India Supreme Court on Reservations in Promotions

 

Reservations for OBCs - The latest SC judgement

Bhadra Sinha in The Print


Reservation is not at odds with merit, but furthers proper distribution of opportunities, the Supreme Court said Thursday in a detailed judgment that revealed the reasons for its 7 January interim order upholding 27 per cent quota for Other Backward Classes (OBC) in the All India Quota (AIQ) for undergraduate and postgraduate medical admissions.

Merit, a bench of justices D.Y. Chandrachud and A.S. Bopanna held, should be “socially contextualised and reconceptualised as an instrument” to advance “social goods like equality” and not just be “reduced to narrow definitions of performance in an open competitive examination”.

“High scores in an examination are not a proxy for merit,” the bench said.

“Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character,” the court said. They “do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations”.

With its order on 7 January, the bench had given a green signal to counselling for medical courses that got delayed on account of the hearing in SC challenging OBC quota and reservation for the Economically Weaker Sections (EWS) in AIQ for medical admissions.

While it had declared OBC reservation as valid, it did not pronounce any opinion on the EWS quota. The court had doubts over the eligibility criterion, fixed at Rs 8 lakh annual income limit, to determine an EWS candidate. The top court is expected to hear detailed arguments on the EWS issue in March this year. However, as an interim arrangement, it had allowed EWS admissions on the basis of the existing threshold.
 
‘No prohibition for OBC reservation in PG courses’

Thursday’s judgment — authored by Justice Chandrachud — specifically ruled that there was no prohibition on introducing reservation for OBCs in postgraduate courses, negating the argument that the impact of backwardness simply disappears because a candidate has a graduate qualification.

A graduate qualification, in the court’s opinion, may provide certain social and economic mobility, but that by itself does not create parity between forward and backward classes.

The court declined to accept the argument that undeserving candidates benefitted from reservation. It pointed out that OBC candidates who fall in the creamy layer are excluded from taking this benefit.

Reservations ensure distribution of opportunity in such a way that backward classes are equally able to benefit from them, since opportunities “evade them because of structural barriers”, the court said. This is the only way merit can be a “democratising force that equalises inherited disadvantages and privileges”.

“Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements,” added the court.

Interpreting Articles 15(4), 15(5)

The bench interpreted Articles 15 (4) and 15 (5) of the Constitution to hold that the two are not exceptions to Article 15 (1). Rather, they become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1).

Article 15 (1) prohibits discrimination on grounds of religion, sex, or place of birth, Article 15 (4) capacitates the state to create special arrangements for promoting the interest and welfare of socially and educationally backward classes, and Article 15 (5) provides for reservation for socially and educationally backward classes in educational institutions.

The court held that Article 15 (5) does not make any distinction between UG and PG medical courses. It said although it has been held that there should be no reservation in super-speciality courses, it was never ruled that reservations in medical PG courses are impermissible.

Articles 15 (4) and 15 (5) employ group identification methods to achieve substantive equality. The court admitted that this could lead to an incongruity where individual members of an identified group receiving the benefit of reservation may not be backward, or individuals of a non-identified group may share certain characteristics of backwardness with members of an identified group.

“The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer,” the order added.

In the judges’ opinion, open competitive exams can be termed an equal opportunity if there is equality in the availability and access to educational facilities. Inequalities in this segment have deprived certain classes of people from participating effectively in competitions.

Therefore, according to the court, “special provisions (like reservation) enable such disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality”.

‘Privileges of social network, cultural capital’

The judge spoke at length about the “privileges” available to the forward classes, not just in terms of schooling and coaching centres, but also social networks and cultural capital (communication skills, accent or academic accomplishments), most of which is inherited.

Cultural capital ensures the child is trained unconsciously by the familial environment and gives an edge to such children over individuals who do not have the benefit of such facilities.

“They (OBC) have to put in surplus effort to compete with their peers from the forward communities,” the verdict said.

But for the forward classes, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as merit, reproducing and reaffirming social hierarchies, the ruling said.

Taking reference from an earlier judgment in the case of B.K. Pavithra versus the Union of India, which said apparent neutral systems of examination perpetuate social inequalities, the court observed “it is necessary to understand that merit is not solely of one’s own making”.

