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Subject: Polity

  • Judiciary and challenges ahead

    The relations between the judiciary and executive have always been tumultuous. This article analyses the changes in the judiciary’s relations with the executive after 2014.

    Relations with executive

    • In 2014 government blocked the elevation of Gopal Subramanium as a judge of the apex court.
    • A month later, the government introduced a bill to create the National Judicial Appointments Commission (NJAC).
    • The NJAC Act was passed by Parliament in December 2014.
    • In October 2015, the SC struck down the NJAC Act, ruling that it would affect the independence of the judiciary vis-Ă -vis the executive.
    • Following striking down of the NJAC Act, the SC directed the government to propose a new memorandum of procedure (MoP) for appointments to the higher judiciary.
    • The draft government sent to the Court allowed the government to reject any name recommended by the Collegium on grounds of national security and made it compulsory for the Collegium to justify its selection.
    • The Collegium rejected these clauses and the MoP could never be finalised.
    • The government sat on the appointments that the Collegium had recommended months ago.
    •  In April 2016, 170 proposals for appointments to the high courts were pending at that time.

    SC’s perceived reluctance  to question executive after 2017

    • Appointments and transfers ceased to be a problem because the Collegium accepted the appointments and transfers.
    • The Court considered that the Aadhaar Bill could be passed as a Money Bill, validated the Electoral Bonds Act.
    • The SC also abstained from dealing with sensitive issues like the abolition of Article 370 or the Citizenship Amendment Act.
    • This modus operandi of the court, when applied to Aadhaar, created a fait accompli.

    3 questions over the SC’s role

    • 1) The court’s reluctance to question the government on contentious issues — from J&K to misuse of sedition law or the NRC — is disturbing.
    • 2) The manner in which the judiciary has addressed allegations against itself — Kalikho Pul or Prasad Education Trust or on sexual harassment — gives a handle to those in power.
    • 3) The independence of the judiciary is inevitably affected by the acceptance of post-retirement jobs.

    Consider the question “While playing its role, judiciary faces several challenges from the other organs of the democracy. In light of this, examine the challenges judiciary in India faces from the executive.”

    Conclusion

    Supreme Court’s apparent reluctance to question government on consequential issues affects its moral authority.

  • Kesavananda Bharati: The petitioner who saved democracy

    Kesavananda Bharati (80), the sole unwitting petitioner in the historic Fundamental Rights case which prevented the nation from slipping into a totalitarian regime has passed away.

    Who was Kesavananda Bharati?

    • Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961.
    • He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970.

    What was his case?

    • A 13-judge bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.
    • The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges were stitched together by then CJI SM Sikri on the eve of his retirement.
    • However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna.

    What was the case about?

    • The case was primarily about the extent of Parliament’s power to amend the Constitution.
    • First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
    • Second, the court was deciding the constitutional validity of several other amendments.
    • Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
    • The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.
    • Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

    What did the court decide?

    • In its majority ruling, the court held that fundamental rights cannot be taken away by amending them.
    • While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
    • However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.
    • The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
    • Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.

    What is the basic structure doctrine?

    • The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
    • The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes.
    • Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
    • In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.
    • What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as the basic structure, the list is not exhaustive.

    What was the fallout of the verdict?

    • Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive.
    • Then government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed CJI after Justice Sikri.
    • The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.
    • But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of modern democracy.

    Significance of the Judgement

    • The judgment introduced the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism.
    • The verdict upheld the power of the Supreme Court to judicially review laws of Parliament.
    • It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.
    • The Emergency was proclaimed shortly after the judgment was delivered on April 24, 1973.
    • It proved timely and thwarted many an attempt on democracy and dignity of an individual during those dark years.

  • Scrutinising government’s work in limited monsoon session

    The article analyses the impact of pandemic on the functioning legislatures and issues its implications.

    Context

    • Due to coronavirus pandemic, several States have held very short sessions in which they ratified a number of ordinances and hardly questioned any executive action over the last few months.

    Role of Parliament and Court

    • The government has the mandate to take decisions and perform various public tasks.
    • Government in turn is accountable to the legislature which can question it, and, as an extreme step, even replace it.
    • The legislature is accountable to citizens through regular elections.
    • Finally, constitutional courts are expected to ensure that all actions are made within the boundaries of the Constitution and laws made by the legislature.

    Dilution of the role of Parliament in  India

    • Indian Parliament has allowed its role to be diluted over the last few decades.
    • It has not questioned and monitored the activity of the executive.
    • Comparison with British Parliament: The United Kingdom’s joint parliamentary committee on human rights examined the proposals of a contact tracing app.
    • The committee recommended that an app could be used only if there was specific primary legislation to enable it. 
    •  India, in contrast, rolled out Aarogya Setu through executive decision, and has created a grey zone on whether it is mandatory or not.
    • Parliament should recover lost ground by fulfilling its constitutionally mandated role.

