation should be put under the Ninth Schedule of the Constitution.  His comments came days after the Supreme Court ruled that reservation in the matter of promotions in public posts was not a fundamental right and that a state cannot be compelled to offer quota if it chooses not to.

What is the Ninth Schedule?

  • The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts.
  • Currently, 284 such laws are shielded from judicial review.
  • The Schedule became a part of the Constitution in 1951, when the document was amended for the first time.
  • It was created by the new Article 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
  • While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects, such as reservation.
  • A Tamil Nadu law that provides 69 per cent reservation in the state is part of the Schedule.

Article 31A and 31 B

  • While Article 31A extends protection to ‘classes’ of laws, A. 31B shields specific laws or enactments.
  • Article 31B also has retrospective operation: meaning if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid.
  • Although Article 31B excludes judicial review, the apex court has said in the past that even laws under the Ninth Schedule would be open to scrutiny if they violated fundamental rights or the basic structure of the Constitution.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

SC uphold changes in SC/ST Atrocities Law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Protection of SCs and STs against caste based atrocities

 

The Supreme Court has upheld the SCs/STs (Prevention of Atrocities) Amendment Act of 2018, which nullified it’s own controversial March 20, 2018 judgement.  Earlier judgment had diluted the original 1989 legislation, saying they were using its provisions to file false criminal complaints against innocent persons.

Why such ruling?

  • The 2018 Act had nullified a March 20 judgment of the Supreme Court, which allowed anticipatory bail to those booked for committing atrocities against Scheduled Castes and Scheduled Tribes members.
  • The original 1989 Act bars anticipatory bail.
  • The Supreme Court verdict saw a huge backlash across the country. Several died in ensuing protests and property worth crores of rupees was destroyed.
  • The government reacted by filing a review petition in the Supreme Court and subsequently amended the 1989 Act back into its original form.
  • The government had enacted the Amendments, saying the SCs and STs continued to face the same social stigma, poverty and humiliation which they had been subjected to for centuries.

Why was the SC/ST Act enacted?

  • Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989.
  • It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).

Why it was amended?

  • The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints.
  • The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.”
  • Caste of a person cannot be a cause for lodging a false report, the verdict observed.
  • Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.

The Subhash Kashinath Mahajan case

  • Mahajan was Director of Technical Education in Maharashtra.
  • Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers.
  • The denial was challenged on the ground that the state government and not the director was the competent authority.
  • The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.

In what manner had the 2018 judgment diluted provisions for arrest?

ANTICIPATORY BAIL

  • In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act.
  • The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973.
  • It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail.
  • In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.
  • While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

FIR

  • The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”.
  • He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.
  • An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.
  • In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts.
  • He rejected the need of an SSP’s approval for arrest.

PERMISSION

  • In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority.
  • The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district.
  • In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.

Were other provisions diluted?

  • The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society.
  • This may require ‘check on false implication of innocent citizens on caste lines’.
  • Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred.
  • The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

How frequently do SCs/STs face atrocities?

  • A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average.
  • Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs.
  • Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

Assist this newscard with:

[Burning Issue] SC/ST Prevention of Atrocities Act

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Reservation as right: on Supreme Court judgment

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Reservations in jobs flowing from enabling provisions of the Constitution.

Mains level : Paper 2- Provision for the vulnerable section of the society, Role and importance of affirmative action in the development of the weaker section.

Context

The recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm.

Received wisdom in affirmative action jurisprudence

  • Presence of sound legal framework for a reservation: The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements.
  • Solidification of reservation as an entitlement: It is also accepted that the framework has solidified into an entitlement for the backward classes, including the SCs and STs.

What does the judgement mean?

  • Reservations are not rights: The latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such.
  • Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
  • The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
    • For the backward class: It must be in favour of sections that are backward.
    • Inadequately represented: And inadequately represented in the services based on quantifiable data.
  • What happened in the Uttarakhand case? The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
    • What was the reasoning? Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.

Question of government obligation

  • The idea in consonance with the Constitution: The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
  • The larger question of the government obligation: But a larger question looms is there no government obligation to continue with affirmative action if-
    • The social situation that keeps some sections backwards.
    • And at the receiving end of discrimination persists?

Why reservation matters for equality?

  • Reservation as a faced of equality-the SC: Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
  • Completion of equality norm: The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up.

What may be the consequences of this judgement?

  • Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
  • Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

Conclusion

Ensuring adequate representation to disadvantaged sections is a state obligation and the state must play its role in ensuring their representation by appropriate legislation.

 

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

State can regulate minority institutions, says Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : FRs confined to the minority communities

Mains level : Read the attached story

The Supreme Court has held that the state is well within its rights to introduce a regulatory regime in the “national interest” to provide minority educational institutions with well-qualified teachers in order for them to “achieve excellence in education.”

Article 30 is not absolute

  • The verdict said that Article 30(1) (right of minorities to establish and administer educational institutions of their choice) was neither absolute nor above the law.
  • The regulatory law should however balance the dual objectives of ensuring standard of excellence as well as preserving the right of the minorities to establish and administer their educational institutions.
  • Regulations that embrace and reconcile the two objectives should be reasonable.
  • The managements of minority institutions cannot ignore such a legal regime by saying that it is their fundamental right under Article 30.

Serving the national interest

  • A regulation framed in the national interest must necessarily apply to all institutions regardless whether they are run by majority or minority as the essence of Article 30(1) is to ensure equal treatment between the majority and minority institutions.
  • An objection can certainly be raised if an unfavorable treatment is meted out to an educational institution established and administered by minority.
  • But if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter may stand on a completely different footing.

Striking a balance

  • The court explains how to strike a “balance” between the two objectives of excellence in education and the preservation of the minorities’ right to run their educational institutions.
  • For this, the court broadly divides education into two categories – secular education and education “directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority.”
  • When it comes to the latter, the court advocated “maximum latitude” to be given to the management to appoint teachers.
  • The court reasons that only “teachers who believe in the religious ideology or in the special characteristics of the concerned minority would alone be able to imbibe in the students admitted in such educational institutions, what the minorities would like to preserve, profess and propagate.”
  • However, minority institutions where the curriculum was “purely secular”, the intent must be to impart education availing the best possible teachers.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Explained: Creamy layer principle in SC, ST quota for promotion: judgments, appeals

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Read the attached story

Mains level : Creamy Layer clause and its issues

The Centre has urged the Supreme Court to refer to a larger Bench its decision last year that had applied the creamy layer principle to promotions for Scheduled Castes and Scheduled Tribes in government jobs.

What was the case about?

  • In Jarnail Singh vs Lachhmi Narain Gupta (2018), the court dealt with a batch of appeals relating to two reference orders, first by a two-judge Bench and then by a three-judge Bench, on the correctness of the Supreme Court’s judgment in M Nagaraj & Others vs Union of India (2006).
  • The Nagaraj case, in turn, had arisen out of a challenge to the validity of four Constitution amendments, which the court eventually upheld.

What were these amendments?

  • 77th Amendment: It introduced Clause 4A to the Constitution, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
  • 81st Amendment: It introduced Clause 4B, which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year to find out whether the total quota has breached the 50% limit set by the Supreme Court.
  • 82nd Amendment: It inserted a proviso at the end of Article 335 to enable the state to make any provision for SC/STs “for 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”.
  • 85th Amendment: It said reservation in promotion can be applied with consequential seniority for the SC/ST employee.

What is Art. 335 about?

  • Article 335 of the Constitution relates to claims of SCs and STs to services and posts.
  • It reads: “The claims of the members of the SC’s and ST’s 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.”

How did the Nagaraj case proceed?

  • The petitioners claimed that these amendments were brought to reverse the effect of the decision in the Indra Sawhney case of 1992 (Mandal Commission case).
  • In that case the Supreme Court had excluded the creamy layer of OBCs from reservation benefits.
  • The court said reservation should be applied in a limited sense, otherwise it will perpetuate casteism in the country.
  • It upheld the constitutional amendments by which Articles 16(4A) and 16(4B) were inserted, saying they flow from Article 16(4) and do not alter the structure of Article 16(4).

Extending to SC’s and ST’s: A directive for the State

  • The SC ruled that “the State is not bound to make reservation for SC/ST in matter of promotions.
  • However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.
  • 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 the reservation indefinitely.
  • In other words, the court extended the creamy layer principle to SCs and STs too.

What happened in the subsequent Jarnail Singh case?

