Caste-based reservations, India (legal position)
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The guiding principles
I: The intentions of the founding fathers
The Bihar government [in 2016] decided to provide 50% reservation in subordi nate judiciary -21% to extremely backward classes, 16% to scheduled castes, 12% to OBCs and 1% to STs. There would be horizontal reservation of 35% for women and 1% for differently abled persons in all categories.
By introducing reservation in judiciary after consulting the Patna high court and Bihar Public Service Commission, the Nitish Kumar government has removed the basic objections of the Supreme Court, which on March 14, 2000 had quashed Bihar Reservation of Vacancies in Posts and Services (for SCs, STs and OBCs) Act, 1991[State of Bihar Vs Bal Mukund Sah]. The 1991 law had mandated reservation in judicial officers jobs up to 14% for SCs, 10% for STs, 12% for extremely backward classes, 8% for OBCs, 3% for economically backward women and 3% for economically backward.
The Constituent Assembly in 1949 had discussions on reservations for backward classes in government jobs. Many members expressed apprehension about misuse of the term `backward' without it being defined in the Constitution itself.
H N Kunzru had said: “whether any class is backward or not should not be left to the law courts to decide. It is our duty to define the term.“ T T Krishnamachary had said: `It does not apply to a backward caste... It says class. It is a class which is based on grounds of economic status or on grounds of literacy or on ground of birth?“ Parties have forgotten class and replaced the word with caste over the decades.
B R Ambedkar, as chairman of the drafting committee, had said: “We have to safeguard two things, namely , the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the state, then, I am sure they will agree that unless you use some such qualifying phrase as `backward' the exception made in favour of reservation will ultimately eat up the rule altogether.Nothing of the rule will remain.“
The Constituent Assembly rejected the proposal to reserve constituencies for minority community. But, it provided for reservation of seats for the SCs and STs in the legislature for 10 years. After the expiry of a decade, this provision gets renewed for another 10 years to perpetuate reservation through politics. Probably this is the reason why we see there is a race among affluent communities to get branded as backward. They have spilled on to the roads in Haryana and Gujarat demanding backward status to get reservation in government jobs and admission to state-run educational institutions.
The Constituent Assembly did not envisage this as a fall out of Article 16(4) that carved out an exception to the fundamental right to equal opportunity . The exception has now been perpetuated by the political class.
The report of the first Backward Class Commission headed by Kaka Kalelkar on March 30, 1955 had talked of reservation to socially and economically backward classes on the basis of caste hierarchy and their representation in government and industrial jobs.Immediately after submitting the report, Kalelkar had written to the President requesting its rejection saying reservation and other re medies recommended on the basis of caste would not be in the interest of the society and country .
Mandal commission report of December 31, 1980 had evolved 11 rough and ready indicators or criteria for determining backwardness under three major heads -social, economic and educational.The V P Singh government notified 27% reservation to backward classes (other than SCs and STs) in government jobs in September 25, 1991.
Reservation can't destroy equality
If ‘general candidates’ more meritorious than ‘reserved:’ don’t eliminate them
The Kerala high court has declared as unconstitutional a clause in National Eligibility Test (NET) qualifying norms, finding that it could eliminate general-category candidates even if they are more meritorious than candidates from reservation categories. This violates the right to equal opportunity of general-category candidates, the court said.
A single bench of the court gave the ruling after considering two petitions, including one filed by Nair Service Society, challenging the criteria fixed for qualifying in NET.
From the candidates who secured minimum qualifying marks in the NET, a merit list was prepared by selecting the top 15 per cent based on aggregate marks. For the three papers of NET, candidates belonging to categories such as OBC, SC, ST, and persons with disabilities had to score only 5-10 per cent lower marks to secure a pass. In the merit list prepared on the basis of aggregate marks, separate categories were maintained for OBC, SC, ST, and PWD.
It was alleged by the petitioners that such classification resulted in the number of candidates qualifying in NET from reservation categories to be much higher than the general category as more candidates secure minimum qualifying marks in reservation categories due to the lower qualifying marks. This infringes upon the right of general category candidates' fundamental right of equal opportunity in matters relating to public employment, they contended.
Ruling in favour of the petitioners, the court said in the judgment, "When more than 50% of the vacancies in the post of Assistant Professor in Universities and Colleges are open vacancies and when NET qualification is mandatory for staking a claim for selection in the said vacancies, a criterion which is likely to eliminate more than 50% of the candidates from general category from acquiring the NET qualification cannot be said to be a valid one, especially when they, or at least a substantial number among them, are more meritorious than the candidates who are NET qualified from the reserved categories. For the aforesaid reasons, I have no hesitation to hold that the impugned criteria would infringe the fundamental right to equal opportunity guaranteed to the candidates belonging to the general category under Article 16(1) of the Constitution and hence unconstitutional." The criterion to be adopted to ensure the right of the reserved categories in a case like this should be one which would ensure justice to the candidates belonging to the reserved categories, equity for the candidates belonging to the general categories, and one that would ensure standards of the higher education system, the court said.
OBC reservations: A history
The Times of India, Aug 31 2015
Social engg now a race for backward status
Dhananjay Mahapatra
The Morarji Desai government had set up a commission headed by B P Mandal on January 1, 1979, to identify socially and educationally backward communities to provide them with reservation in government employment. The commission, in its report in December 1980, recommended 27% reservation to other backward classes (OBCs).
In 1990, the V P Singh government dusted out the report and implemented its recommendations.Protests and judicial scrutiny could not impede the new political mantra -social engineering.