    Lack of parliamentary oversight during pandemic

    • Parliament will be meeting after 175 days.
    • 175 days’ is the longest gap without intervening general elections and just short of the six-month constitutional limit.
    • During the pandemic, over 900 central and nearly 6,000 State government notifications have been issued
    • Parliamentary committees did not meet for about four months.
    • This is unlike many other countries where both the plenary and committees have adopted technology to enable members to participate from home.

    Judicial intervention in policy issues

    • The lack of parliamentary oversight has been compounded by judicial intervention in many policy issues.
    •  For example, the government’s actions related to the lockdown should have been questioned by Parliament.
    • However, this was taken to the Supreme Court, which is not equipped and mandated to balance policy options.
    • Directions of the Court have to be followed which removes flexibility needed to tackle evolving issues with implementation.
    • Consider another case, Court decided to limit the period in which telecom companies have to pay their dues to the government, and overruled a cabinet decision.
    • This is a policy matter that balances interests of telecom companies, consumers and banks.
    • This issue is best judged by the government with oversight by Parliament.
    • And court should step in if there is an illegality.

    Way forward

    • Several events have taken place over the last six months that need thorough discussion.
    • This includes ways to tackle the spread of the coronavirus, economic growth which has had a sharp fall in the first quarter of this fiscal year.
    • This has far-reaching implications for creating jobs, stability of the banking system, and government finances.
    • The government is likely to bring in a supplementary budget; indeed, a fresh look at the Union Budget may be required given the changes in basic assumptions since January.
    • The situation at the China border also needs to be discussed.

    Consider the question “Anlyse the impact of pandemic on the key organs of the democracy.”

    Conclusion

    Parliamentarians have a duty towards Indian citizens to fulfil their role in scrutinising the work of the government and guiding policy. Despite the curtailed session and the constraints due to the coronavirus, they should make the best of the limited time to do so. They need to wrest back their rightful role in our democracy.

  • New Official Languages in J&K

    The Union Cabinet has approved a Bill to introduce Hindi, Kashmiri and Dogri as official languages in Jammu and Kashmir, in addition to Urdu and English. As of now, the official language is Urdu and Kashmiri is recognised as a regional language.

    Try this PYQ:

    Q.Consider the following languages:

    1. Gujarati
    2. Kannada
    3. Telugu

    Which of the above has/have been declared as ‘Classical Language/ Languages’ by the Government?

    (a) 1 and 2 only

    (b) 3 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    Languages in J&K

    • In the undivided Jammu and Kashmir state, various ethnicities spoke Kashmiri, Pahari, Gojri, Ladakhi, Dogri, Balti and Punjabi as their mother tongues.
    • Urdu and Hindi had become a means for inter-community communication.
    • In 1889, Maharaja Pratap Singh, the third ruler of the Hindu Dogra dynasty, replaced Persian with Urdu as the court language.
    • It was an anomaly that the three languages — Dogri, Hindi and Kashmiri — which are spoken by nearly 70 per cent of the population of Jammu and Kashmir were not approved for use in official business.

    Official languages in India

    • Article 343 of the Indian constitution stated that the official language of the Union is Hindi in Devanagari script instead of the extant English.
    • Later, a constitutional amendment, The Official Languages Act, 1963, allowed for the continuation of English alongside Hindi in the Indian government indefinitely until legislation decides to change it.
    • The form of numerals to be used for the official purposes of the Union is “the international form of Indian numerals”, which are referred to as Arabic numerals in most English-speaking countries.
    • Despite the misconceptions, Hindi is not the national language of India; the Constitution of India does not give any language the status of the national language.
    • The Eighth Schedule of the Indian Constitution lists 22 languages, which have been referred to as scheduled languages and given recognition, status and official encouragement.

    Other classical languages

    • In addition, the Government of India has awarded the distinction of classical language to Kannada, Malayalam, Odia, Sanskrit, Tamil and Telugu.
    • Classical language status is given to languages which have a rich heritage and independent nature.

  • Kalasa-Banduri Dam Project

    India is on the brink of an acute water crisis, which has, to an extent, fabricated a looming threat of trans-boundary water conflicts. The conflict on the Mandovi / Mahadayi River— flowing through Goa, Karnataka and Maharashtra— is one such example.

    Try this PYQ:

    What is common to the places known as Aliyar, Isapur and Kangsabati?