  • The Centre argued that the Nagaraj judgment needed to be revisited for two reasons.
  • Firstly, asking states “to collect quantifiable data showing backwardness is contrary to the Indra Sawhney v Union of India case where it was held that SC’s and ST’s are the most backward among backward classes.
  • And it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the SCs and STs all over again.
  • Secondly, the creamy layer concept has not been applied in the Indra Sawhney case to SC/ST’s; the Nagaraj judgment, according to the government, “has misread” the Indra Sawhney judgment to apply the concept to the SCs and STs.

How did the court rule?

  • Last year, a five-judge Constitution Bench refused to refer the Nagaraj verdict to a larger bench.
  • However, it held as “invalid” the requirement laid down by the Nagaraj verdict that states should collect quantifiable data on the backwardness of SCs and STs in granting quota in promotions.
  • It said that the creamy layer principle — of excluding the affluent among these communities from availing the benefit —will apply.
  • The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis.
  • This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were, the Bench said.
  • This being the case, it is clear that when a Court applies the creamy layer principle SC/ST’s, it does not in any manner tinker with the Presidential List under Articles 341 or 342.
  • It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.

What happens now?

  • The Centre, while praying that the 2018 judgment be referred to a larger Bench, has referred once again to the 1992 Indra Sawhney judgment, submitting that the Supreme Court then did not apply the creamy layer concept to SCs and STs.
  • The Bench has said it will hear the matter within few weeks.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] Lessons from Ambedkar

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Read the attached story

Mains level : Dalit assertion and thier political empowerment

Context

  • R. Ambedkar is remembered on his 63rd death anniversary on December 6, principally as the chief draftsman of the Indian Constitution.
  • But above all Ambedkar was a valiant fighter for the cause of the Dalits.
  • His strategies to achieve the goal of empowering Dalits shifted with changing contexts but the goal always remained the same: attaining equality with caste Hindus in all spheres of life.

Ambedkar’s work for Dalit Empowerment

Separate electorate

  • It was in pursuit of this goal that in the early 1930s he advocated a separate electorate for the Dalits.
  • This demand was accepted by British PM MacDonald in his Communal Award of 1932, which granted Dalits 18% of the total seats in the Central legislature and 71 seats in the Provincial legislatures to be elected exclusively by Dalits.
  • However, Ambedkar’s success was short-lived because of Mahatma Gandhi’s fast unto death against a separate electorate for Dalits, which he saw as a British ploy to divide Hindu society.

Idea that never came to being

  • Ambedkar gave up his demand in return for an increased number of seats reserved for Dalits but elected by the general Hindu population.
  • However, Ambedkar regretted his decision because he soon realized that given the disparity in the number of eligible voters between caste Hindus and Dalits was huge.
  • With disparity in their socio-economic status, very few of the elected Dalits would be able to genuinely represent Dalit interests.

Defying untouchability

  • Both Gandhi and Ambedkar abhorred untouchability, but the terms they used to describe the “untouchables” demonstrated the wide gulf in their approaches to the issue.
  • Gandhi called them “Harijan” (God’s children) in order to persuade caste Hindus to stop discriminating against them.
  • For Ambedkar, this was a appeasing term and he used the nomenclature Dalit both to describe the reality of oppression and to galvanize his people to challenge and change the status quo.

Ally with the Muslim League

  • In the second half of the 1930s Ambedkar considered the Muslim League a potential ally.
  • He concluded that if Muslims and Dalits acted jointly, they could balance the political clout of caste Hindus.
  • However, he was disillusioned after the Muslim League’s Lahore Resolution of March 1940 demanding a separate Muslim majority state.
  • He felt this undercut Dalit interests in two ways. First, if the Muslim League succeeded in gaining Pakistan, it would drastically reduce the Muslims’ heft in Indian politics and allow caste Hindus a free hand in running the country.
  • Second, even if the bid for Pakistan failed, the Muslim League’s demand for parity in representation with the Hindus effectively marginalized all other groups, especially the Dalits.

Hindu code bill

  • After Independence Ambedkar made his peace with the Congress leadership believing that he could enhance Dalits’ rights from within the power structure.
  • He became Law Minister and Chairman of the Constitution Drafting Committee.
  • He resigned from the Cabinet in 1951 when his draft of the Hindu Code Bill was stalled in Parliament because conservative Hindu members opposed it.

Declining cause of Dalits

  • There are three major problems that continue to bedevil Dalit activism.
  • First, intra-Dalit differences based on sub-castes allows forces opposed to Dalit empowerment to divide Dalits and deny them the clout that they can wield in the Indian polity.
  • Second, interpersonal rivalry among Dalit politicians leads to the same result.
  • Third, the inability of the Dalit leadership to stick with their non-Dalit allies, especially in times of political adversity, makes them appear as unreliable political partners.

Conclusion

  • Although he died a frustrated man, Ambedkar’s devotion to the cause of Dalit empowerment has continued to galvanise Dalits until today.
  • This Dalit awakening is represented in student activism on university campuses as well as through the emergence of Dalit-based parties.
  • The most important lesson to learn from Ambedkar’s repeated exhortations is that unless they remain united, the Dalits will be denied their due share of political power.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[pib] ‘Going Online as Leaders’ Programme

Note4Students

From UPSC perspective, the following things are important :

Prelims level : GOAL Programme

Mains level : Tribal development measures


Ministry of Tribal Affairs has informed that it was not associated with the pilot project GOAL implemented by the Facebook.

GOAL Programme

  • GOAL is a digitally-enabled mentorship initiative of Facebook for empowering tribal youth to become leaders for tomorrow in the respective fields.
  • It is stated to aim at identifying and mobilizing renowned policy makers and influencers, known for their leadership skills or roles, to digitally empower and personally mentor tribal youth from tribal communities across multiple locations of India.
  • The initiative has been designed to identify and attach 1 Mentor who is expert in their respective fields, to four tribal youth, who will be trained and mentored.
  • Facebook had started a pilot project on its own in March 2019 in 5 states of India i.e. Madhya Pradesh, Jharkhand, West Bengal, Odisha, Maharashtra, wherein they have identified 100 Tribal Mentees and 25 Mentors.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] Another quota question: On creamy layer for SCs

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Reservation - creamy layer for SC/ ST

Context

There is a need for an authoritative pronouncement on the question of whether the concept of ‘creamy layer’ ought to be applied to Scheduled Castes and Scheduled Tribes. 

Supreme Court – M Nagaraj

    • The Union government has called upon the Supreme Court to form a seven-judge Bench to reconsider the formulation.
    • In the judgment, the court said that the “creamy layer” should be applied to the SC and ST communities. 
    • The judgment upheld Constitutional amendments meant to preserve reservation in promotions as well as consequential seniority.
    • It contained an exposition of the equality principle. Through that, it hedged reservations against a set of constitutional requirements. Without it, the structure of equal opportunity would collapse. 
    • These were ‘quantifiable data’ to show the backwardness of a community, the inadequacy of its representation in service, and the lack of adverse impact on “the overall efficiency of administration”

Impact of judgment

    • This questioned the continuance of quota policies of various State governments due to non-compliance with these parameters. 
    • In Jarnail Singh (2018), another Constitution Bench reaffirmed the applicability of creamy layer norms to SC/STs. 
    • It ruled that Nagaraj was wrong to require a demonstration of backwardness for the Scheduled Castes and Tribes, as it was directly contrary to the nine-judge Bench judgment in Indra Sawhney (1992).
    • Indira Sawhney laid down that there is no need for a test of backwardness for SC/STs, as “they indubitably fall within the expression ‘backward class of citizens’.”
    • Jarnail Singh accepted the presumption of the backwardness of Scheduled Castes and Tribes. 
    • But it favored applying the ‘means test’ to exclude from the purview of SC/ST reservation those who had achieved some level of economic advancement. 
    • It specifically rejects an opinion by the then Chief Justice K.G. Balakrishnan in Ashoka Thakur (2008) that the ‘creamy layer’ concept is a principle of identification and not one of equality.

The current debate

    • The Centre has accepted that the ‘creamy layer’ norm is needed to ensure that only those genuinely backward get reservation benefits.
    • It is upset that this principle has been extended to Dalits, who are the most backward among the backward sections. 
    • The question is whether the exclusion of the advanced sections among SC/ST candidates can be disallowed only for promotions. 
    • Most of them may not fall under the ‘creamy layer’ category at the entry-level, but after some years of service and promotions, they may reach an income level at which they fall under the ‘creamy layer’. 
    • This may defeat the constitutional amendments that the court had upheld to protect reservation in promotions as well as consequential seniority. 

