Reservations and the Ninth Schedule: Lies and facts

The Red Queen broke the silence by saying to the White Queen, `I invite you to Alice’s dinner-party this afternoon.’
The White Queen smiled feebly, and said `And I invite you.’
`I didn’t know I was to have a party at all,’ said Alice; `but if there is to be one, I think I ought to invite the guests.’
`We gave you the opportunity of doing it,’ the Red Queen remarked.

                                                                                                      ---Through The Looking Glass 

Political parties including the Dravid Munnetra Kazhagam (DMK) had recently approached the Supreme Court of India regarding the application of 50% reservation for the Other Backward Classes (OBC) Quota to the State surrendered seats in medical undergraduate and postgraduate courses through the All India Quota. They had filed petitions under Article 32 of the Constitution of India. At the hearing the Court queried as to what fundamental right was breached in the acts forming the basis for filing of the petitions. Stating that a petition under Article 32 lies only against breaches of fundamental rights, the Court pointed out that reservation is not a fundamental right. That being so, the omission to reserve 50% in the AIQ seats for medical courses cannot be challenged directly in the Supreme Court. The petitions were disposed of with liberty to file appropriate matter in the High Court.

Reservation lies solely within the discretion of the State. If the State does not extend benefit of reservation, the matter cannot be agitated in Constitutional Courts, because reservation is not a fundamental right. The speaking order in the matter does not mention all of this, but the reporting of the news carried this bit, and the fact of the Supreme Court so observing was spread far and wide.

In February 2020, in the matter of Mukesh Kumar vs. State of Uttarakhand, the Supreme Court had declared in no uncertain terms that a policy of not extending reservation in a particular matter cannot be challenged in Courts. In the din of other newsworthy bits of information, this epoch making judgment was relegated to single column reports in newspapers. There was no noteworthy analysis of the news in the mainstream media. 

About the judgment in which the Supreme Court ruled that reservation is not a fundamental right. 

This fantastic bit of news for the open category was not widely noticed or commented upon, but the newspapers did report it. Promptly, the proponents of reservation fired salvoes of their own.  Noises, appropriate or otherwise were made. The causes for reservation and the justification for the same were reiterated. There is reason for taking note of these events now. The happenings in the Supreme Court regarding Tamilnadu pleas for reservation, and the dry opinion expressed by the Court during hearing prompted many reactions. Ramvilas Paswan, a big proponent of reservation and a longtime Minister in various governments, peremptorily called for action. “All political parties should come together to amend the Constitution to shield all reservation laws from judicial review,” he’s reported to have said. His demand to put all the reservation laws in the Ninth Schedule of the Constitution were of a piece with the earlier statement of his son, Chirag Paswan, himself a Member of Parliament and President of the Lok Janashakti Party; a constituent of the ruling National Democratic Alliance (NDA) dispensation.

Ramvilas Paswan, however, carried it further. He demanded that reservation be included in the fundamental rights. Most importantly, he lied about the antiquity of reservation, invoking Gandhi along with Ambedkar to (falsely) add antiquity and historicity to the idea of reservation. “Reservation is the result of the Poona Pact between Babasaheb Ambedkar and Mahatma Gandhi. If anyone raises ifs or buts about it now, they will be negating the Poona Pact,” The Hindu reports him as saying.  

A responsible and powerful leader, and a long standing Member of Parliament making this statement is not a coincidence or a spontaneous reaction to the event of the day.  These sort of statements, particularly to the media, are deliberately made as an agenda. A part of this agenda is false propaganda. Any event going against some idea, attitude or government policy is deliberately played up. The dual intention behind this propaganda is to confuse opponents of the idea and to encourage adherents and proponents of the policy.

Paswan’s statement has caused a stir amongst the open category. Messages are doing rounds of social media. The helplessness of the open category burdened by the ever increasing quota of reservation manifests itself in anger about the government. The goals of Paswan and his ilk are achieved merely by this. Yet, the more lasting effect will be that the enjoyment of the real news is denied to the open category. The very motive might well be to deprive a conversation about the fact that according to the Supreme Court, reservation is not a fundamental right. This article is an attempt to throw light on historical facts and principles of law applicable.

As held by the Supreme Court recently, in a reasoned judgment in Mukesh Kumar vs. The State of Uttarakhand, reservation is not a fundamental right. The idea of reservation in education and employment did not find place in the Constitution. It was later inserted as an exception to the fundamental right of equality, dubbed the first principle of the Constitution by Dr. Ambedkar. In reaction to this, Chirag Paswan had made the same noises as Ramvilas Paswan is making now.

Reservation is the biggest fraud played upon the Constitution.  

