What is the percentage of the open category?

आधे इधर जाओ

 आधे उधर जाओ

बाकी मेरे पिछे आओ

The Jailor in Sholay

 The most used argument while talking about the reservation system in India is the percentage of the castes in the total population to which reservation is granted. What is the percentage of open category people? How many people are out of the so-called backward classes? It is vexed question of imperfectly applied law and incomplete facts.

There has been no caste based census since 1921. Many castes were included in the reserved category over the years by successive governments. The exact number of castes which are considered open category is not clear. The Scheduled Castes [SC] and Scheduled Tribes [ST] are listed in Presidential Order. Other Backward Classes [OBCs], a category which was provided for in the Constitution was not granted reservation till after the implementation of the Mandal Commission report. Various states have their own lists of these reserved castes. A caste which finds itself in the ST lists of one state may be in open category in some other state.

There is no list of open category people available. There are castes, subcastes and further divisions within castes based on various factors. There has been no attempt even to gather data about this diversity.

From the miniscule number of Parsis to sizeable population of Sikhs, from uncounted lakhs of Jains to multitudes of converted Christians, many minority communities enjoy special protection and status under the Constitution, but they are open category too.

Maharashtra is a composite of parts from various erstwhile states made into one after the linguistic reorganization of states. Because of its dense forest cover and rich rural life, various tribes and castes thrived in Maharashtra. After industrialization there has been massive influx of people from out of Maharashtra due to various factors. Arguably, Maharashtra is the most cosmopolitan of all states. With industries and businesses, it attracts skilled labour, investors and entrepreneurs from other states. As in all societies, immigrants excel in academics in Maharashtra. Many immigrants become open category people, because of rules regarding domicile for availing caste reservations. Sindhi, Punjabi, Marwari, Kayastha, Telugu, Kannada, Tamil and various other people have made Maharashtra their home. Many of these do not enjoy any reservation benefit.

Many Muslim castes are included in the OBCs, but there are so many others who are in open category. In 2014, along with Maratha reservation, some more castes of Muslims were provided reservation, vide an ordinance. The challenge to this ordinance was rejected by the Bombay High Court regarding reservation for Muslims in education. But the ordinance was not turned into law. The ordinance lapsed in due course. As of now, many Muslims are in open category.  

Another class of people in open category in Maharashtra are people not having caste validity certificates, though they have caste certificates as belonging to this or that category. Of course, the creamy layer of the OBCs and the newly minted SEBCs are to be counted in the open class.

The trouble lies in the fact that the OBCs were given reservation without any census determining their percentage in the population. Likewise, the latest reservation given to the Marathas is not based any figures about population. Admittedly, there was no census. The claim that they constitute 32% of the population is not supported by any data. There is also no data to show that the percentage of SC and ST population was allotted adequate representation or otherwise. Since the implementation of various reservations, castes have been added to it. Proportionately, by the logic of it, percentage of reservation should have been increased. But as has been held by Courts time and again, the aim and object of reservation is “adequate,” not “proportionate” representation.

In Indra Sawhney’s case, the Supreme Court capped the percentage at 50%. The principle laid down in that case, and as stated by the Supreme Court while hearing EWS matter, the law is maximum 50% reservation. It means that 50% should be left for meritorious candidates.

 Again, it is to be understood that 50% are not reserved only for so called open category. They are for all who are meritorious. As to reserved category candidates objecting to the recent demand for reservation no more than 50%, only this. Meritorious from various categories take up seats from open category and use earmarking to give benefit to another candidate. Creamy layer students from across all categories also take up seats from open category.   

And lastly, where’s the list of open category castes? Where are the numbers which say that they are only this or that percentage of the population? Who are beneficiaries of reservation to say that this much is sufficient for hardworking students?

Meticulously kept records of births and deaths, even a cursory statistical analysis from the Transfer Certificates [TCs] issued in a particular academic year by all schools in Maharashtra will provide adequate data for the government to form estimates of the caste-wise percentages of different sections of the society. Are we ready?

Adv. Shrirang Choudhary

Feasibility of private professional colleges exclusively for open category

The White Rabbit put on his spectacles.

 'Where shall I begin, please your Majesty?' he asked.