Conclusion

Another landmark verdict in the history of affirmative action jurisprudence may be needed to settle these questions.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[pib] “Development of PVTGs” Scheme

Note4Students

From UPSC perspective, the following things are important :

Prelims level : PVTGs

Mains level : Tribal development measures

The Union Minister of Tribal Affairs has informed about the funds released under the aforesaid scheme, to the Parliament.

Development of PVTGs Scheme

  • Ministry of Tribal Affairs is implementing the scheme of “Development of PVTGs”.
  • It covers 75 PVTGs for the activities like education, housing, land distribution, land development, agricultural development, animal husbandry, construction of link roads, etc. for the comprehensive socio-economic development of PVTGs.
  • Under the scheme, State Governments submits Conservation-cum-Development (CCD) Plans on the basis of their requirement.
  • 100% grants-in-aid are made available to States as per the provisions of the scheme.

Particularly Vulnerable Tribal Groups

  • There are certain tribal communities who have declining or stagnant population, low level of literacy, pre-agricultural level of technology and are economically backward.
  • They generally inhabit remote localities having poor infrastructure and administrative support.
  • These groups are among the most vulnerable section of our society as they are few in numbers, have not attained any significant level of social and economic development.
  • 75 such groups have been identified and categorized as Particularly Vulnerable Tribal Groups (PVTGs).

Statewise list of PVTGs 

Name of the State Name of PVTGs
Andhra Pradesh (including Telangana) 1.      Bodo Gadaba
2.      Bondo Poroja
3.      Chenchu
4.      Dongria Khond
5.      Gutob Gadaba
6.      Khond Poroja
7.      Kolam
8.      Kondareddis
9.      Konda Savaras
10.  Kutia Khond
11.  Parengi Poroja
12.  Thoti
Bihar (including Jharkhand) 13.  Asurs
14.   Birhor
15.  Birjia
16.  Hill Kharia
17.  Korwas
18.  Mal Paharia
19.  Parhaiyas
20.  Sauria Paharia
21.  Savar
Gujarat 22.  Kathodi
23.  Kotwalia
24.  Padhar
25.  Siddi
26.  Kolgha
Karnataka 27.  JenuKuruba
28.  Koraga
Kerala 29.  Cholanaikayan
30.  Kadar
31.  Kattunayakan
32.  Kurumbas
33.  Koraga
Madhya Pradesh (including Chhattisgarh) 34.  Abujh Marias
35.  Baigas
36.  Bharias
37.  Hill Korbas
38.  Kamars
39.  Saharias
40.  Birhor
Maharashtra 41.  Katkaria (Kathodia)
42.  Kolam
43.  Maria Gond
Manipur 44.  Marram Nagas
Orissa 45.  Birhor
46.  Bondo
47.  Didayi
48.  Dongria-Khond
49.  Juangs
50.  Kharias
51.  Kutia Kondh
52.  Lanjia Sauras
53.  Lodhas
54.  Mankidias
55.  Paudi Bhuyans
56.  Soura
57.  Chuktia Bhunjia
Rajasthan 58.   Seharias
Tamil Nadu 59.  Kattu Nayakans
60.  Kotas
61.  Kurumbas
62.  Irulas
63.  Paniyans
64.  Todas
Tripura 65.   Reangs
Uttar Pradesh (including Uttarakhand) 66.  Buxas
67.  Rajis
West Bengal 68.  Birhor
69.   Lodhas
70.  Totos
Andaman & Nicobar Islands 71.  Great Andamanese
72.  Jarawas
73.  Onges
74.  Sentinelese
75.  Shom Pens

 

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Centre withdraws plan to bring in changes to Forest Act of 1927


  • The Union Environment Ministry withdrew a draft amendment that proposed updates to the Indian Forest Act, 1927.

What was proposed in the Amendment?

  • The Indian Forest Act, 2019, was envisaged as an amendment to the Indian Forest Act, 1927, and an attempt to address contemporary challenges to the country’s forests.
  • Forest-officer not below the rank of a Ranger shall have power to hold an inquiry into forest offences…and shall have the powers to search or issue a search warrant under the Code of Criminal Procedure, 1973.
  • The legislation proposed a forest development cess of up to 10% of the assessed value of mining products removed from forests, and water used for irrigation or in industries.
  • This amount would be deposited in a special fund and used exclusively for reforestation; forest protection and other ancillary purposes connected with tree planting, forest development and conservation.

Why was it contentious?

  • As per the new draft, forest officials have been given the absolute authority to shoot tribals for “violation of laws”.
  • If a forest guard kills an “offender”, the move will invite no prosecution by the state governments without first initiating an inquiry into the matter under an executive magistrate.
  • Under the new amendment, forest departments can also declare any forest as reserved and alienate the forest-dwelling communities from their ancestral lands.
  • This will have a terrible effect on the tribal population, who are struggling to make both ends meet.

Back2Basics

Indian Forest Act, 1927 (IFA)

  • The Indian Forest Act, 1927 was largely based on the British made Indian Forest Act of 1878.
  • Both the 1878 act and the 1927 one sought to consolidate and reserve the areas having forest cover, or significant wildlife, to regulate movement and transit of forest produce, and duty leviable on timber and other forest produce.
  • It also defines the procedure to be followed for declaring an area to be a Reserved Forest, a Protected Forest or a Village Forest.
  • It defines what is a forest offence, what are the acts prohibited inside a Reserved Forest, and penalties leviable on violation of the provisions of the Act.
  • Reserved Forest is an area mass of land duly notified under the provisions of India Forest Act or the State Forest Acts having full degree of protection. In Reserved Forests, all activities are prohibited unless permitted.

Democratic governance of Forests in India

  • During the 1980s and 1990s, at least the Centre showed some kind of sympathy for the tribals, as a result of which important legislations like FRA and the Panchayat (Extension to Scheduled Areas) Act, 1996, or PESA, were enacted.
  • In India, forest governance has turned significantly democratic in the past few years.
  • Back in 1976, the National Commission on Agriculture recommended that the tribals should be chased out. On the basis of that, the Forest (Conservation) Act, 1980 came into being.
  • However, through the National Forest Policy of 1988, the Centre recognised the symbiotic relationship between tribals and forests for the first time.
  • This was then consolidated with the passage of the Forest Rights Act (FRA), 2006, when the Centre agreed that historical injustice had been committed and tried to undo the wrong.

For details, navigate to:

Explained: Forest Rights Act

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] Most marginalised of them all

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Socio economic status of Muslims in India

Context

The 2019 Lok Sabha elections show the political marginalisation of Muslims. There is also the socio-economic marginalisation of the community. Muslims have been losing out to Dalits and Hindu OBCs since the Sachar committee submitted its report in 2005.

Socioeconomic status of Muslims

    • Reports – this is based on the NSSO report (PLFS-2018) and the NSS-EUS (2011-12). 
    • Educational attainment – The proportion of the youth who have completed graduation among Muslims in 2017-18 is 14% as against 18% among the Dalits, 25% among the Hindu OBCs, and 37% among the Hindu upper castes. 
    • Gap in education
      • The gap between the SCs and Muslims is 4% in 2017-18. Six years earlier (2011-12), the SC youth were just 1% above Muslims in educational attainment. 
      • The gap between the Muslims and Hindu OBCs was 7% in 2011-12 and has gone up to 11% now. 
      • The gap between all Hindus and Muslims widened from 9% in 2011-12 to 11% in 2017-18.
    • Muslims in Hindi heartlandMuslim youth in the Hindi heartland fare the worst. Their educational attainment is the lowest in Haryana, 3% in 2017-18; in Rajasthan, this figure is 7%; it is 11% in Uttar Pradesh. 
    • In all these states, except MP, SCs fare better than Muslims. 
    • Eastern India the educational attainment among the Muslim youth in Bihar is 8%, as against 7% among SCs, in West Bengal it is 8%, as against 9% for SCs, and in Assam, it is 7%as against 8% for SCs. 
    • Western India the educational attainment figures for Muslims are better compared to 2011-12. In Gujarat, the gap in educational attainment between the Muslims and SCs is14%. In Maharashtra, the Muslims were 2% better off than SCs in 2011-12, they have now not only lost to SCs but the latter has now overtaken them by 8%. 
    • SouthWith 36% of graduate Muslim youth, Tamil Nadu tops the educational attainment parameter. In Kerala, this figure is 28%, in Andhra Pradesh, it is 21% and in Karnataka, 18% of the Muslim youth are graduates. While the community is giving a close competition to SCs in Tamil Nadu and AP, it is losing out in Kerala. 
    • Reasons for better outcomes in South – The developments in South India have more to do with the relatively faster mobility of SCs than the marginalisation of Muslims. Muslims enjoy positive discrimination in these states – Dalit and OBC Muslims are given reservations under the OBC quota.
    • In educational institutions  – Only 39% of the community in the age group of 15-24 are in educational institutions as against 44% for SCs, 51 % for Hindu OBCs and 59% for Hindu upper castes.

