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

The latest Supreme Court Judgment should be a source of joy to all open category people

In a landmark decision, the Supreme Court has enunciated provisions regarding reservation in promotion. In a case arising out of reservations in promotion of Assistant Engineers in the State of Uttarakhand, the Supreme Court has ruled that the provisions of Article 16 (4) are merely enabling. They confer no right whatsoever on candidates. If the State decides as a policy not to provide promotion in reservation, the Courts cannot issue orders to the effect that it should be so provided.

Click here for a version of this article in Marathi  

In this context it is good to note that after formation of the State of Uttarakhand, which was carved out of Uttar Pradesh, the then existent laws and rules were adapted by the new State. Policies regarding reservations too, were continued. Yet, some pleasant changes were made. Amongst them was that the percentage of OBC reservation was reduced from 21% to 14%.  Another major decision was taken by the Uttarakhand Government on 05.09.2012, when it was decided that all posts in public services in the State shall be filled up without providing any reservations to the Scheduled Castes and Scheduled Tribes. In the proceeding of that date, all the Government orders in contravention of this policy were superseded.

The said decision was challenged by an employee belonging to the Scheduled Castes. The High Court of Uttarakhand allowed the writ petition and decided that the proceeding Dt. 05.09.2012 was contrary to law. The respondent in this petition i.e. the State of Uttarakhand sought a review of the judgment. On review, the High Court decided that the State should gather quantifiable data to assess the adequacy or otherwise of representation of SC and ST employees in services of the State, and after considering the same decide whether to provide reservations in promotion.

What is the percentage of open category people?

On the other hand, some other employees filed a writ petition in the High Court seeking directions to the effect that the government prepare separate lists of candidates belonging to General, Scheduled Castes and Scheduled Tribes category in order to consider them for promotions. The writ petition also sought further directions to the effect that the government appoint a committee for promotion to Scheduled Castes and Scheduled Tribes candidates after applying reservation as per the rules existent at the time of their appointment. The rules provided reservations in promotion. The High Court ruled that the government should implement reservations in promotion. Further, it was directed that only candidates belonging to SC and ST category should be promoted so that the quota as provided for the said categories was fulfilled.  

The Supreme Court, by its order Dt 07.02.2020 decided that the State can as a policy decide not to provide reservations in promotion. The decision of Uttarakhand High Court directing the State to gather quantifiable data was set aside in view of the fact that the government already had collected the same. The Supreme Court has in this judgment clarified the position of reservations in promotions, constitutionality of policy of reservations and collection of quantifiable data.  

The points that were considered while hearing matters arising out of the above two matters were

1)       Whether the State Government is bound to make reservations in public posts?

2)       Whether the State Government is bound to consider adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes on the basis of quantifiable data before deciding not to provide reservations?

Ultimately, both the questions were answered in the negative. The decision of Uttarakhand government not to provide reservations in promotion to the employees of SC and ST categories was adjudged to be perfectly valid.

Following are the highlights of the Supreme Court judgment:

1)       The State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.              

2)       Inadequacy of representation of SC and ST categories in public employment is a matter within the subjective satisfaction of the State. Whether to provide reservation or not is solely within the discretion of the State, but the decision should be supported by quantifiable data.

3)       All decisions regarding reservation on the basis of lack of adequate representation asre open to judicial scrutiny.

4)       Collection of data regarding reservations is necessary only when reservations are to be provided. Because the State is not bound to provide reservations, there is no need for the State to provide data to show that there is adequate representation of SC and ST category candidates.

5)       Courts cannot direct that all vacancies should be filled from the SC and ST categories only.

The judgment of the Supreme Court should be welcome news for all open category candidates and people against the excesses of reservation. It is good in itself that somewhere in India there has been reduction in percentage of reservation. It is great to know that a State decides not to provide reservations in promotion at all. And it should be a source of profound joy for all right thinking people that the Supreme Court has sided with the prudence exercised by the State of Uttarakhand.

Tailpiece: Search of the entire 23 page document gave a heartening result. There is no mention of the word “merit” anywhere.

                                                                             © 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 

A call to raise the issue of interim stay to the implementation of SEBC Act

The matters filed by Dr. Uday Dhople and Devendra Jain against Maratha reservation are listed before the Supreme Court on 4th February 2020.

The State of Maharashtra has sought adjournment on various grounds mentioned in the letter submitted before the Registrar of the Supreme Court.

This is applying delaying tactics in its worst form.

The State had more than six months to do whatever was required. The Counter Affidavit should have been ready by now. Concerned officials should be held accountable for their negligence of duty towards the Court and the petitioners.  

However, the pretexts for adjournment are not at all justified.
Both the CJI and J. Gawai know Marathi, there is no need to translate the report. 

In fact, the report, which is not yet made public does not need be referred to while deciding two issues, which are crucial. 

1) Is the breach of 50% limit set in Indra Sawhney justifiable ?

2) Whether the creation of a new category SEBC is in contravention of the newly amended Articles 342 and 336 of the Constitution ?

The Counsel should press for stay in case the State pleads for an adjournment. The malafides shown in promulgating the Ordinance, the breach of assurance given to the Supreme Court while seeking extension of time to complete PG admissions in 2019, flagrant violation of norms while implementing EWS reservation, all of this and the essential merits of the case against the vires of the SEBC Act would be relevant facts for the Court to consider while deciding interim applications for stay. 