The “exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making”, the court said, advocating a deeper scrutiny of the “idea of merit based on scores in an exam”.

Standardised measures such as examination results are not the most accurate assessment of the qualitative difference between candidates.

“At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character. The meaning of merit itself cannot be reduced to marks even if it is a convenient way of distributing educational resources,” the court said, adding that the meaning of merit must be reconceptualised.

Pasmanda, Ashraf and India - Amana Ansari Begam

 

75% Haryana Private Jobs Reservation Bill

 

Contrast between two parliaments - Why was the reservations bill not scrutinised?

The passage of the quota Bill highlights grave gaps in India’s parliamentary procedures writes M R Madhavan in The Hindu


Parliament ended the penultimate session of this Lok Sabha with both Houses passing the Constitution (124th Amendment) Bill, 2019, that enables 10% reservation in education and employment for economically weaker sections. The process by which this was done illustrates the collective failure of parliamentarians to review the government’s proposals and hold it to account.

Hasty steps

Let us review the sequence of events. On Monday (January 7), it was reported that the Cabinet had approved a Bill to provide reservation to poor candidates regardless of their caste, and that this would be introduced in the Lok Sabha on Tuesday, the last day of the winter session. News reports also suggested that the Rajya Sabha would extend its session by a day, so that this Bill could be discussed on Wednesday. There was no formal press release by the Press Information Bureau.

The rules of procedure of the Lok Sabha require every Bill to be circulated at least two days ahead of introduction. This is to give time for MPs to read the Bill and discuss it (or make objections) when the vote on the motion to introduce the Bill is taken up. This Bill was not circulated, even on Tuesday morning. At 11 a.m., when unstarred questions are tabled, one question concerned whether the government was “exploring the scope of providing reservation for poor candidates from forward communities for education and employment” and the details. The Ministry categorically denied that there was any such proposal under consideration. Then at 12.46 p.m., the Bill was introduced, with copies having been circulated to MPs a few minutes earlier.

The usual practice is to refer Bills to the respective standing committee of Parliament. This step allows MPs to solicit public feedback and interact with experts before forming their recommendations. In the case of this Constitution Amendment — clearly one with far-reaching implications — this scrutiny mechanism was bypassed.

The debate started around 5 p.m., just a few hours MPs had been given a copy. The debate ended around 10 p.m.

Meanwhile, the Rajya Sabha hardly functioned that day due to repeated disruptions. Finally, the chair adjourned the House till the next day — the first official indication that the sitting was extended by a day. The next day, Wednesday, the Rajya Sabha took up consideration of the Bill around 2 p.m. and ended the debate just past 10 p.m. A motion was moved by some members to refer the Bill to a select committee, but this motion was defeated by a wide margin, and the Bill was then passed.

Let us summarise the number of ways in which due oversight was skipped. The Bill was not circulated ahead of being introduced, it was not examined by a committee, there was hardly any time between its introduction and final discussion. Barring a few small parties, none of the larger Opposition parties asked for the Bill to be carefully considered by a parliamentary committee — even in the Rajya Sabha where they might have been able to muster the numbers to ensure this.

The British contrast

Contrast this with the incidents in the British Parliament the same day (Wednesday) when the Speaker ensured parliamentary supremacy over the government. A member of the ruling Conservative Party wanted to move an amendment to set a deadline for the Prime Minister to put forward new plans if she loses the Brexit vote next week. When the government objected that such amendments to set the business of the government in the House can be moved only by a Minister, the Speaker differed. He said that every member had a right to move an amendment. The motion was won by 308 votes to 297.

This case highlights three important ways in which the British Parliament works better than ours. First, the absence of an anti-defection law, so that each MP can vote her conscience. Note that the motion that put the government in a spot was moved by a former attorney general and a member of the ruling party. Second, it is known exactly how each MP voted. In India, most votes (other than Constitution Amendments that need a two-thirds majority to pass) are through voice votes — just 7% of other Bills had a recorded vote over the last 10 years. Third, the Speaker insisted on the supremacy of Parliament, and allowed a motion against the wishes of the government. Unlike in India, the independence of the Speaker is secured in the U.K. as no party contests against the Speaker in the next general election.

Parliament has a central role to secure the interest of citizens. It is the primary body of accountability that translates the wishes and aspirations of citizens into appropriate laws and policies.

