A Constitutional Bench. Finally!!

Great News!

The Reservations case is being transferred to a Constitutional Bench that would begin hearings on the 7th of August. Apparently 15 questions of law would be decided by the Court.

However, on the 31st of this month the Supreme Court would hear the parties on the application of the Impugned Act from this Academic year.

ps: My previous posts on reservations may seen here.

Reserving Reservations!!!

The Supreme Court vacation ended. I now get to come back to my favourite topic ‘reservations’ once again.

On the 17^th of July , a Three judge Bench of the Supreme Court sat again to decide on the next steps to be taken as regards to the Centre’s move in increasing the OBC’s by the Central Educational Institutions (Reservation in Admission) Act, 2006 to 27%. From what I heard, Solicitor General Vahanvati decided to give one last shot at asking the Court to allow the Quota to be implemented from this Academic Year itself pending a decision by a Constitutional Bench. There was a great fur ore created by this move and opposing counsels Rajiv Dhawan and Mukul Rohtagi opposed the move by stating that a three judge bench cannot have the power to review a division bench order by Justice Pasayat in May. The Court finally announced;

- That the parties are to file their replies as to the Solicitor General’s argument by the 31^st of July.

- That the decision to transfer to a Constitutional Bench however would be taken by the end of next week.

I mentioned in my previous posts that the Supreme Court seems to be inclined towards the American way when it comes to reservations. If this is true, then this is bad news for those who want reservations in the Country. In late June, the United States SC decided Seattle School Dsitrict, a judgment that has partially overruled Brown v. Board of Education. This means that discrimination on the basis of race in admission of schools is now legal in the United States, with certain checks and balances. In the case the Court presents an idea of affirmative action that is something that the Indian Court has sought to borrow. The idea first arose in Grutter v. Bollinger and California v. Allan Bakke where the Court said that affirmative action, particularly in the admission process in universities, must be “narrowly tailored” to promote diversity, but not in such ways as would discriminate against those excluded from affirmative action because they do not belong to ethnic or racial minorities.

The above makes the stance taken by the Indian courts a lot of more confusing as we don’t know which way the Courts will go when it comes to laying down its judgment. For now, Waiting for the decision as to the Constitutional Bench sitting to come out.

Fighting for Backwardness

The struggle of the Gujjars in Rajasthan to be included in the Scheduled Tribes (ST) category is nothing but their quest for being ‘backward’ in the law. Chinappa Reddy J in Vasanth Kumar v. State of Karnataka stated that never has he seen castes fighting for backwardness (in the case of ligayats and vookaligas) and this marked the state of our nation. Similar circumstances have arisen now.

The Gujjars are traditional shepherds found across many states in north and western India. They are both Hindus and Muslims. In places like Himachal Pradesh and Jammu and Kashmir, they have been given the ST identity. Haryana and Rajasthan have sought to keep them in the Other Backward Classes (OBC) category. From what I understand, the tension began when the Jats, a powerful community in Rajasthan were classified as OBCs. The Jats constitute 15% of the population in Rajasthan; their classification by the BJP Government was seen as nothing but a political move by which the BJP gained a lot of support.

The procedure for the classification of a scheduled tribe is given in Article 342 of the Constitution. It states

342. Scheduled Tribes.—(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Pursuant to this the Constitution Scheduled Tribes Order, 1950 was formed which contains the list of tribes. The Gujjars wanted to be included in that list.

But why then would someone want to be included in that list? Are reservations in educational institutions and government offices so tempting that one would sacrifice their identity and status for them? Ironic though, it’s a true state of affairs in this Country of ours. In fact, this situation is perfect for the advocates of anti- reservation to stand up and again raise hue and cry about it. While on one side some amongst us say that there must be reservation in the country to uplift the classes, on the other side we have groups fighting for recognition and that upliftment.

I went through wikipedia and the sources mentioned on Gujjars; and here’s what I could infer:-

a) that the Gujjars are not that economically backward as compared to other tribes in the ST list.

b) There is a lot of vote bank politics involved in their classification as a ST.

c) they were a ‘criminal tribe’ during the british period. (though not an issue now)

Development for certain classes of people in the country then has largely become a political issue. Not that it never was. Its just that now constitutional fundamentals and ideals are being mixed with politics. Nani Palkhivala wrote in the Times of India, (26 Jan 1992) after Indira Sawhney v. Union of India,

‘I am sure Mr. VP Singh was sincere when he said that after the Supreme Court judgment in the Mandal case he could die in peace. But his policy has ensured that the nation will not live in peace. The poisonous weed of casteism has been replanted “where it will trouble us a thousand years, each age will have to reconsider it”.

Its then time for reconsideration of the way reservation is implemented in this country. We are tired of strikes, road blocks and the deaths of people. Violence is being used as a tool for getting demands met. We do not need immediate actions but lasting solutions to such problems.