Conclusion

    • The marginalisation of Muslims began several years ago, the phenomenon seems to have gathered pace in recent years. 
    • Sam Asher et al point out in their recent study, ‘Intergenerational Mobility in India: Estimates from New Methods and Administrative Data’, that Muslims are being left out from educational mobility in India while the SCs are getting integrated into it.

Conclusion

More studies are needed to link this process to the political marginalisation of Muslims.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

President gives assent to Triple Talaq Bill

Note4Students

From UPSC perspective, the following things are important :

Prelims level : About the bill, President's assent

Mains level : Triple Talaq Issue

  • Hon’ble President gave his assent to the Triple Talaq bill, which makes giving instant oral triple talaq a criminal offense with provisions of jail term of up to three years.
  • The Triple Talaq law or the Muslim Women (Protection of Rights On Marriage) Act, 2019, has come into effect retrospectively from September 19, 2018.

Key provisions of the Act

Defining Triple Talaq

  • It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
  • Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.

Offence and penalty

  • The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)
  • The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.

Grant of Bail

  • The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.

Settlement

  • The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared).
  • Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate.

Alimony

  • A Muslim woman, against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.
  • The amount of the allowance will be determined by the Magistrate.

Custody of Children

  • A Muslim woman, against whom such talaq has been declared, is entitled to seek custody of her minor children.
  • The manner of custody will be determined by the Magistrate.

Back2Basics

Presidents Assent and Vetoes

Veto Powers of the President of India – Comprehensive Notes

 

For additional readings navigate to the page:

[Burning Issue] Triple Talaq

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Too much quota may impact right to equal opportunity: Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Deabte over quotas

  • The Bench is examining whether to refer to a Constitution Bench a batch of petitions challenging the validity of a constitutional amendment providing 10% economic quota in government jobs and educational institutions.

Why issue over Quota?

  • The Supreme Court orally remarked that excessive quota may impact the right to equal opportunity guaranteed under the Constitution.
  • The court said quota benefits given to the most “forward” classes, especially to those who had no qualification whatsoever, would result in “excess” reservation and breach equality.
  • Reservation itself is an exception. Reservation is intended to achieve equality of opportunity.

Referring Indra Sawhney case

  • The economic reservation violated the 50% reservation ceiling limit fixed by a nine-judge Bench in the Indra Sawhney case.
  • Further, the 1992 judgment had barred reservation solely on economic criterion.
  • In a 6:3 majority verdict, the apex court, in the Indra Sawhney case, had held that “a backward class cannot be determined only and exclusively with reference to economic criterion.
  • It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion.

Issue over economically backward quota

  • After a gap of 27 years, the Constitution (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward” in the unreserved category.
  • The Act amends Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.
  • This 10% economic reservation is over and above the 50% reservation cap.
  • The government however has justified to the apex court that the 10% economic quota law was a move towards a classless and casteless society.
  • It said the law was meant to benefit a “large section of the population of 135 crore people” who are mostly lower middle class and below poverty line.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[pib] Protection and Preservation of Endangered Languages of India Scheme

Note4Students

From UPSC perspective, the following things are important :

Prelims level : SPPEL Scheme

Mains level : Read the attached story

  • The Government of India has initiated a scheme known as “Protection and Preservation of Endangered Languages of India (SPPEL)”, informed an MP in Parliament.

About SPPEL Scheme

  • Galvanized by the grim situation of lesser known languages in the country, the Scheme was instituted by Ministry of Human Resource Development in 2013.
  • The sole objective of the Scheme is to document and archive the country’s languages that have become endangered or likely to be endangered in the near future.
  • The scheme is monitored by Central Institute of Indian Languages (CIIL) located in Mysuru, Karnataka.
  • The CIIL has collaborated with various universities and institutes across India for this mission.
  • University Grants Commission (UGC) is also providing financial assistance for creation of centres for endangered languages at Central and State Universities.

Present status

  • At the moment, the languages which are spoken by less than 10,000 speakers or languages which are not linguistically studied earlier are chiefly considered to be documented in this scheme.
  • Presently, 117 languages have been listed for the documentation.
  • Documentation in the form of grammar, dictionary and ethno-linguistic profiles of about 500 lesser known languages are estimated to be accomplished in the coming years.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed of the day] The judicial presumption of non-citizenship

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Citizenship Process in Assam and challenges therein

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

  • On May 17, in a very short hearing, a three-judge Bench of the Supreme Court (the Chief Justie of India Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna) decided a batch of 15 petitions under the title Abdul Kuddus v Union of India.
  • Innocuously framed as resolving a “perceived conflict” between two paragraphs of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the judgment — little reported in the media — nonetheless had significant consequences for the ongoing events in Assam surrounding the preparation of the National Register of Citizens (“the NRC”).

Process concerning citizenship.

The issue arose because, in the State of Assam, there are two ongoing processes concerning the question of citizenship.

 Foreigners Tribunals – The first includes proceedings before the Foreigners Tribunals, which have been established under an executive order of the Central government.

NRC – The second is the NRC, a process overseen and driven by the Supreme Court. While nominally independent, both processes nonetheless bleed into each other, and have thus caused significant chaos and confusion for individuals who have found themselves on the wrong side of one or both.

Arguments

  • The petitioners in Abdul Kuddus argued that an opinion rendered by the Foreigners Tribunal had no greater sanctity than an executive order.
  • Under the existing set of rules, this meant that an adverse finding against an individual would not automatically result in their name being struck off the NRC.
  • Furthermore, the Tribunal’s opinion could be subsequently reviewed, if fresh materials came to light.
  • In short, the petitioners’ case was that the two processes — that of the Foreigners Tribunal and of the NRC — should be kept entirely independent of each other, and without according primacy to one over the other.

Flawed tribunals

The Supreme Court rejected the petitioners’ arguments, and held that the “opinion” of the Foreigners Tribunal was to be treated as a “quasi-judicial order”, and was therefore final and binding on all parties including upon the preparation of the NRC.

Problems with judgement and tribunals

1. Establishment – First, Foreigners Tribunals were established by a simple executive order.

2.Qualifications- Second, qualifications to serve on the Tribunals have been progressively loosened and the vague requirement of “judicial experience” has now been expanded to include bureaucrats.

3. No specific process – And perhaps, most importantly, under the Order in question (as it was amended in 2012), Tribunals are given sweeping powers to refuse examination of witnesses if in their opinion it is for “vexatious” purposes, bound to accept evidence produced by the police, and, most glaringly, not required to provide reasons for their findings.

But in further strengthening an institution — the Foreigners Tribunal — that by design and by practice manifestly exhibits the exact opposite of this principle, the Supreme Court failed to fulfil its duty as the last protector of human rights under the Constitution.

Unwelcome departure

  • The Court attempted to justify this by observing that “fixing time limits and recording of an order rather than a judgment is to ensure that these cases are disposed of expeditiously and in a time bound manner”.
  • Departure from rule of law –  When the stakes are so high, when the consequences entail rendering people stateless, then to allow such departures from the most basic principles of the rule of law is morally grotesque.

Background Cases

Sarbananda Sonowal  –

  • The Court’s observations in the Kuddus case, and indeed, the manner in which it has conducted the NRC process over the last few months, can be traced back to two judgments delivered in the mid-2000s, known as Sarbananda Sonowal Iand II.
  • In those judgments, relying upon unvetted and unreviewed literature, without any detailed consideration of factual evidence, and in rhetoric more reminiscent of populist demagogues than constitutional courts, the Court declared immigration to be tantamount to “external aggression” upon the country; more specifically, it made the astonishing finding that constitutionally, the burden of proving citizenship would always lie upon the person who was accused of being a non-citizen.
  • A parliamentary legislation that sought to place the burden upon the state was struck down as being unconstitutional.

Conclusion

1.Presumption of non-citizenship- What the rhetoric and the holdings of the Sonowal judgments have created is a climate in which the dominant principle is the presumption of non-citizenship.