It is time for huge protests against the attitude of GoM. All sorts of social media should be flooded with calls for interim stay of the continuation of this atrocious policy of unconstitutional and illegal reservation. Calling upon all concerned to understand the issue. 

Adv. Shrirang Choudhary

Supreme Court and Maratha reservation

Understanding the order regarding Madhya Pradesh OBC quota

In an historic interim order, the Madhya Pradesh High Court has stayed the implementation of increased quota in the OBC reservation. The reservation for OBC in Madhya Pradesh was increased from 14% to 27% by the Congress Government led by CM Kamal Nath in 2019. The related Amendment Act was challenged by the petitioners, who had also sought a stay to the implementation of the enhanced quota in the recruitment of employees in Classes II, III and IV by the Madhya Pradesh Public Service Commission.

More than 400 posts to be filled by the advertisement issued in 2019 would be affected by the order. It should be noted that the recruitment process had almost been completed. Only the final selection list was awaited. However, despite many opportunities being granted, the M. P. Government had not filed its say to the interim application. On last date, the High Court had directed the government to file its say on 28th January, the next date fixed for hearing. However, despite seeking repeated adjournments the M. P. government did not file its say.

The High Court thereafter ordered that the recruitment process may continue, provided only the earlier existing 14% quota is applied for OBC reservation.

It is contented by the petitioners that the increased quota takes the total reservation to 63% which is beyond the 50% mandated by the Supreme Court in Indra Sawhney’s case. It is a point of interest that the crux of the case against Maratha reservation is that it increases the reservation beyond that limit.

Maratha Reservation in the Supreme Court, a look. 

The order assumes importance because it is interim in nature. The long pending process of recruitment will have to be completed. Hopefully, that rules out the mischief governments do by way of Ordinances. In any case, this is welcome news. Time for celebration. Hope the tide is turning to the benefit of the open classes.

Tailpiece: The recruitment process (मेगाभरती) in Maharashtra was in effect stayed in the cases against Maratha reservation. As for reservation in education, the original Act provided, per S. 16 (2) that the reservation was not applicable to courses to which admission process had begun prior to the SEBC Act coming in effect. Only the totally obnoxious mindset of the government, expressed by the much hated Ordinance promulgated by the GoM caused the devastation for the 2019 medical PG and UG batches.

©Adv. Shrirang Choudhary

We, as a nation are not ready for another divisive exercise. A note on Census 2021.

Census is a solemn exercise carried out by the Central government. All these fulminations about caste wise Census are just a lot of gas. The last caste wise count was done in 1931. Yet, in the Constituent Assembly Debates, there is mention that many Dalits mentioned their castes wrongly in 1941.

“. . . according to 1931 census we are few but even that is tolerable as compared to the 1941 census, when the latter was taken the war was on and it is possible that the census might not have been taken correctly, especially of the Scheduled Castes. Caste Hindus got Scheduled Castes registered as Hindus and the Muslims got them registered as Muslims. Therefore, I suspect that the 1941 census is absolutely wrong.”  H. J. Khandekar in Constituent Assembly Debates https://www.constitutionofindia.net/constitution_assembly_debates/volume/5/1947-08-27

It was argued in the Constituent Assembly Debates that the (political) reservations should be on the basis of 1931 Census and not on the basis of the (allegedly faulty) 1941 count. If the statistics of the caste wise count were dubbed as biased or otherwise not accurate in the 1947, one can imagine what will happen if caste wise Census takes place now in the era of fake news, distortions and false pride in castes.

OBCs have been demanding caste wise Census because they want sub categorisation. Also because according to them, their true size was not gauged by the policy makers at the time of extending the OBC reservation i.e. implementation of Mandal Commission recommendations. Other groups claim that the 27% reservation was allotted to OBCs on the hypothetical basis of their percentage in the population. Vested interests have never allowed caste wise Census for so long because the real counts of particular castes may yield surprising results.

There are many ways in which the government utilizes the data gathered by Census. Enumeration of various data is done by the Government. Apart from the Census, there is National Sample Survey Office [NSSO] which routinely gathers data. There are a thousand ways to determine the numerical strength of a particular community. Even the data gathered by Census mechanism is not analysed to its fullest. There is vast scope for understanding and interpreting data for better distribution of resources.

It is imperative that intellectuals of all views should try to understand how to interpret the available data. NSSO surveys, wholesale price and other indices would reveal a lot about condition of the society. Only the leftists and so called liberal writers have so far mined the data to suit their purposes. It's time for fresh views on all matters, including a look at suitability of reservation as a tool for upliftment of the people not in the mainstream.

Calls for inclusion of this or that data by the government is done out of deep and total ignorance of the vast machinery and apparatus that the government yields. The point is not the availability of data. Whatever data is required by intending shapers of policy is out there in the open. If one can just manage google searches, loads of data are available.

Specification of caste wise population, to reveal strength or weakness of particular castes and groups will open a can of worms. Are we ready?

What is the percentage of Open Category?

Tailpiece: There is a tendency to gain so called higher caste privilege by adopting surnames, while at the same time seeking lower caste benefits by claiming social and economic deprivation. How will the twain meet?

©Adv. Shrirang Choudhary.

shrirangchoudhary@gmail.com