On reservations Again

Readers must see Law and Other Things to know about the recent debate about reservations in the Country. I can’t help but say that it is very comprehensive and the authors make it a point to inform their readers in great detail.

On Reservations

People do not celebrate or enjoy backwardness. They suffer it and face discrimination, insult and humiliation because of it. Mocking at their aspirations to overcome backwardness betrays casteist prejudice.

The above are the ending lines of Praful Bidwai's article in the Frontline titled "tilting the balance". In the article he makes a remark to the extent that the Supreme Court's decision in Ashok Kumar Thakur is another of those instances where the judiciary seeks to undo the measures for equality proposed by the Government. Considering the amount of heat that the issue of reservations has created, it was expected for the Court to take a stand on this issue.In Ashok Kumar Thakur, the Supreme Court stayed the government order calling for an increase in the quotas for Other Backward Classes (OBCs) in educational institutions. The Courts decision is based upon Indian precedents like Vasanth Kumar v. State of Karnataka, Indira Sawhney and the US decisions of Grutter v. Bollinger and California v. Allan Bakke. In both these US decisions the Court said that that affirmative action, in particular in the admission process in universities, must be "narrowly tailored" to promote diversity, but not in such ways as would discriminate against those excluded from affirmative action because they do not belong to ethnic or racial minorities.
The attitude of the Court in the decision is something to ponder about. I am remimded of Clarence Darrow saying in henry Sweet, that the law makes everyone an equal, but the society does otherwise. Inarguably, in Ashok Thakur, the Court has done otherwise. The fact that even after 60 years of independence we have not been able to achieve our goal of a classless society shows how mindless we Indians have been. When referring to the Mandal Commission in this case, the Court refuse to recognise the findings of the Commission statting that it was based on the 1931 census which is too old to consider. The formulation of an objective criteriion for determing caste backwardness and an OBC was stressed upon.
Other than concurring with Indira Sawhney, the Court has stressed upon Vasanth Kumar, where there was a clash in the status of lingayats and vookaligas. OP Chinappa Reddy in the judgment stated that the issue was nothing but a quarrel between the castes to get the benefit of reservation. He also stated that nowhere else in the world is there competition to assert backwardness and to claim 'we are more backward than you'. Reservation then according to the Court in the case, had become a war among different backward classes.
There then also is an issue of separation of powers. The Government order no doubt is a part of the directive principles of a social order under Article 39 and the goal of a casteless society. Can then such order be challenged on the mere denial of a possiblity of opportunity in an educational instutution? In fact, the truth is, the Supreme Court in our Country has off late tried to involve itself in many executive decisions. Be it the delhi ceiling case or on reservations. A problem occurs when it tries to solve a socio-political debate in a legal manner. Annoucing a stay on the order has now resulted in many institutions with holding their seats till the decision is final. The IIM's are growing impatient. Arjun Singh is in the crow's nest and the Congress has no clue of what to do. A court's decision is suppose to solve an issue, not create so many complications.

SC on reservations

The Supreme Court recently stayed the Government law on reservations for OBC's in India.

The case judgment is available here.

Here's what people are saying about it;

Bong Buzz writes ; The Supreme Court has temporarily stayed the government order of reserving seats for OBCs in higher education. However, there is nothing much to rejoice. For this is only an interim order. The court stayed the order only on the ground that there is not enough data on OBC demographics, that no data on this has been collected in the last 76 years. Now if the govt. readies a hurried report on OBCs the court will no more be able to say government has no data. Moreover the court has clarified that the benefits enjoyed by the Scheduled Castes and Scheduled Tribes can’t be withheld. So much for the Supreme Court! So much for India! Living in India, how can we expect justice? This is the land where caste-based reservation will continue and Lalu Prasads and all will continue to rip political benefits out of that. There is only one way out - leave the country!

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2paisaworth writes; If the SC's objection is that the census data on which the percentage of OBCs in the population is based on is outdated, then the OBC quota in Government jobs in the 1990s in the wake of the Mandal report also ought to have been quashed with the same argument. Karat is right because the SC's stay is over an non-issue. By questioning merely the veracity of the data, rather than the basis for reservation itself, the SC has implicitly acquiesced to the Centre's twisted logic for the implementation of quotas.

There's a strange incongruity in the rationale for celebrations in the anti-quota camp today and the SC judgment. Somehow people don't seem to get it. I've heard "anti-quota spokesmen" (where did that epithet come from?) from across the social spectrum laud the SC for recognizing that "caste-based reservations only serve to divide the country". The SC has done nothing of the sort. How long will it take for a Government hell-bent on the idea of Quota to come up with more accurate figures?

The debate ought to be on the very raison d'être of reservations, not mere technicalities like this one.

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2kbloggers also has an interesting post on it.