Dehumanisation – Apart from the absurdity of imposing such a rule in a country that already has a vast number of marginalised and disenfranchised people, it is this fundamental dehumanisation and devaluation of individuals that has enabled the manner in which the Foreigners Tribunals operate, the many tragedies that come to light every week in the context of the NRC, and judgments such as Abdul Kuddus.

The right to life – It is clear that if Article 21 of the Constitution, the right to life, is to mean anything at all, this entire jurisprudence must be reconsidered, root and branch.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Explained: Forest Rights Act case

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Forest Rights Act

Mains level : Read the attached story

Background

  • Districts with sizeable tribal populations saw several protests and demonstrations.
  • The protests were organised by the Bhumi Adhikar Andolan. There were two issues that the demonstrators were decrying.
  • One, the proposed amendments to the Indian Forest Act (IFA), 1927; the concerned amendments to the IFA have been sent to states for consultation.
  • Two, a move to oust forest-dwellers from forest land; a case to this effect concerning the Forest Rights Act (FRA) comes up for its next hearing before the Supreme Court.

What is the FRA case before the Supreme Court?

  • In Feb this year, the Supreme Court ordered the eviction of lakhs of tribals and other traditional forest dwellers whose claims under The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (or FRA), 2006, had been rejected following a three-tier process.
  • Later, the SC temporarily put on hold the eviction by an order giving state governments time to file affidavits on whether due process was followed before claims were rejected.
  • In the next hearing the Centre and states are expected to file affidavits regarding the implementation of the FRA.

What are the proposed amendments to the IFA?

  • The FRA, enacted in 2006, envisions the forest rights committee of a village as the central unit in managing forest resources.
  • The proposed IFA amendments will revert to giving overriding powers to Forest Department officials.
  • The greater policing powers to the Forest Department include the use of firearms, and veto power to override the FRA.
  • Further, if rights under FRA are seen as hampering forest conservation efforts, the state may commute such rights through compensation to the tribals.
  • The changes also propose to open up forest land specifically for commercial exploitation of timber or non-timber forest produce.
  • Across India, tribal rights activists are of the view that the proposed IFA amendments will divest tribals and other forest-dwelling communities of their rights over forest land and resources.

Who are the petitioners, and what is their contention?

  • The petitioners are Wildlife First, Nature Conservation Society, and Tiger Research and Conservation Trust.
  • They contend that the protection of forests has been severely affected due to bogus claims under the FRA.
  • The bogus claimants continue to occupy large areas of forest lands, including inside national parks and sanctuaries, despite their applications being rejected under the appeals process of the FRA.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : NRC exercise is focusing on exclusion

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Go Tribal Campaign

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Scheme

Mains level : Nothing Much

CONTEXT

TRIFED, a Multi-State Co-operative Society under the Ministry of Tribal Affairs has launched the “Go Tribal” campaign.

Campaign 

  • Products available under Tribes India brand & outlets can also be procured through Online retailers like Amazon, Flipkart, etc. with whom TRIFED has entered into Memorandum of Understanding (MoU).
  • TRIFED has not introduced Khadi Kurtas and Jackets in collaboration with “I Am Khadi” foundation.
  • However, in order to commemorate the 150th birth anniversary of Father of Nation, Tribes India/TRIFED is promoting Khadi based products made by tribal artisans.

Minor Forest Produces

  • Besides continuing the existing schemes for tribal welfare, the Ministry of Tribal Affairs under its scheme of ‘Mechanism for Marketing of Minor Forest Produce (MFP) through Minimum Support Price (MSP) and Development of Value Chain for MFP’ has included 26 additional Minor Forest Produces for which Minimum Support Price has been notified in December 2018/ January 2019.
  • Also better facilities for skill upgradation and value addition for MFPs in the form of Van Dhan Kendras for providing better monitory return to the MFP gatherers have also been included.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Challenging 103rd Constitutional Amendment

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] One more quota

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothig Much

Mains level : Implications of community based reservations

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] Quota politics

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Whether OBCs can be granted SC status by state government

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Abujh Maria PVTGs

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Abujh Maria PVTGS

Mains level : PVTGS in India


  • The Chhattisgarh government is processing habitat rights for Abujh Marias, a Particularly Vulnerable Tribal Group (PVTG).

Particularly Vulnerable Tribal Groups (PVTGs)

  • Tribal communities are often identified by some specific signs such as primitive traits, distinctive culture, geographical isolation, shyness to contact with the community at large and backwardness.
  • Along with these, some tribal groups have some specific features such as dependency on hunting, gathering for food, having pre-agriculture level of technology, zero or negative growth of population and extremely low level of literacy.
  • These groups are called Particularly Vulnerable Tribal Groups.

Characteristics of PVTGs

  • In 1973, the Dhebar Commission created Primitive Tribal Groups (PTGs) as a separate category, who are less developed among the tribal groups.
  • In 2006, the GoI renamed the PTGs as Particularly Vulnerable Tribal Groups (PVTGs).
  • PVTGs have some basic characteristics -they are mostly homogenous, with a small population, relatively physically isolated, social institutes cast in a simple mould, absence of written language, relatively simple technology and a slower rate of change etc.

PVTGs in India

  • In this context, in 1975, the GoI initiated to identify the most vulnerable tribal groups as a separate category called PVTGs and declared 52 such groups.
  • In 1993 an additional 23 groups were added to the category, making it a total of 75 PVTGs out of 705 STs, spread over 17 states and 1 UT in the country (2011 census).

Identifying PVTGs

  • PVTGs are more vulnerable among the tribal groups.
  • Due to this factor, more developed and assertive tribal groups take a major chunk of the tribal development funds, because of which PVTGs need more funds directed for their development.
  • Government of India designed a procedure to identify PVTGs.
  • According to the procedure, the state governments or UT governments submit proposals to the Central Ministry of Tribal Welfare for identification of PVTGs.
  • After ensuring the criteria is fulfilled, the Central Ministry selects those groups as PVTGs.

For additional information, navigate to the page:

PVTGs

http://vikaspedia.in/social-welfare/scheduled-tribes-welfare/primitive-vulnerable-tribal-groups

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

EBPG quota

Note4Students

From UPSC perspective, the following things are important :

Prelims level : EBPG Quota

Mains level : Reservations

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Bills Concerning marginalised sections shpuld be inclusive and comprehensive.

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Recent judgement on quota in promotion tries to balance efficiency and social Justice.

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.”

 

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Sub-categorization of OBCs

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Various commissions mentioned in the newscard

Mains level : Sub-categorization of OBCs

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] The legacy of Ambedkar

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Fundamental Rights

Mains level : Need for upholding Ambedkar's idea of Social Justice

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.

 

 

 

 

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Proposed amendment to Indian Forest Act would deepen injustice

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Forest Rights Act

Mains level : Issues over Tribal Rights

  • Recently the Supreme Court, hearing a petition filed by wildlife conservationists and former forest department officials, directed state governments to evict “encroachers” or the “illegal” forest dwellers.
  • India’s forest dwellers were left undefended as the threat of an eviction from their habitation hovered over them.

Indian Forest Act, 1927 (IFA)

  1. The Indian Forest Act, 1927 was largely based on the British made Indian Forest Act of 1878.
  2. Both the 1878 act and the 1927 one sought to consolidate and reserve the areas having forest cover, or significant wildlife, to regulate movement and transit of forest produce, and duty leviable on timber and other forest produce.
  3. It also defines the procedure to be followed for declaring an area to be a Reserved Forest, a Protected Forest or a Village Forest.
  4. It defines what is a forest offence, what are the acts prohibited inside a Reserved Forest, and penalties leviable on violation of the provisions of the Act.
  5. Reserved Forest is an area mass of land duly notified under the provisions of India Forest Act or the State Forest Acts having full degree of protection. In Reserved Forests, all activities are prohibited unless permitted.

Ambiguity over Encroacher

  • As per the new draft, forest officials have been given the absolute authority to shoot tribals for “violation of laws”.
  • If a forest guard kills an “offender”, the move will invite no prosecution by the state governments without first initiating an inquiry into the matter under an executive magistrate.
  • Under the new amendment, forest departments can also declare any forest as reserved and alienate the forest-dwelling communities from their ancestral lands.
  • This will have a terrible effect on the tribal population, who are struggling to make both ends meet.