The Ninth Schedule was inserted by the First Amendment to the Constitution. It named certain laws which would be beyond the purview of judicial review for violating fundamental rights. The contemporary reasons for the insertion of the Ninth Schedule are not germane to the issue at hand. Yet, the Ninth Schedule assumes significance because it is widely (yet wrongly) believed that 69% reservation is prevalent in Tamilnadu only because the law regarding the same is inserted in the Ninth Schedule, and that it cannot be challenged.

In fact, the cap of 50% reservation was imposed by the judgment in Indra Sawhney only in 1992. The 69% reservation in Tamilnadu was in effect and implementation much prior to the said decision of the Supreme Court in the matter also known as the Mandal Commission case. Tamilnadu was forced to enter the law regarding reservation in the Ninth Schedule only to continue the existing arrangements. Even then, the matter of reservations in Tamilnadu exceeding 50% is subjudice before the Supreme Court.  

In the meanwhile, the Supreme Court has ruled that the insertion of an Act in the Ninth Schedule would not preclude it from judicial scrutiny. It is therefore no longer sufficient that a law be added to the Ninth Schedule to take it beyond judicial reach. The idea of the Paswan duo has another hurdle to cross. The discretion o extend reservation is within the discretion of the States and there are different laws for different states with different provisions regarding reservation. The vast size of the country and the diverse conditions prevalent in various parts means that the evolving conditions have made it necessary that there be laws, rules, and other species of policies having force of law in various states.

As for Maharashtra, the Maratha reservation was introduced by a separate law, known as the SEBC Act in short. The Economically Weaker Section (EWS) category of reservation, inserted by a Constitutional Amendment was extended by a notification. The validity of the Maratha reservation, taking the total beyond the 50% limit set in Indra Sawhney is subjudice and the result is awaited soon.

The Supreme Court and Maratha Reservation 

Secondly, changing fundamental rights or adding to them is a complicated process. Paswan is too big a leader not to know this. It is hence necessary that his fulminations are debunked. As to the Poona Pact, reservation in education and employment was not a consideration at the time when it was signed by and between Dr. Ambedkar, Madanmohan Malaviya, C. Rajagopalachari. The Pact was to the effect that 148 seats in the Provincial Assembly were to be reserved for the depressed classes. It was signed in 1932, whereas the reservation in education and employment were provided much later than the adoption of the Constitution of India in 1950. The Poona Pact has nothing to do with the topic at hand.

It has been held by the Supreme Court in many matters that reservation is not a fundamental right. By asking the political parties who had filed petitions to approach the High Court, the Supreme Court of India has clarified the scope and limitations of its powers regarding reservation.

Proponents of reservation will try deliberately steer away conversation from this important topic.  It is imperative for them to contrast the fallout of the judgment, and they will do so by making pointless and false allegations and state patent lies. The desperate act of somehow associating Gandhi with reservation is one such ploy. All that the open category people and opponents of caste based reservation can do is to understand the issues and to make others aware of the same. Informed action to eradicate the evils of caste based reservations is the need of the hour. Understanding the importance of events is the key to it.

© Adv. Shrirang Choudhary

Will the Supreme Court stay the implementation of Maratha reservation ?

The Supreme Court will hear the SLPs filed by Dr. Uday Dhople, Sanjeet Shukla of Youth For India (YFE), Rajshri Patil and others on 5th February on the point of stay. Despite availing ample time to file their Counter-affidavit, the Government of Maharashtra filed an application seeking adjournment of the hearing scheduled on 4th February. Admission to postgraduate medical courses is the most urgent issue for which stay is necessary. 

Faulty implementation of policy, despite there being a savings clause in the SEBC Act, by which the reservation should not have been extended to that batch resulted in the Nagpur Bench of Bombay High Court cancelling admissions of students on the basis of SEBC reservation for the 2019 batch. The Supreme Court affirmed this order. 

Most egregiously, the GoM promulgated the infamous Ordinance overriding the Nagpur Bench order confirmed by the Supreme Court. In the event, Postgraduate medical batch of 2019 suffered despite a Court order in their favour. Later on, the Maratha reservation was upheld by the Bombay High Court. It is against this order that the petitioners are in the Supreme Court. For better understanding of the issues at stake, it would be beneficial to understand why the Maratha reservation was stayed by the Bombay High Court in 2014.

Salient points in the case of Sanjeetkumar vs. State of Maharashtra 

According to the Supreme Court’s decision in Indra Sawhney, reservation exceeding 50% is against constitutional principles. However, in exceptional circumstances if the backwardness of a community and inadequacy of representation can be proved by quantifiable data this limit can be exceeded. The validity of such reservation exceeding 50% can be examined by Courts. 

Dr. Ambedkar, in his speech in the Constituent Assembly had opined that if the reservation is to be consistent with the principle of equality of opportunity enshrined in the Constitution, it must be confined to a minority of seats. If reservation for a collection of communities comes to 70%, thereby limiting the unreserved to 30%, it will not be giving effect to the first principle i.e. equality of opportunity.