'Begin at the beginning,' the King said gravely,

 'and go on till you come to the end: then stop.' 

- Alice's adventures in Wonderland

There is a lot of discussion going on about the ways and means to combat the oppressive reservation imposed by the Maharashtra Government. The 16% reservation prescribed by the Government was pared down to 12% by the High Court. But together with 10 % reservation for Economically Weaker Sections [EWS], the reservation for education in Maharashtra has increased to 74%, an increase of 22% over the last year. 

The EWS quota was supposed to be implemented after increasing seats by 25% and to a large extent that has been complied with. The government has also promised to increase seats so as to compensate for the loss of open seats due to introduction of SEBC [Maratha] reservation. Yet as per a writ petition filed before the Nagpur Bench, the number of seats available for open category has decreased by 259. 

There are other issues regarding reservations. The pinch is being acutely felt because the generation suffering this increase was not a witness to the disruption of the social order caused by the implementation of the Mandal Commission Report. It had become almost immune to the existing reservation, maybe resigned to fate. 

Maratha reservation was a body blow to the medical fraternity, an elite and exclusive club where till about two decades ago, admission was more or less on the basis of talent. The gradual increase in regulations, the stringent conditions for getting through the course, the introduction of NEET had all contributed to the medical field being open to a select few who had the resources, willingness and above all dedication to devote at least eight years of life to become a specialist.

 Success in medical education was difficult but achievable with the right coaching, guidance and wise counseling at appropriate times. The medical fraternity is an insular community where hard work is rewarded, dedication is prized and talent is always recognized. This community, however, is built on the premise that there are seats available for the truly talented students, despite reservations taking away a sizeable chunk. But suddenly, almost half of the open seats are in danger of being gone forever. The very foundations are now rocking. 

Resultant panic has made sensible people propose wild theories, seek unviable solutions or worse, engage in escapist fantasies. Professionals who seldom took note of external events, rarely participated in social gatherings except of their own with the exception of Rotary and Lions etc are now vociferously advocating principles of equal opportunity and singing praises of meritocracy. There is amongst these bewildered people a growing number seeking establishment of privately funded medical colleges where the sole criterion for admission would be merit i.e. there would be no reservations. Is a medical (or any professional) college without reservations of any sorts feasible?

For a private medical college, the logistical difficulty of creating physical infrastructure and running the mandatory hospital with required number of beds apart; a big problem is the finance required. There are said to be financiers for the right projects, amongst them NRIs and wealthy Indian individuals. But the poor record of most privately run medical colleges show the mismatch between costs incurred and fees to be collected from students. It is a secret well known that the teaching staff requirements are scarcely met at such colleges. The quality of education is perfunctionary at best. The worst does not bear being written in black and white.

Where would you find quality doctors to impart education in private medical colleges? Would successful doctors, skilled surgeons, super-specialists with their own establishments to look after give time to teach? The professors around whom departments are built, the legends with giant minds but sharp tongues, the otherwise indifferent people who sparkle when addressing a classroom - all were borne of a system which guaranteed a secure salary, promotions and a pension. Take out the role of the benevolent employee i.e. the government and what remains of the entire apparatus?

Private individuals or companies who now have their own chains of branded hospitals can certainly be persuaded to play that role. But these corporate entities have their allegiance to the shareholders - money is their primary motivation, medical services are the means to earn that money. But even for these hospitals, the required number of beds for a medical college would mean having to throw their doors open. Away goes their exclusivity and the patients would start to look at another private hospital just 5 kms away.

Even if these practicalities are taken care of, there is no guarantee that the management of such colleges could keep the seats in the college out of the purview of reservation. The SEBC Act providing the most recent Maratha reservation makes it amply clear that the reservation will apply to all institutions except minority institutions.    

The definition of "educational institutes" to which the SEBC Act applies is as under, 

“educational institutions” includes the educational institutions in the
State of Maharashtra owned and controlled by the Government, which receives grant-in-aid from the Government, including a University established by or under the relevant Maharashtra Acts, including private educational institutions, whether aided or un-aided by the State, other than the minority educational institutions referred to in clause (1) of article 30 of the Constitution of India.
Explanation.—For the purposes of this clause, the expression “private educational institutions” means institutions which have been given either prior to coming into force of this Act or thereafter, aid in the form of Government land at concessional rates or any other monetary concessions by the Government, or are recognized, permitted, supervised or controlled by the Government.