Democratic governance of Forests in India

  • During the 1980s and 1990s, at least the Centre showed some kind of sympathy for the tribals, as a result of which important legislations like FRA and the Panchayat (Extension to Scheduled Areas) Act, 1996, or PESA, were enacted.
  • In India, forest governance has turned significantly democratic in the past few years.
  • Back in 1976, the National Commission on Agriculture recommended that the tribals should be chased out. On the basis of that, the Forest (Conservation) Act, 1980 came into being.
  • However, through the National Forest Policy of 1988, the Centre recognised the symbiotic relationship between tribals and forests for the first time.
  • This was then consolidated with the passage of the Forest Rights Act (FRA), 2006, when the Centre agreed that historical injustice had been committed and tried to undo the wrong.
  • But with the proposed amendment, the injustice will be deeper.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : EWS is alreday represented more than 10% in higher education.

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Explained: Forest Rights Act

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Various Forest Rights Acts and their provisions

Mains level: Repercussions of eviction of forest dwellers from their rights


News

Background

  • The Supreme Court put on hold its recent order asking states to evict forest-dwellers whose claims on land had been rejected under the Forest Rights Act (FRA), 2006.
  • The court’s decision to review its earlier verdict which would have displaced more than a million people from their homes in the forests, is a welcome move.
  • The SC acknowledged the need to ask whether due processes were followed by gram sabhas and state authorities before the claims for forest rights were rejected.

Colonial Legacy of the issue

  • In the colonial era, the British diverted abundant forest wealth of the nation to meet their economic needs.
  • While procedure for settlement of rights was provided under statutes such as the Indian Forest Act, 1927, these were hardly followed.
  • As a result, tribal and forest-dwelling communities, who had been living within the forests in harmony with the environment and the ecosystem, continued to live inside the forests in tenurial insecurity.

The Forest Rights Act

  • The symbiotic relationship between forests and forest-dwelling communities found recognition in the National Forest Policy, 1988.
  • The policy called for the need to associate tribal people in the protection, regeneration and development of forests.
  • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, was enacted to protect the marginalised socio-economic class of citizens and balance the right to environment with their right to life and livelihood.

Provisions of the 2006 Act

  • The Act recognizes that tribal and other traditional forest-dwelling communities would be hard put to provide documentary evidence for their claims.
  • Rule 13 of the Act, therefore, stipulates that the gram sabhas should consider more than one evidence in determining forest rights.
  • The rule sanctions a wide range of evidence, including “statements by village elders”, “community rights” and “physical attributes such as houses, huts and permanent improvements made to land such as levelling, bunds and check dams”.

Core of the problem

  • The recent order is based on affidavits filed by the States, which does not make clear whether the due process of law was observed before the claims were rejected.
  • The Centre argues that the rejection of claims is particularly high in the States hit by Left-Wing Extremism, where tribal population is high.
  • The forest land claims of these tribes and forest-dwellers are mostly rejected by the States.
  • Being poor and illiterate, living in remote areas, they do not know the appropriate procedure for filing claims.
  • The gram sabhas, which initiate the verification of their claims, are low on awareness of how to deal with them.
  • The rejection orders were not even communicated to these communities.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] Without land or recourse

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Various Forest Rights Acts and their provisions

Mains level: Supreme Court Order on  Eviction of forest dwellers and it’s constitutional validity


NEWS

CONTEXT

Supreme court has ordered the eviction of lakhs of people whose claims as forest dwellers have been rejected under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA.

Ramifications of such decision

  • That this order negates the claims of citizens under special protection of the Constitution, viz. the Scheduled Tribes and other vulnerable communities already pushed by gross governmental neglect precariously to the edge, is another matter altogether.
  • The question centres on the responsibility of the Supreme Court in upholding constitutional claims and equal citizenship.

The background

  • The order in question was issued in the case of Wildlife First & Ors v. Ministry of Forest and Environment & Ors.
  • The question before the court as stated in the order of 2016 when the matter was last heard related to “the constitutional validity of the [FRA] and also the questions pertaining to the preservation of forests in the context of the above-mentioned Act.”
  • The details regarding claims made under the FRA that were placed before the court by the petitioner in 2016 showed that of the 44 lakh claims filed before appropriate authorities in the different States, 20.5 lakh claims (46.5%) were rejected.
  • Obviously, a claim in the context of the above-mentioned Act is based on an assertion that a claimant has been in possession of a certain parcel of land located in the forest areas.”
  • A claim is made either for individual or community rights by the people/communities covered by the FRA. This is a plain reading of the Act, which is unambiguous on this score.

New Order

  • In the present order of February 2019, the Supreme Court specifically directs governments in 21 States by name to carry out evictions of rejected claimants without further delay and report on or before July 12.

Reasons Behind rejecting claims

  • According to the 2014 report of the High-Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities in India, constituted by the Government of India (Xaxa Committee), 60% of the forest area in the country is in tribal areas — protected by Article 19(5) and Schedules V and VI of the Constitution.
  • Xaxa Committee observed that “claims are being rejected without assigning reasons, or based on wrong interpretation of the ‘OTFD’ definition and the ‘dependence’ clause
    • Xaxa Committee observed that “claims are being rejected without assigning reasons, or based on wrong interpretation of the ‘OTFD’ definition and the ‘dependence’ clause,
    • because the land is wrongly considered as ‘not forest land’
    • only forest offence receipts are considered as adequate evidence.
    • The rejections are not being communicated to the claimants, and their right to appeal is not being explained to them nor its exercise facilitated.

Against The constitutional safeguards

  • The presence of Article 19(5)  in the Fundamental Rights, which specifically enjoins the state to make laws “for the protection of the interests of any Scheduled Tribe”, is vital.
  • Supreme Court ordered the eviction in complete disregard of this core and express fundamental right protection to Adivasis (as distinct from legal/statutory protection), which protects them from a range of state and non-state intrusions in Scheduled Areas as well as from the perennial threat of eviction from their homelands.

Conclusion

Supreme Court ordered the eviction in complete disregard of this core and express fundamental right protection to Adivasis (as distinct from legal/statutory protection), which protects them from a range of state and non-state intrusions in Scheduled Areas as well as from the perennial threat of eviction from their homelands

 

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

SC eviction order likely to impact 1.89 mn forest families

Note4students

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

From UPSC perspective, the following things are important:

Prelims level:  Forest Rights Act (FRA)

Mains level: Issue over forest dwelling rights


News

SC orders Expulsion

  • The Supreme Court has ordered time-bound expulsion of all those families whose claims under the Forest Rights Act had been rejected by the authorities.
  • The country-wide data on 1.89 million households comes from the November 2018 report compiled by the Union tribal affairs ministry.
  • This is the total number of claims to forest lands that have been rejected under the Forest Rights Act across all 35 states and union territories.

Problems of OTFDs

  1. One of the major limitations of the FRA is the differentiated eligibility of ST and Other Traditional Forest Dwellers (OTFDs) claimants.
  2. This is compounded by the ambiguity in the wording of the Act that has disadvantaged the latter severely.
  3. OTFDs are required to prove continuous residence or dependence in the areas being claimed for three generations (75 years).
  4. This dates back to a period when most of these areas were under princely states or zamindars, with no survey or land demarcation, and no government records.
  5. Thus, these equally deserving communities are unable to produce documentary evidence to support their claims.

Explained: Forest Rights Act (FRA)

  1. The legislation was passed in December 2006 by the UPA govt.
  2. It concerns the rights of forest-dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India.
  3. The Act grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the colonial forest laws.
  4. Eligibility to get rights under the Act is confined to those who “primarily reside in forests” and who depend on forests and forest land for a livelihood.
  5. Further, either the claimant must be a member of the Scheduled Tribes scheduled in that area or must have been residing in the forest for 75 years.

Various rights entitled

  1. Title Rights – Ownership to land that is cultivated by tribals or forest dwellers subject to a maximum of 4 hectares; ownership is only for land that is actually being cultivated by the concerned family, meaning that no new lands are granted.
  2. Use Rights – To minor forest produce (also including ownership), to grazing areas, to pastoralist routes, etc.
  3. Relief and Development Rights – To rehabilitation in case of illegal eviction or forced displacement; and to basic amenities, subject to restrictions for forest protection.
  4. Forest Management Rights – To protect forests and wildlife.