Falling short

However, our Parliament often falls short of these goals due to some structural reasons. These include the anti-defection law (that restrains MPs from voting according to their conscience), lack of recorded voting as a norm (which reduces the accountability of the MP as voters don’t know which way they voted on each issue), party affiliation of the Speaker (making her dependent on the party leadership for re-election prospects), frequent bypassing of committees (just 25% of Bills have been referred to committees in this Lok Sabha), insufficient time and research support to examine Bills, and the lack of a calendar (Parliament is held at the convenience of the government). We need to address each of these issues to strengthen Parliament and protect our democracy.

Conversion: With targets & incentives, new breed of evangelical groups are like start-ups

T V Mohandas Pai in The Economic Times

The Rajya Sabha has been paralysed by the Opposition on the “Ghar Vapasi” programe of a few organisations from the right. However, if you follow the debate, it is clear that this is a political battle by the left and the left of centre parties to embarrass and discredit the right of centre party in power. Maybe even with the intent to show up the government as incapable of bringing in reforms and development. The so-called conversion debate was an excuse to paralyse the Rajya Sabha, and a great opportunity was missed to debate the issue of large-scale surreptitious conversions across India (which is the real problem).

There is no doubt that large scale conversions have been taking place across India, accelerating over the last 5 years led by evangelical groups from the West. The North East has been converted with Arunachal and Tripura being now targeted. Tribal belts across Odisha, Jharkhand, Gujarat and MP have seen large-scale conversions for several years now.

The new phenomenon over the last 5 years has been the huge increase in evangelical conversions in Chennai and Tamil Nadu, clearly visible via the vehement advertising on particular channels on TV. Andhra Pradesh, particularly the interiors, Hyderabad and the coastal regions, has been specifically targeted due to the red carpet laid by a now deceased Chief Minister whose son-in-law is a Pastor with his own outfit. The visible impact across this region to any observer shows clearly that a huge amount of money has come in and that there is targeted conversion going on. Some evangelical groups have claimed that 9-12% of undivided AP has been converted, and have sought special benefits from the State (which has been reported in the media).

There is a very sophisticated operation in place by the evangelical groups, with a clear target for souls, marketing campaigns, mass prayer and fraudulent healing meetings. Evidence is available in plenty on videos on YouTube, social media, press reports, and on the ground. Pastors have been openly tweeting about souls converted, and saving people from idol worshippers. Some pastors have tweeted with glee about converts reaching 60 million, declaring a target of 100 million, and have also requested for financial support for this openly. Violence in some areas due to this has vitiated the atmosphere. The traditional institutions of both denominations are losing out to the new age evangelicals with their sophisticated marketing, money and legion of supporters from the West. One can almost classify these groups as hyper-growth startups – with a cost per acquisition, a roadmap for acquiring followers, a fund-raising machine, and a gamified approach (with rewards and incentives) to “conquering” new markets.

Our Constitution guarantees the freedom of religion, which includes the right of the individual to choose her religion. This is not in question, and is a very important concept for a nation like ours. But this right is terribly constrained by religions, which severely punish apostasy. Our laws prohibit conversion due to inducement, allurement, undue influence, coercion, or use of supernatural threats. Every debate on TV misses this point -people argue on grounds of constitutional rights and abuse right wings groups who protest such conversion forgetting that these new age evangelicals are clearly breaking the law! They go to the desperate, and prey on their insecurities by offering education for their children, medical services for the sick, and abuse existing religious practices and traditions.

People also point to the approximate 2.3% share of this minority in the last 3 censuses to deny such conversions. Of course, the 2011 census figures on religion has strangely not been released and we need this data. However, the reason why inthe conversion numbers do not show up in the census is that conversions are happening in communities entitled to reservation benefits. It appears that they are clearly told not to reveal their conversion in the census or officially to prevent loss of benefits. Most conversions happen amongst the tribals and rural and urban poor, who are soft targets to inducements.

I have a personal experience of evangelical groups trying to convert members of my family. Two house maids who converted said that the school where their children went raised fees and due to their inability to pay, they were told they would waive it if they converted (which they were forced to do). Of course, the school was rabid in their evangelism with these children. I use a taxi company for travel over the last ten years. I have noticed over 30% of drivers have converted over the last 5 years.