    (a) Recently discovered uranium deposits

    (b) Tropical rain forests

    (c) Underground cave systems

    (d) Water reservoirs

    Kalasa-Banduri Project

    • The project undertaken by the Karnataka government proposes to divert Mandovi river water from Kalasa and Banduri canals into the Malaprabha river in the state.
    • The project received clearance from the Centre in 2002. It aims to construct a total of 11 dams on the river Mandovi.
    • The diversion of water from Kalasa and Banduri nullahs, however, has been the point of contention between Karnataka and Goa, with the latter claiming it would strip the state of its flora and fauna.

    The conflict

    • The Mandovi originates from Karnataka’s Belgaum district.
    • The Mandovi river basin falls into the states of Goa, Karnataka and Maharashtra.
    • The river is 81 kilometres (km) in length; 35 km of which flows in Karnataka, 1 km in Maharashtra and 45 km in Goa.
    • The seeds of the conflict were sowed over 40 years ago: In 1985, Karnataka initially explored a 350 megawatt-hydro-electric project to divert 50 per cent of the Mandovi river water in Karnataka for irrigation.
    • The plan was also to allow a steady flow of water from the power project’s storage dam after using the water for irrigation purposes in Karnataka.
    • This would have served to drinking water and irrigation purposes in Goa as well.

  • What are Question Hour and Zero Hour?

    The Lok Sabha Secretariat officially released the schedule for the monsoon Parliament session with Question Hour being dropped. Zero Hour will also be restricted in both Houses.

    This newscard is very narrative in its form and scope.

    Q.Discuss the various instruments of Parliamentary Control in India.

    What is Question Hour, and what is its significance?

    • Question Hour is the liveliest hour in Parliament. It is during this one hour that MPs ask questions of ministers and hold them accountable for the functioning of their ministries.
    • Prior to Independence, the first question asked of government was in 1893. It was on the burden cast on village shopkeepers who had to provide supplies to touring government officers.
    • The questions that MPs ask are designed to elicit information and trigger suitable action by ministries.
    • Over the last 70 years, MPs have successfully used this parliamentary device to shine a light on government functioning.
    • Their questions have exposed financial irregularities and brought data and information regarding government functioning to the public domain.
    • With the broadcasting since 1991, Question Hour has become one of the most visible aspects of parliamentary functioning.

    And what is Zero Hour?

    • While Question Hour is strictly regulated, Zero Hour is an Indian innovation. The phrase does not find mention in the rules of procedure.
    • The concept of Zero Hour started organically in the first decade of Indian Parliament when MPs felt the need for raising important constituency and national issues.
    • During the initial days, Parliament used to break for lunch at 1 pm.
    • Therefore, the opportunity for MPs to raise national issues without an advance notice became available at 12 pm and could last for an hour until the House adjourned for lunch.
    • This led to the hour being popularly referred to as Zero Hour and the issues being raised during this time as Zero Hour submissions.
    • Its importance can be gauged from the support it receives from citizens, media, MPs and presiding officers despite not being part of the rulebook.

    How is Question Hour regulated?

    • Parliament has comprehensive rules for dealing with every aspect of Question Hour.
    • And the presiding officers of the two houses are the final authority with respect to the conduct of Question Hour.
    • For example, usually, Question Hour is the first hour of a parliamentary sitting.

    What kinds of questions are asked?

    • Parliamentary rules provide guidelines on the kind of questions that can be asked by MPs.
    • Questions have to be limited to 150 words. They have to be precise and not too general.
    • The question should also be related to an area of responsibility of the GoI.
    • Questions should not seek information about matters that are secret or are under adjudication before courts.
    • It is the presiding officers of the two Houses who finally decide whether a question raised by an MP will be admitted for answering by the government.

    How frequently is Question Hour held?

    • The process of asking and answering questions starts with identifying the days on which Question Hour will be held.
    • At the beginning of Parliament in 1952, Lok Sabha rules provided for Question Hour to be held every day. Rajya Sabha, on the other hand, had a provision for Question Hour for two days a week.
    • A few months later, this was changed to four days a week. Then from 1964, Question Hour was taking place in Rajya Sabha on every day of the session.
    • Now, Question Hour in both Houses is held on all days of the session.
    • But there are two days when an exception is made. There is no Question Hour on the day the President addresses MPs from both Houses in the Central Hall.
    • Question Hour is not scheduled either on the day the Finance Minister presents the Budget.

    How does Parliament manage to get so many questions answered?