The only category excluded from reservation is minority educational institutions as per Article 30 of the Constitution. The issue of minority educational institutions as the solution for escaping the clutches of reservation is logically sound. Yet the minority should be either religious or linguistic in character. 

There is a landmark ruling which can be interpreted to mean that anything less than 50% of the aggregate can be termed minority. That way, all languages except Marathi, Hindi, English and Gujarati can be said to be linguistic minority languages. So people speaking Ahirani, Warhadi and other dialects of Marathi would be within their rights to start educational institutions and get benefits flowing from Article 30, but by definition these institutions would not be for open category. And it would be a herculean task to gather resources and manpower to take it through to the establishment of institutes.

The stringent but inclusive definition of educational institutes to which the SEBC reservation applies practically rules out Medical and other professional colleges because ultimately, inevitably, recognition by a government approved body is required for any professional degree. Without that, there is no post-graduation, no internship completion, no license to practice, no enrollment; the list goes on.

Government control is omnipresent. All aspects of our lives are controlled. The government, if not actually the owner of the land where the institute is to be built, can always say that it regulates the construction and design of the building. The government exercises control over the institution because it regulates the requisite licensing for operation of canteens in any place in India.

It is nonetheless desirable that efforts to create institutes where only merit matters should be created. Efforts can be made to seek affiliation to some foreign University or board, but the expenses would be higher than simply studying MBBS abroad.

Fighting the issue in Courts of law seems the only way out of the mess created by populist politics.

Adv. Shrirang Choudhary

In the Payal Tadvi story, misleading headlines have led to ideological divide in the society

The news media have failed in reporting the Payal Tadvi  story

"They asked the camel, 

'Why is your neck crooked?'

 The camel laughed roaringly,

 'What of me is straight?'" 

                                                                         - Siberian Proverb 

The Payal Tadvi story has become a phenomenon in news reporting in India. Headlines mislead, purposely. Some are absurd. Some are inane, but dramatic nonetheless.

“Payal Tadvi, the “strong,” “bold” girl broken allegedly by caste”.  The inverted commas suggest that the writer has doubt about the adjectives describing the deceased. The use of the word ‘allegedly’ is more damning. Words matter, and in news reporting, they matter the more. If the word is used advisedly, the reporter or the editor knows that the charge of casteism is false. If not, then jargon is being used. Both scenarios are bad for reporting news of this magnitude. Was the word 'broken' in this headline used figuratively? If so, then the reporting is biased. Otherwise, the writer is directly attributing motive, cause and reason of Payal Tadvi’s suicide to a deliberate act against her because of her caste. Which is all the more troublesome.

“Accused doctors break down outside court.” Meaning of the phrase “to break down” is not exactly applicable to the happenings in or out of the Court on the day when the accused were produced in Court. To break into tears is a phrase used to signify extreme grief. In Indian parlance, breaking down has come to mean so overcome by grief that you lose sense of time and place. But that was not the case with the doctors who were produced before court. So what was being reported? Why are the three doctors being portrayed as victims when they are just accused in a criminal case?

“Did Payal Tadvi commit suicide? SC--ST Committee to tell this week.” It would be hilarious if the context were not deadly. Thankfully, all the article says is that the SC-ST Commission of Maharashtra has raised question whether it is a case of homicide. Yet, the headline unmistakably suggests that the committee was tasked with determining whether Payal committed suicide.

“On casteism, films may work where media has failed,” is the most absurd headline.  That of an opinion article. Accompanying the story is a picture of Payal Tadvi. Caption: “a trainee doctor who committed suicide due to alleged caste-based harassment by other doctors.” No mention of anything else. In black and white. Casteism as the cause of death.     

This fixation of reporting on the caste angle has created a backlash. There is now talk of ‘would they do this with a category accused?’ And sympathy for the accused who are being targeted ‘unfairly only because their communities can’t fight back.’