When asked, inevitably they spoke about evangelicals groups that gave them free education for children and paid their medical bills, provided they converted.

It is obvious that large-scale conversion by illegal means is happening in many places and the impact is clearly visible to anybody who would choose to see openly. Some apologists ask – where are the complaints about inducement or coercion? The law needs enforcement by the police independent of complaints, as is happening when rightist groups proudly announce conversions. These rightist groups lack sophistication, but they have squarely focused attention on this large-scale conversion activity. Law enforcers need to act before this becomes a bigger flashpoint.

The politics of quota and merit

Suhrith Parthasarathy in The Hindu

There is unquestionable value in a general policy of reservation because it attacks caste-based inequities that have proved so damaging to our society; but through an ever-expanding scheme of reservation, we have lost sight of what our aims were in the first place

The Bharatiya Janata Party’s election manifesto, released on April 7, 2014, and its opponents’ reaction to the proposal, exemplifies the level of political debate in India today. In spite of an element of truth in claims that the manifesto is an impressionist’s version, the document nonetheless departs on certain crucial, philosophical issues. But, such is our reluctance to engage on matters of first principle that these departures are rarely, if ever, contested with anything resembling an intellectual vigour. Take, for instance, the issue of reservation. While the Indian National Congress and most other political parties have proposed detailed policy measures, including the prospect of reservation for Scheduled Castes (SC) and Scheduled Tribes (ST) in the private sector, the BJP’s manifesto is curiously silent on the issue. Even the promise contained in its 2009 declaration to introduce reservation for the economically weaker general class finds no mention in this term’s version. It is likely that this decision is a product of electoral strategy. But its failure to clarify its vision is nonetheless symptomatic of a larger malaise in the Indian political sphere: a mistrust of debate subsumed by core issues of moral concern.

Arguments on reservation

The Congress’ response is also familiar: the manifesto’s silence on reservation, according to the Finance Minister P. Chidambaram has been designed to “poison” voters with a majoritarian approach. If pressed further, Mr. Chidambaram ordinarily would tell us that affirmative action is not necessarily irreconcilable with merit. Yet, what he will not tell us is why the Congress’ approach to reservation is, in the party’s belief, the only means to fulfil the fundamental right to equality. And, he will also not tell us what the Congress intends to achieve through its reservation policies: are they aimed at ensuring more than mere formal equality (which would ensure that all castes achieve equal status) or are they a means to one day achieve a society that is completely rid of the caste system?

The BJP’s prime ministerial candidate Narendra Modi’s answer to questions of whether there ought to be reservation along caste lines is similarly devious. He sings the same tune/s that he uses to counter any issue of economic inequality. According to him, the development and growth of the economy will bring with it a concomitant rise in both educational and employment opportunities, making the question of any community seeking reservation moot. But both Mr. Chidambaram’s claims about merit and Mr. Modi’s arguments about development skirt the real issue.

It is a matter of well-chronicled fact that the social and economic inequities prevalent in Indian society transcend ordinary conception. Any reasonable thinker would tell us that, as a matter of duty, our country’s resources ought to be dispersed evenly across all classes. But the argument on reservation, today, as evinced by Mr. Chidambaram and Mr. Modi’s public statements, is no longer about such considerations. The questions, therefore, are: how did we get here, and what do we do now?

Expanding reservation policy

At its inception, the Constitution envisaged very limited reservation. Articles 15 and 16, which today occupy the bedrock on which our entire policy of affirmative action rests, were meant to entrench a system where no discrimination was permissible on grounds of race, religion, caste, etc. Even clause 4 to Article 16, which permitted reservation in public employment for any backward class of citizens, was viewed as subservient to larger goals contained in clauses 1 and 2. Any such programme for reservation justified under Article 16(4) had to be shown to further the objective of ensuring equality of opportunity to all citizens. But over time, the original philosophical outlook toward affirmative action has waned.

Now, as a matter of a very specific policy of the state, not only are backward classes of citizens often identified solely on the basis of their castes, but reservation has also stretched well beyond the realm of public employment, at its first instance. These actions of the State have been brought forth either in response to particular, contrarian judgments of the Supreme Court, or in furtherance of judgments supporting the state’s larger outlook, according these programmes a constitutional sanction.