Mandal Commission had included the Marathas in ‘Forward Hindu Castes and Communities’.

Mandal Commission in 1990, National Backward Classes Commission in 2000 and the State Backward Classes Commission in 2008 and 2013 have rejected representations of the Maratha community to be considered as socially and educationally backward class.

Marathas were essentially kunbis, however from the 14^th century onwards, they advanced themselves socially, educationally and politically because of their customs and occupation.

There has been no caste wise census since 1921. The State Government’s assumption that Maratha community is 32% of the population cannot be accepted to justify the reservation of 16%

The documents on record do not prove that there are exceptional circumstances to extend benefit of reservation to Maratha community.

Extension of benefit of reservation to a particular community due to exceptional circumstances can only be considered when the said class could not make social and economic progress because of social oppression or deprivation or social discrimination against or social segregation of the community in whose favour reservation is to be extended.

In Indra Sawhney, having noted that backward classes in India constitute majority of the population, Justice Reddy still held that ceiling limit of 50 per cent on reservations is a binding rule and not a rule of prudence.

The Rane Committee Report suffers from several glaring flaws, which go to the root of the matter.

Imposing reservations on private unaided institutions constitutes an unreasonable restriction upon the fundamental right guaranteed by Article 19(1)(g) to establish and run educational institutions. Hence this reservation will not be applicable to such institutions.

In so far as reservation in public employment is concerned, applying the law laid down by the Constitution Benches of Supreme Court in the years 2006 in the case of M. Nagaraj and in July 2014 in the case of Rohtas Bhankhar, the percentage of reservations cannot be in excess of 50%.
 
Points to be noted
 
The only difference between the Ordinance extending reservation to Marathas in 2014 and the SEBC Act 2018 is that the later is purported to be based on the recommendations of the report of the Maharashtra States Backward Classes Commission headed by Justice Gaikwad. better known as the Gaikwad Commission Report. Said report is not yet made public. it was not tabled in the Legislative Assembly nor was the Action taken Report issued before its recommendations were accepted and reservation was extended to the Maratha community.

Tailpiece:   The reason mentioned for seeking adjournment is that annexures to the report have not yet been translated and that the Counter affidavit is not ready. It would be interesting to see whether any action is taken against responsible officials for their negligence and lack of due care towards the petitioners and the Supreme Court.

© Adv. Shrirang Choudhary 

Dhangar quota – demands, promises and reality.

Dhangar quota – demands, promises and reality.

The Dhangars in Maharashtra have been agitating for reservation under ST category since decades. Currently they get reservation of 3.5% under the Nomadic Tribes (C) category. Till the Maratha reservation, Dhangars were the largest single community to be included in a category on its own. Their population is estimated to be about 10% of Maharashtra’s population.

Their demands have been scaled up after the State quota granting 16% to Marathas and the Central quota granting 10% to EWS were announced. Their demand is seemingly simple, and made to look so by the assurances of leaders unaware of the practicalities of the matter. They want to be included in the ST with the existing reservation being added to the overall reservation for STs, which is 7%. The catch is that percentage of Constitutional reservations can’t be changed at the whims of state policymakers. It is for the Parliament to amend the Constitution.  

Inclusion of this or that community in ST category is the prerogative of certain Central bodies apart from the state Government. The National Scheduled Tribes Commission and the Registrar General of India have to concur with the recommendation of the State government for the inclusion of a particular community in the ST. Thereafter, the matter is referred to the Parliament for amendment of the Presidential Order.  

All of this only for the inclusion of the community in ST. Increasing the percentage of reservation for Sts is altogether another matter and seemingly impossible in the current scenario in Maharashtra already reeling under the impact of 74% reservation.

The Dhangar community, however wants to retain the reservation of 3.5% and at the same time to get protection under the Atrocities Act, exclusion from creamy layer criteria and certain other welfare benefits available only to the SCs and STs.

Maharashtra CM Devendra Fadnavis had promised that the Dhangar community’s demand would be complied with in the very first cabinet meeting. However, the power to fulfill their demands is with the Centre. The STs are apprehensive that the inclusion of Dhangars in their category would affect their chances. They are opposed to any new inclusion.  

Total reservation in the state is now 74% for education and 75% for employment. The Bombay High Court has suggested that Maratha reservation should be 12% for education and 13% for employment. Litigation regarding validity both of the Maratha and the EWS reservation is pending before the Supreme Court. In the circumstances, there seems no need to be panicky about declaration of the latest policy of the government. If it is true at all.

                                                                                                     ©Adv. Shrirang T. Choudhary

Potential implications of the Supreme Court Judgment about validity of certificates issued by Government of Maharashtra

On 1.10.2019, the Supreme Court directed that State of Maharashtra should re-verify certificates between the period 30.7.2011 and 31.8.2012 issued to people belonging to Scheduled Tribes [ST]. The order passed casts doubt on the claims of people who had obtained ST certificates in this period.