Agencies Involved

  1. The Act provides that the gram sabha, or village assembly, will initially pass a resolution recommending whose rights to which resources should be recognised.
  2. This resolution is then screened and approved at the level of the sub-division (or taluka) and subsequently at the district level.
  3. The screening committees consist of three government officials (Forest, Revenue and Tribal Welfare departments) and three elected members of the local body at that level. These committees also hear appeals.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[pib] Development and Welfare Board for De-notified, Nomadic and Semi-Nomadic Communities

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Idate and Renke Commission Recommendations, NCDNT

Mains level: Welfare measures for the stigmatized de-notified and nomadic tribes


News

  • The Union Cabinet has given its approval for constitution of Development and Welfare Board for Denotified, Nomadic and Semi-nomadic Communities (DNCs).

Background

  1. These communities once branded as criminals under the colonial Criminal Tribes Act of 1871, the communities were ‘denotified’ in 1952.
  2. They continue to face stigma till this day.
  3. To this end, the condition of the denotified, nomadic and semi-nomadic communities merits special attention.
  4. The communities which have not been categorised as SC/ST/OBC do not get access to any welfare schemes.
  5. The earlier commissions — Renke and Idate — had tried to identify and list these communities but their major recommendations have not been implemented till date.

Welfare Board for DNTs

  1. The Government has decided to set up a Development and Welfare Board under the Societies Registration Act, 1860 under the aegis of Ministry of Social Justice and Empowerment.
  2. While most DNTs are spread across the SC, ST and OBC categories, some DNTs are not covered in any of these.
  3. These communities are hard to reach, less visible, and therefore frequently left out.
  4. It has, therefore, approved the setting up of a Committee under the Chairpersonship of Vice-Chairman, NITI Aayog.
  5. It will complete the process of identification of the Denotified, Nomadic and Semi-Nomadic Communities (DNCs) that have not yet been formally classified.

Back2Basics

National Commission for DNTs

  1. The Government in July 2014 had constituted National Commission for Denotified, Nomadic and Semi-Nomadic Tribes (NCDNT) for a period of three years to prepare a State-wise list of castes belonging to DNTs.
  2. The Commission recommended for the setting of up a Permanent Commission for these communities.
  3. Since most of the DNTs are covered in SC, ST or OBC, constitution of a Permanent Commission will not be very effective in implementing development programmes.
  4. Rather it will look at grievance redressal and will therefore be in conflict with mandate of existing commissions for SCs, STs and OBCs.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Centre to revamp minimum support for minor forest produce

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: MFPs and other forest products

Mains level: Issues related to forest rights


News

  • The Centre will frame new guidelines and extend the coverage of Minimum Support Price (MSP) for minor forest produce (MFP) scheme, which is aimed at benefiting a majority of 10 crore tribals.
  • The government is also considering increasing the MSP for various MFPs by around 40 per cent.

MSP for MFP scheme

  1. The MSP for MFP scheme was started in 2013 to ensure fair and remunerative prices to MFP gatherers.
  2. The new system would be decentralized with district collectors holding the responsibility of implementing the scheme.
  3. Moreover, self-help groups will be formed to sell MFP in village haats and value addition centres will be set up.
  4. The area of operation would be expanded to 307 districts across 27 states.

Why such scheme?

  1. Tribals depend on MFP for food, fodder, shelter, medicines and cash income.
  2. It provides them critical subsistence during lean seasons, particularly for primitive tribal groups such as hunter, gatherers, and the landless.
  3. In fact, according to Planning Commission data, tribals derive 20-40 per cent of their annual income from MFP.

Need for proper implementation

  1. While it has been more than five years since the scheme was launched, it has not been implemented properly.
  2. Despite the MFP rights being given to tribal communities under the Forest Rights Act, many states have nationalized MFPs like tendu, monopolising their trade, which is against the law.
  3. The allocations made under the scheme have over the years been heavily under-utilized, so much that around 90 per cent of the funds since the inception of the plan have remained unspent.

Back2Basics

Forest Produce

  1. The essential condition to be qualified as a forest produce is that the products should be either found in or be brought from forest.
  2. Section 2(4) of the Indian Forest Act 1927 defines only “forest-produce” and this term connotes to those products whether found in, or brought from a forest such as
  • timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, kuth and myrabolams,
  • trees and leaves, flowers and fruits, and all other parts or produce of trees,
  • plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,
  • wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and
  • peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils), and all products of mines or quarries;

Minor Forest Produce

  • Minor Forest Produce (MFP) is a subset of forest produce and got a definition only in 2007 when the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, was enacted.
  • Section 2(i) of the said Act defines a Minor Forest Produce (MFP) as all non-timber forest produce of plant origin and includes bamboo, brushwood, stumps, canes, Tusser, cocoon, honey, waxes, Lac, tendu/kendu leaves, medicinal plants and herbs, roots, tuber and the like.
  • ***Thus, the definition of “minor forest produce” included bamboo and cane, thereby changing the categorization of bamboo and cane as “trees” under the Indian Forest Act 1927.
  • ***Now, Bamboo is taxonomically a grass now ceases to be a tree as per the ordinance promulgated by the President in 2017.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[pib] Constitutional and Legislative Measures to Protect and Safeguard Land Rights of STs

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Various Acts and their provisions

Mains level: Issue of Tribal Rights and various safeguards


News

  • The Scheduled Tribes (STs) have been the most marginalized, isolated and deprived population.
  • To protect and safeguarding the land rights and other rights of Scheduled Tribes, following constitutional and legislative measure have been put in place:

I. Forest Rights

  • The Recognition of Forest Rights Act, 2006 to recognize and vest the forest rights and occupation in forest land to forest dwelling Scheduled Tribes.

II. Fair Compensation

  • Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 safeguards against displacement of Scheduled Tribes.
  • Special provisions have been made for Scheduled Castes and Scheduled Tribes under Sections 41 and 42 of the Act, which protect their interests.
  • The RFCTLARR Act, 2013 also lays down procedure and manner of rehabilitation and resettlement.

III. PESA Act

  • The Panchayats (Extension to Scheduled Areas) Act, 1996 , provides that the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas.
  • The actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State Level.

IV. Fifth Schedule

  • Constitutional provisions under Schedule – V provide for safeguards against displacement of tribal population because of land acquisitions etc.
  • The Governor of the State, having scheduled Areas, is empowered to prohibit or restrict transfer of land from tribals and regulate the allotment of land to members of the Scheduled Tribes in such cases.
  • Land being a State subject, various provisions of rehabilitation and resettlement as per the RFCTLARR Act, 2013 are implemented by the concerned State Governments.

V. Legal Services

  • The Legal Services Authorities Act, 1987 provides for legal services to members of Scheduled Tribes.

VI. Prevention of Atrocities Act

  • The SCs and the STs (Prevention of Atrocities) Act, 1989” has been introduced to prevent the commission of offences of atrocities.
  • It aims to provide for the trial of such offences and for the relief of rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.
  • Wrongfully dispossessing members of SCs and STs from their land or premises or interfering with the enjoyment of their rights, including forest rights, over any land or premises or water or irrigation facilities or destroying the crops or taking away the produce there from amount to atrocities and are offence.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Explained: The Dard Aryans of Ladakh: who are this tribe, what are their concerns?

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Dard Aryan Tribe

Mains level: Issue of extinction of PVTGs in India


Context

  1. ‘Dard Aryan’ is not among the list of notified Schedule Tribes, clarified the Tribal Affairs Ministry.
  2. The Ministry has not formally received any charter of demands from the concerned State Government for seeking financial help for preservation of their cultural heritage.

Who are the Dard Aryans?

  1. Some 200 km from Leh are the villages of Dha, Hanu, Garkone and Darchik on both sides of the Indus River, inhabited by the Buddhist Dard Tribes.
  2. The villages are together called the “Aryan valley”.
  3. The community now numbers about 4,000.
  4. The word ‘Dard’ is derived from a Sanskrit word, ‘Daradas’, which means people who live on hillsides.
  5. People of this region are culturally and linguistically different from those in other parts of Ladakh.
  6. There is a line of thought that the “Aryans of Ladakh” or the “Brokpas” might have descended from soldiers in Alexander’s army who had come to the region over 2,000 years ago.

Tradition and Customs

  1. They rear goat and sheep for milk and meat, and their festivals are based on the solar calendar.
  2. Their traditions go back 5,000 years; those who still follow the original customs worship trees, rivers and mountains.
  3. These tribals are mainly dependent on agriculture; the apricots grown here are considered among the best in the world and there are 12 varieties of grapes in the region.
  4. Grape-wine is very popular in the “Aryan valley”.

What Concerns these Dard Aryans?