When the Supreme Court in State of Madras v. Champakam Dorairajan (1951) struck down a government policy seeking to arrange admission to engineering and medical colleges based on divisions of caste and religion, the government’s response was to amend the Constitution. Article 15(4) was introduced to allow the State to make special provisions for the advancement of socially and educationally backward classes of citizens or for the SCs and STs. Yet, this amendment did not produce an immediate change in the Supreme Court’s thinking. The court continued to hold, as it did for example in M.R. Balaji v. State of Mysore (1963), that policies of reservation are exceptional measures, requiring strict constitutional defence. It also ruled that classification of backward classes of citizens could not be based solely on the caste of the citizen; such policies, wrote Justice Gajendragadkar, might “contain the vice of perpetuating the caste themselves.”

However, in 1975, the Supreme Court finally acquiesced to the state’s ever-expanding reservation policy. In a judgment that would have widespread consequences, the court ruled that Article 16(4) wasn’t as much an exception to the general rule contained in clause 1, as it was an integral component of the right to equality, properly understood (State of Kerala v. N.M. Thomas). In other words, Article 16(1), it was held, permitted classification on the basis of caste to achieve its broad goal: equality of opportunity for each citizen, as an individual. This was further validated in Indra Sawhney v. Union of India (1992), by a nine-judge bench, which ruled that the Constitution permitted backward classes to be identified on the basis of caste. In so holding, the court provided the government the jurisprudential basis for formulating sweeping policies on reservation.

Through a series of constitutional amendments, beginning in 1995, Parliament allowed the state to make provisions for reservation in matters of promotion to SCs and STs, to carry forward any vacancies created through a failure to fill-up the reserved category from one year to the following year, and to provide specially for Other Backward Classes or SCs and STs in matters of admission to educational institutions, including in private institutions. Each of these amendments and the laws made to enforce their aims (including reservation in favour of the so-called “other backward classes”) was challenged at various stages before the Supreme Court. But, the Supreme Court, after providing Parliament the legal justification for its general policy on reservation, could not now strike down the laws that emanated as a consequence.

Political discourse vs. debate

Apart from holding these amendments to be in consonance with the Constitution’s basic structure, the court also ruled in these cases that the laws made in furtherance of these amendments, including the identification of Other Backward Classes on the basis of caste, were valid. What’s more, it found the doctrine of creamy layer, which, in principle, disallowed benefits applicable to certain groups based on their economic status, which they would have otherwise been entitled to as members of a certain caste, as inapplicable to SCs and STs. These decisions, in M. Nagraj v. Union of India and Ashoka Kumar Thakur v. Union of India, are a product of a sustained change in the court’s jurisprudential thinking on the subject. But it ought to be asked: how does the exclusion of SCs and STs from the doctrine of creamy layer fit with the purported objectives?

Unfortunately, neither the Supreme Court nor our Parliamentarians are willing to engage with these fundamental issues. There is unquestionable value in a general policy of reservation because it attacks caste-based inequities that have proved so damaging to our society; but through an ever-expanding scheme of reservation, we have lost sight of what our aims were in the first place. We, therefore, need to address the debate at a more basic level.

We need to ask ourselves, once again, whether it is equality of opportunity that we strive for, or whether we want to rid our society of the caste system. If indeed the reservation policies are aimed at achieving both these ideals, we ought to be shown proof of how the present policies are working. If Other Backward Classes have to be equated with SCs and STs, the state ought to empirically prove why the doctrine of creamy layer should be applicable to the former and not to the latter, and how such thinking links to the larger goal of ensuring a supposed equality of opportunity. We also need to ask ourselves whether these policies, as Justice Gajendragadkar suggested in 1963, have the effect of perpetuating the caste system.

Regrettably, our political discourse appears unsuited for genuine debate on such questions. If the BJP supports a change in policy, it is its bounden duty to tell us what such new policy would be, and why it would work. If the Congress believes its present policy is effective, it ought to show us how the policy fulfils the Constitution’s ideals. Instead, we are left meandering in the politics of quota and merit. Our most ingrained social inequities are, in the process, further entrenched. And as a result, the abstract ideal of equality, which the Constitution guarantees, continues to wither toward insignificance.

(Suhrith Parthasarathy is an advocate in the Madras High Court.)