    • To streamline the answering of questions raised by MPs, the ministries are put into five groups. Each group answers questions on the day allocated to it.
    • For example, in the last session, on Thursday the Ministries of Civil Aviation, Labour, Housing, and Youth Affairs and Sports were answering questions posed by Lok Sabha MPs.
    • MPs can specify whether they want an oral or written response to their questions.
    • They can put an asterisk against their question signifying that they want the minister to answer that question on the floor. These are referred to as starred questions.
    • After the minister’s response, the MP who asked the question and other MPs can also ask a follow-up question.
    • This is the visible part of Question Hour, where you see MPs trying to corner ministers on the functioning of their ministries on live television.

    How do ministers prepare their answers?

    • Ministries receive the questions 15 days in advance so that they can prepare their ministers for Question Hour.
    • They also have to prepare for sharp follow-up questions they can expect to be asked in the House.
    • Governments’ officers are close at hand in a gallery so that they can pass notes or relevant documents to support the minister in answering a question.
    • When MPs are trying to gather data and information about government functioning, they prefer the responses to such queries in writing.
    • These questions are referred to as unstarred questions. The responses to these questions are placed on the table of Parliament.

    Are the questions only for ministers?

    • MPs usually ask questions to hold ministers accountable. But the rules also provide them with a mechanism for asking their colleagues a question.
    • Such a question should be limited to the role of an MP relating to a Bill or a resolution being piloted by them or any other matter connected with the functioning of the House for which they are responsible.
    • Should the presiding officer so allow, MPs can also ask a question to a minister at a notice period shorter than 15 days.

    Is there a limit to the number of questions that can be asked?

    • Rules on the number of questions that can be asked in a day have changed over the years.
    • In Lok Sabha, until the late 1960s, there was no limit on the number of unstarred questions that could be asked in a day.
    • Now, Parliament rules limit the number of starred and unstarred questions an MP can ask in a day.
    • The total numbers of questions asked by MPs in the starred and unstarred categories are then put in a random ballot.
    • From the ballot in Lok Sabha, 20 starred questions are picked for answering during Question Hour and 230 are picked for written answers.
    • Last year, a record was set when on a single day, after a gap of 47 years, all 20 starred questions were answered in Lok Sabha.

    Have there been previous sessions without Question Hour?

    • Parliamentary records show that during the Chinese aggression in 1962, the Winter Session was advanced.
    • The sitting of the House started at 12 pm and there was no Question Hour held. Before the session, changes were made limiting the number of questions.
    • Thereafter, following an agreement between the ruling and the Opposition parties, it was decided to suspend Question Hour.

  • Mission Karmayogi for Civil Services Capacity Building

    The Union Cabinet gave its approval for Mission Karmayogi, a new national capacity building and performance evaluation programme for civil servants.

    Try this MCQ:

    Q.The Mission Karmayogi recently seen in news is related to:

    a) EPFO reforms

    b) Labour laws reforms

    c) Civil Services reforms

    d) Artisans and Handicrafts

    Mission Karmayogi

    • The mission is established under the National Programme for Civil Services Capacity Building (NPCSCB).
    • It is aimed at building a future-ready civil service with the right attitude, skills and knowledge, aligned to the vision of New India.
    • It is meant to be a comprehensive post-recruitment reform of the Centre’s human resource development, in much the same way as the National Recruitment Agency approved last week is pre-recruitment reform.

    Why such a mission?

    • The capacity of Civil Services plays a vital role in rendering a wide variety of services, implementing welfare programs and performing core governance functions.

    Major undertakings of the scheme

    • The scheme will cover 46 lakh, Central government employees, at all levels, and involve an outlay of â‚č510 crores over a five-year period, according to an official statement.
    • The programme will support a transition from “rules-based to roles-based” HR management so that work allocations can be done by matching an official’s competencies to the requirements of the post.
    • Apart from domain knowledge training, the scheme will focus on “functional and behavioural competencies” as well, and also includes a monitoring framework for performance evaluations.
    • Eventually, service matters such as confirmation after probation period, deployment, work assignments and notification of vacancies will all be integrated into the proposed framework.
    • The capacity building will be delivered through iGOT Karmayogi digital platform, with content drawn from global best practices rooted in Indian national ethos.

    Apex bodies under the mission

    • The Prime Minister’s Public Human Resource Council will be set up as the apex body to direct the reforms.
    • There will be an autonomous Capacity Building Commission to be established to manage the reformed system and harmonize training standards across the country so that there is a common understanding of India’s aspirations and development goals.
    • A wholly government-owned, not-for-profit special purpose vehicle will be set up to own and operate the digital platform and its content.

  • Need for a Common Electoral Roll

    The Prime Minister’s Office earlier this month held a meeting with representatives of the Election Commission and the Law Ministry to discuss the possibility of having a common electoral roll for elections to the panchayat, municipality, state assembly and the Lok Sabha.