I. Urbanization

  1. The tribals perceive a threat to the heritage of the community owing to modernization, migration and religious conversion.
  2. Of late, the Dard men have been migrating to other parts of the region (in search of livelihood) and marrying outside the tribe.
  3. The tribe is struggling to find a balance between modernity and traditional values.

II. Losing Identity

  1. Over the last few decades, many of them have embraced Islam or Buddhism.
  2. The community prohibits marriage with outsiders to keep the gene pool intact.

III. Geographic limitations

  1. Also, after the Kargil War, development work in this region has been restricted.
  2. Some of the areas of the Aryan valley are out of bounds for outsiders, since it borders Pakistan-occupied Kashmir.

IV. Lack of Education

  1. There are only three high schools in their villages and very limited resources for livelihood — mainly because of the harsh weather and difficult terrain.
  2. As such, they have no option but to migrate to cities for higher education and employment.

Addressing their Concerns

  1. They have demanded that the government set up a tribal hostel and declare the “Aryan valley” a heritage village to boost tourism.
  2. But the only way to sustain them is by giving them special status and helping make them self-sufficient so that they don’t have to migrate.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

New panel for welfare of nomadic communities

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: Idate and Renke Commission Recommendations

Mains level: Welfare measures for the stigmatized de-notified and nomadic tribes


News

Panel for Nomadic Tribes

  1. A committee will be set up under NITI Aayog to complete the task of identifying de-notified, nomadic and semi-nomadic communities, especially as they move from place to place in search of a livelihood.
  2. These communities are hard to reach, less visible, and therefore, frequently left out.
  3. The committee will follow up on the work of the Renke Commission and the Idate Commission.
  4. A Welfare Development Board will also be set up under the Ministry of Social Justice and Empowerment to design and implement programmes for these hard-to-reach communities.

Why such move?

  1. These communities once branded as criminals under the colonial Criminal Tribes Act of 1871, the communities were ‘denotified’ in 1952.
  2. They continue to face stigma till this day.
  3. To this end, the condition of the denotified, nomadic and semi-nomadic communities merits special attention.
  4. The communities which have not been categorised as SC/ST/OBC do not get access to any welfare schemes.
  5. The earlier commissions — Renke and Idate — had tried to identify and list these communities.
  6. The major recommendations of the commissions have not been implemented till date.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[op-ed snap] Why isolation of indigenous groups is crucial today

Note4students

Mains Paper 1: Indian Society | Salient features of Indian Society, Diversity of India.

From UPSC perspective, the following things are important:

Prelims level: Basics knowledge of indigenous groups.

Mains level: The news-card analyses the need for the isolation of the indigenous groups, in a brief manner.


Context

  • The remote, coral-fringed North Sentinel Island made headlines last year, after an American Christian missionary’s covert expedition to convert its residents—the world’s last known pre-Neolithic tribal group—ended in his death.
  • The episode has cast a spotlight on the threats faced by the world’s remote indigenous groups.

Sentinelese tribe: most isolated tribe

  • The Sentinelese people targeted by the slain evangelist John Allen Chau are probably the most isolated of the world’s remaining remote tribes.
  • These people are keen to stay that way.
  • They shoot arrows to warn off anyone who approaches their island, and attack those, like Chau, who ignore their warnings.
  • However, this has not always been like this. When Europeans first made contact with the Sentinelese, the British naval commander Maurice Vidal Portman described them in 1899 as “painfully timid.
  • Tribes like the Sentinelese have learned to associate outsiders with the ghastly violence and deadly diseases brought by European colonization.

Effect of British colonialism on indigenous tribes

  • British colonial excesses whittled down the aboriginal population of the Andaman Islands, which includes North Sentinel Island, from more than two dozen tribes 150 years ago to just four today.
  • The tribes that escaped genocide at the hands of the colonizers did so largely by fleeing to the most inaccessible parts of jungles.

No Contact policy

  • After the decimation of indigenous peoples under colonial rule, the countries where isolated tribes remain—including Bolivia, Brazil, Ecuador, India, and Peru—have pursued a “no contact” policy.
  • This policy is anchored in laws that protect indigenous people’s rights to ancestral lands and to live in seclusion, and reinforced by an international convention obligating governments to protect these communities’ lands, identities, penal customs, and ways of life.

Is there a need to reverse the no contact policy?

  • It is illegal for outsiders to enter India’s tribal reserves.
  • But the threat to the Sentinelese people and to all isolated tribes is far from neutralized, as some have taken Chau’s death as an opportunity to argue that we should reverse the policies protecting isolated tribes.
  • The reasons for some could be of good intentions such as to provide access to modern technology, education, and health care but for others it is not.
  • For example, Brazil’s new far-right President Jair Bolsonaro has threatened to repeal constitutional safeguards for aboriginal lands in order to expand developers’ access to the Amazon rainforest.

Why the need for isolation?

  • The first waves of European colonization caused a calamitous depopulation of indigenous societies through violence and the introduction of infectious diseases, like smallpox and measles, to which the natives had no immunity.
  • In Brazil, three-quarters of the indigenous societies that opened up to the outside world have become extinct, with the rest suffering catastrophic population declines.
  • Over the last five centuries, Brazil’s total indigenous population has plummeted from up to 5 million to fewer than 900,000 people, with the introduction of constitutional protections for indigenous territories in the late 1980s aimed at arresting the decline.
  • In the Andaman chain, of the four tribes that survive, the two that were forcibly assimilated by the British have become dependent on government aid and are close to vanishing.
  • Indigenous communities’ combined share of the world population is now at just 4.5%.

Will the isolation help increase their population?

  • Leaving secluded tribes alone is no guarantee that they will survive.
  • These highly inbred groups are already seeing their numbers dwindle, and face the spectre of dying out completely.
  • But they will probably die faster if we suddenly contact them.

Consequences of Extinction of these isolated tribes

  • These tribes might be isolated, but their demise will have serious consequences.
  • With their reverence for and understanding of nature, such groups serve as the world’s environmental sentinels, safeguarding 80% of global diversity and playing a critical role in climate change mitigation and adaptation.
  • When the devastating 2004 Indian Ocean tsunami struck, more than a quarter-million people died across 14 countries, but the two isolated Andaman tribes, which rely on traditional warning systems, suffered no known casualties.
  • However, the indigenous societies have been pitted against loggers, miners, crop planters and other interlopers.
  • In the last 12 years alone, according to satellite data, Brazil’s Amazon Basin has lost forest cover equivalent in size to the entire Democratic Republic of Congo.

Conclusion

  • Indigenous people are an essential element of cultural diversity and ecological harmony.
  • They are also a biological treasure for scientists seeking to reconstruct evolutionary and migratory histories.
  • The least the world can do is to let them live in peace in the ancestral lands that they have honoured and preserved for centuries.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

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.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

[pib] Cabinet approves revision in list of Scheduled Tribes of Arunachal Pradesh

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: Tribes mentioned in the newscard

Mains level: Not Much


News

  • The Union Cabinet has approved the introduction of an amendment bill namely in the Constitution (Scheduled Tribes) Order, 1950 so as to modify the list of Scheduled Tribes (STs) of Arunachal Pradesh.

Changes will be made in list of STs of Arunachal Pradesh

  • Deletion of ‘Abor’ in serial No. 1, as it is the same as ‘Adi’ in Serial No. 16.
  • Replace Tai Khamti’ instead of ‘Khampti’ at serial No. 6.
  • Inclusion of ‘Mishmi-Kaman’ (Miju Mishmi), Idu (Mishmi) and Taraon (Digaru Mishmi) in serial No. 8.
  • Inclusion of Monpa, Memba, Sartang, Sajolong (Miji) in serial No. 9 in lieu of ‘Momba’.
  • Inclusion of ‘Nocte’, “Tangsa’, Tutsa’, ‘Wancho’ in lieu of ‘Any Naga Tribes’ in serial No. 10 in list of Scheduled Tribes of Arunachal Pradesh.

Rationale behind the proposed Amendments

  • Deletion of Abor – Removal of duplication
  • Replace Khampti – There is no tribe called ‘Khampti’
  • Inclusion of Mishmi-Kaman, Idu and Taraon – Existing entry is only of ‘Mishmi’.  There is reportedly no such community.
  • Inclusion of Monpa, Memba, Sartang, Wancho – Existing entry is of ‘Any Naga Tribes’.  These are reportedly the only Naga tribes in the State.
  • Inclusion of Nocte, Tangsa, Tutsa, Wancho – Existing entry is of ‘Any Naga Tribes’.  These are reportedly the only Naga tribes in the State.
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