The state is bending over backwards to do all that is demanded by and on behalf of the Tadvi family. Yet their advocate says that the Tadvi family does not trust the Special Public Prosecutor. Variously, the demand for probe into Payal’s “murder” finds mention in print. In social media, furious debates around banal articles in print rage on. The complexities of the matter are reduced to inanities. The voice of reason is lost.

But reason is often the casualty in the era of 24X7 news, online news-portals and social media. A newsworthy story, even one touted as breaking news is replaced by the next big story. Entire episodes of an evolving story are forgotten.

But the story of Payal Tadvi’s suicide is like no other. For one, it hits all the right notes, to use a phrase sadly. Most importantly, it allows almost everybody the victimhood trope. Based on your viewpoint, the roles of accused and victim interchange. Some have termed the death institutional murder. It is not clear what the Tadvi family and their sympathizers (and they are legion) want. What most of the doctors want along with family members of the accused is their immediate release, reinstatement in service and fair investigation. Nobody is willing to come forth and say that it will happen in due course of time. Hence the typical reaction for any news regarding the issue is ‘omg’ (Oh My God for the uninitiated). Which is not at all warranted.

In every criminal case involving death, the accused are dealt with in a particular manner. After their arrest, they are produced before a Magistrate. The police seek custody which in instant case was granted for three days. Further police custody sought was rejected. The Magistrate took them in custody [MCR]. In case of abetment of suicide etc, if charges are proved, the punishment is imprisonment of more than 7 years. According to law, the matter is to be tried by a Sessions Court, which alone can grant bail. The news about judicial custody extended up to this or that date is thus pointless.      

Talk of the accused being treated like terrorists or hardened criminals is unreasonable. A person has committed suicide. Some people named as accused in the First Information Report [FIR] have been arrested. The court will decide whether they should be released on bail.

In the meanwhile, polarization of opinion in the society at large and the medical fraternity in particular is creating mutual distrust. This is being fed by irresponsible articles in newspapers. Headlines are one problem, but the statements in the articles are more troublesome.

“Open communal war and ‘an eye for an eye’ cannot be a solution to any issue particularly for intellects like doctors.” This is a direct quote from an article on a blog. It is from a literal translation of a Marathi article published in a popular daily. Use of the two unhappy phrases is best avoided in any situation signifying conflict. To suggest that there is a possibility of open communal war, and demand for “an eye for an eye” is recipe for disaster. And terrifying if true. But the statement is apparently false. Moreover, the last clause of the sentence is condescending and patronizing. More so because the writer is a doctor, and writes as a doctor, not as an objective observer.  

That is the biggest issue with regard to the case. The identification of many doctors with the accused is a direct result of the misreporting of the media. It is necessary to understand that law provides a certain set up for the accused to be dealt with. The apparatus is good, the systems are in place.

The infrastructure for provision of a fair trial has been in existence for more than a century. There is no cause or occasion for anybody to feel that law will not be followed. In instant case, a Special Public Prosecutor has been appointed. On their demand, arrangements have been made for the Tadvi family to have their own lawyer.

The media have so far reported many things. The various fact finding commissions and organizations involved have informed us of others. Advocates for the State, the accused and the Tadvi family have given statements. Tellingly, the police machinery has maintained decorous silence. So officially we do not know how or where the investigation is going.

No direct evidence linking the accused to the suicide has yet been found. There are reports that the accused are guilty of ragging. There is said to be no evidence of caste angle to the issue. For the act or acts to constitute a crime, the intentions of the accused are important. Caste based harassment is a vague term. An offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in this case can be framed on the ground that the accused intentionally insulted and intimidated Payal with intent to humiliate her in a public place within public view. The catch is that according to Payal's own statement, the accused did not know her caste. Last they spoke, police were looking for evidence to substantiate the claims of Tadvi family that she was harassed due to her caste. There is still no report of anything incriminating being found.    

News reporting is an all consuming affair. The very print media which made the accused the villains of the piece may find something else, and report it without full verification. They may also report that according to unspecified witnesses present in the ward that day, Payal had done something which may alter the perception altogether. A new angle, unimaginable till now, may emerge. And it may turn out to be true.

Like the camel in the proverb said, nothing in the Payal Tadvi story is straight. 

 © Shrirang Choudhary

This post is a part of a series about the suicide of Payal Tadvi. 

Please share with due credits.