    Try this question:

    Q.Discuss how a common electoral roll and simultaneous elections are ways to save the enormous amount of effort and expenditure on Elections in India.

    Electoral Rolls in India

    • In many states, the voters’ list for the panchayat and municipality elections is different from the one used for Parliament and Assembly elections.
    • The distinction stems from the fact that the supervision and conduct of elections in our country are entrusted with two constitutional authorities — the Election Commission (EC) of India and the State ECs.
    • Set up in 1950, the EC is charged with the responsibility of conducting polls to the offices of the President and Vice-President of India, and to Parliament, the state assemblies and the legislative councils.
    • The SECs, on the other hand, supervise municipal and panchayat elections. They are free to prepare their own electoral rolls for local body elections, and this exercise does not have to be coordinated with the EC.

    So do all states have a separate voters list for their local body elections?

    • Each SEC is governed by a separate state Act. Some state laws allow the SEC to borrow and use the EC’s voter’s rolls in toto for the local body elections.
    • In others, the state commission uses the EC’s voters list as the basis for the preparation and revision of rolls for municipality and panchayat elections.
    • Currently, all states, except UP, Uttarakhand, Odisha, Assam, MP, Kerala, Odisha, Assam, Arunachal Pradesh, Nagaland and the UT of Jammu and Kashmir, adopt EC’s rolls for local body polls.

    Why need a common electoral roll?

    • First, the common electoral roll is among the promises made by the govt. in its manifesto for the Lok Sabha elections last year.
    • It ties in with the party’s commitment to hold elections simultaneously to the Lok Sabha, state assemblies and local bodies, which is also mentioned in the manifesto.
    • The incumbent government has pitched a common electoral roll and simultaneous elections as a way to save an enormous amount of effort and expenditure.
    • It has argued that the preparation of a separate voters list causes duplication of essentially the same task between two different agencies, thereby duplicating the effort and the expenditure.
    • The pitch for a single voters list is not new. The Law Commission recommended it in its 255th report in 2015. The EC too adopted a similar stance in 1999 and 2004.

    How it can be implemented?

    • In the meeting called by the PMO, two options were discussed.
    • First, a constitutional amendment to Articles 243K and 243ZA that gives the power of superintendence, direction and control of preparation of electoral rolls and the conduct of local body elections to the SECs.
    • The amendment would make it mandatory to have a single electoral roll for all elections in the country.
    • Second, to persuade the state governments to tweak their respective laws and adopt the Election Commission’s (EC) voters list for municipal and panchayat polls.

  • New rules for Transaction of Business of the Govt. of UT of J&K Rules, 2019

    The Ministry of Home Affairs (MHA) has notified new rules for administration in the UT of Jammu and Kashmir that specify the functions of the Lieutenant Governor (LG) and the Council of Ministers.

    Tap to read more about: Reorganization of J&K

    New Rules for J&K

    • The new rules have been defined under Section 55 of the Jammu and Kashmir Reorganization Act, 2019.

    What are they?

    (1)Executive functions of the L-G

    • According to the rules the “police, public order, All India Services and anti-corruption” will fall under the executive functions of the L-G.
    • Chief Minister or the Council of Ministers will have no say in their functioning.

    (2)Minority Community interests

    • The proposals or matters which affect or are likely to affect peace and tranquillity or the interest of any minority community, the SCs, the STs and the Backward Classes shall essentially be submitted to the LG through the Chief Secretary, under intimation to the CM, before issuing any orders.

    (3)Service Matters

    • The Council of Ministers, led by the CM, will decide service matters of non-All India Services officers, proposal to impose a new tax, land revenue, sale grant or lease of government property, reconstituting departments or offices and draft legislation.

    (4)Difference of Opinion

    • In case of difference of opinion between the L-G and a Minister when no agreement could be reached even after a month, the “decision of the Lieutenant Governor shall be deemed to have been accepted by the Council of Ministers”.

    (5)Relation with the Centre

    • According to the rules, “any matter which is likely to bring the Government of the UT into controversy with the Central Government or with any State Government” shall be brought to the notice of the L-G and the CM by the Secretary concerned through the Chief Secretary.
    • All communications received from the Centre, including those from the PM and other Ministers, shall be submitted by the Secretary to the Chief Secretary, the Minister in charge, the CM and the L-G for information after their receipt.

    (6)Various departments

    • Under the rules, there will be 39 departments in the UT, such as school education, agriculture, higher education, horticulture, election, general administration, home, mining, power, Public Works Department, tribal affairs and transport.

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

    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