The Supreme Court held that during said period, caste certificates were issued without carrying out proper exercise for verification of claims. It also expressed concerns that the certificates so obtained would be used in the future to avail of various benefits including educational reservation. These false certificates may also be used for the issue of certificates to heirs.

In the concluding paragraph, Supreme Court has expressed hope that compliance of its order would ensure that genuinely entitled persons would benefit and those not so entitled would be weeded out.

Some extracts from the judgment:

The exercise carried out in the interregnum period, between 30.7.2011 (when the Notification was issued) and 31.8.2012 (when the Rules of 2012 were notified) leaves us, as the High Court, with grave doubt, and we are of the view that no proper exercise could have been carried out, or was carried out given the time frame within which the caste certificates were issued. The objective was clear, i.e., to somehow facilitate as many people as possible, as soon as possible, to contest the elections.

The troublesome aspect is that the validity certificates are not only valid for that election, but also for subsequent elections. They are not only valid for educational purposes (except for some cases so restricted), but also for all other purposes. These validity certificates can possibly become the basis for issuance of further certificates to the legal heirs. Thus, we have no doubt that the exercise so undertaken cannot be upheld and has to be quashed with the direction to carry out the aforesaid exercise afresh.

We are of the view that the fresh exercise has to be undertaken within a period of six (6) months from today, i.e., on or before 31.3.2020. Till this exercise is completed, the existing certificates issued for the interregnum period would hold good. Wherever there is an adverse report of the Vigilance Cell and yet caste validity certificate has been issued the exercise has to be carried out afresh.

The matter of interest for the open category is the likelihood of many persons from Maharashtra being “weeded out.” The exercise, to be carried out by 31.03.2020, is likely to reveal the names of people who have obtained false certificates. It is now a matter for the Government of Maharashtra [GoM] to frame rules for further action to be taken regarding persons whose certificates will be cancelled as a direct result of the Supreme Court order. Depending upon the number of people that may be enlisted as such, the GoM may try and play tricks like promulgating an ordinance or otherwise amending existing rules to accommodate affected persons.

As a natural consequence of the list, some people who have availed benefits of reservation in education, employment or promotion may face problems. Be that as it may, some pressure group needs to prevail on the GoM to comply with the order and take necessary steps to enforce consequences on affected persons. This may include loss of benefits or criminal prosecution.

Naturally and inevitably, the GoM may, as with other issues, adopt a policy for the appeasement of the affected people in particular and ST population in general. Model Code of Conduct for Assembly elections is on. Tactics like ordinance do not appear feasible. It is however, necessary that awareness of this issue and its implications should be spread far and wide.

It is rarely that the government finds itself on the losing side on cases related to reservation. This matter is a rare and happy exception. It is also a welcome order in that it has directed the state to carry out an exercise without the thought of costs and consequences. That which was wrong has been corrected.  

  

The implications are huge. There may be many persons who had obtained false certificates. Their children or if they were themselves young at time, such persons themselves would be applying for seats in medical colleges or other prestigious institutions from ST quota. They or their children may apply for seats for education or jobs in future recruitment. Such people may get promotion in the future.

Data regarding this will be available in the public domain. Point is that public awareness is needed to ensure that the order of the Supreme Court is followed in letter and spirit. Those not entitled for the benefit of reservation should not be allowed to get them.

This order should open the eyes of the public at large and government officials in particular that the benefits of reservation have gone to many undeserving people. Many persons from the open category have suffered due to fake documentation or falsely obtained certificates.

 How many people are there in the  open category

Just imagine that in the academic years 2011-12 and 2012-13, say 50 people have been admitted to medical courses on the basis of false certificates. That is a loss of career for 50 students per year. That is a loss of talent to the nation. That is the burden of paying the fees of the falsely declared ST candidates on the State exchequer. And the injustice does not stop there. The children of these falsely declared ST people would also derive benefits of reservation.

The Judgment of the Supreme Court in Dist. Collector of Satara v. Mangesh Nivrutti Kashid should be embossed in golden letters in the annals of the reservation system in Maharashtra.

For the Judgment to have effect, however, public awareness of the order is of utmost importance. It is for the public at large to ensure that the people not entitled to benefits of reservations do not get those benefits. The waste of energy in futile pursuits like posting on social media and self pitying discussions amongst others aggrieved by reservation policy is a sad comment on the state of affairs where talent is denied entry for the sake of upliftment of so called backward classes. It would be of some public benefit if that energy is put to the use of public good in the form of ensuring compliance of this order by due public pressure. This task should be on the agenda of all people and groups working against the evils of reservation system.

© Adv. Shrirang Choudhary