Two decades later, social engineering got a facelift when the Centre extended the 27% OBC quo ta to admissions in educational institutions. This too got the thumbs up from the Supreme Court.
Though it upheld extension of OBC quota in college admissions, the SC had expressed its view against the perpetuation of reservation. It disapproved of the politically motivated tendency to swell the list of OBCs. It had suggested a comprehensive study on OBCs to exclude those which had benefited from quota to shake off the historical social and educational disadvantages. Will a ruling party ever bite the survey bullet when elections continue to be fought on caste lines? They have scant regard for repeated SC rulings to limit the quota to 50% of the total availability of jobs or seats in colleges. In many states, it touches the 70% mark.
As space for merit shrinks in jobs and educational institutions, a cauldron of frustration is getting fuelled by competent youngsters, left behind by the not-so-competent armed with an OBC certificate. No wonder, the Jat community agitated and succeeded in getting OBC status. The SC had to step in and rescind the Centre's decision.
In the Ashoka Thakur judgment, which upheld 27% quota for OBCs in educational institutions, the SC underlined the recent trend of `forward' castes seeking `backward' status.
It warned, “When more and more people aspire for `backwardness' instead of `forwardness', the country itself stagnates.“
The SC had also warned, “While affirmative discrimination is a road to equality , care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use should not become a permanent liability .“
While striking down quota for Jats in Ram Singh vs Union of India (March 17, 2015), the SC had said the determination of social and educational backwardness to warrant award of reservation benefits to a community must be based on contemporary data and not historical perception.
The SC had asked that if government after government claimed to have achieved all round development of the country and communities, why were more and more communities getting included in the list of OBCs and not a single exclusion? Was this the meaning of all-round development that more and more communities were getting backward? No ruling party dare order a survey that would deprive communities of reservation as they fear losing votes in a geographic unit whose demographic equation has been virulently afflicted by politically crafted social engineering which has divided communities on the lines of those who have the OBC tag and those who don't.
In the Ram Singh judgment, the SC had said reservation should reach the most deserving. The yardstick to determine which community deserved reservation should be evolved using contemporary standards and must necessarily move away from caste-centric definition of backwardness, it had said.
“The perception of a self-proclaimed socially backward class of citizens or even perception of the `advanced classes' as to the social status of `less fortunate' cannot continue to be a constitutionally permissible yardstick for determination of backwardness,“ it had said.
Till political parties muster enough courage to undertake a comprehensive study and exclude communities which, through reservation, have climbed high enough in the socio-economic ladder, many Hardik Patels will emerge as rallying points for frustrated young victims of reverse discrimination.
Inclusion in list of beneficiaries
1989-2016: Agitations for reservations
The Hindu, September 23, 2015
1. Jats : In a 64-page judgment in March this year, a Bench of Justices Ranjan Gogoi and Rohinton Fali Nariman struck down the March 4, 2014 notification issued by the then UPA government to include the Jats in the Central list of OBCs for the nine States. Read more
2. Gujjars : Agitations by Gujjars over reservations have been a near-annual event in Rajasthan since 2006. In May this year, the Rajasthan government announced that it would provide the community 5 per cent reservation in jobs. Read more
3. Vanniyars : In 1989 the Vanniyars - along with several other communities in Tamil Nadu - were given the Most Backward Class (MBC) status. Being the single largest MBC group, this reservation benefited the Vanniyars most.
4. Patels : Riots, arrests, a curfew and eight deaths later, the mass movement now appears poised to take on a national shape. It began as a rally in Visnagar town in Gujarat early July, but two months on, the Patel-agitation for OBC status — with 22-year-old commerce graduate Hardik Patel at the helm — has galvanising tens of thousands of people across the State. Riots, arrests, a curfew and eight deaths later, the mass movement now appears poised to take on a national shape.
Quota games: The race backwards
Subodh Ghildiyal | TNN
With No Govt Daring To Carry Out Prescribed Purge Of Communities From OBC List, Purpose Of Reservations Defeated
The joke is that if Jats and Marathas are backward, then may as well put Thakurs and Brahmins on the OBC list and end the farce. With Jats recently put on the central list of backward classes, the day is not far when Marathas and Jat-Sikhs too will be in queue for quotas in jobs and education.
It’s a strange race where more and more communities, dominant in contemporary times, want to be categorized as backward castes or OBCs. The sole objective: Availing the 27% job quotas. Despite the clout of these resourceful groups, the weak-kneed political class has caved in to demands, fearing their wrath in the elections.
If UPA2 accorded Jats OBC status at its last cabinet meeting, it was after electoral calculations about how the decision would benefit the alliance. Days ago, the National Commission for Backward Classes had “rejected” the proposal, saying Jats were “not socially or educationally backward”.
Congres is not the first villain. The blame lies with former PM Atal Bihari Vajpayee who promised the community backward status on an election trail in Rajasthan and fulfi lled the promise in 1999. The irony: Rajasthan’s Jats were included in the central OBC list, but weren’t considered backward in the state.
Now, with the sounding of theelectionbugle,wordhasleaked about how the Maharashtra government is ready to carve out job quotas for Marathas. Akali Dal began demanding OBC status for Punjab’s ruling class — the Jat Sikhs.
The modus operandi is simple: Powerful groups demand backward status and up the ante around elections. Parties, wary of attracting their hostility, nod and begin seeing political wisdom in the demand. Finally, it’s clinched.
In two decades of the Mandal Commission that instituted the central quotas for OBCs, the number of backward communities has swelled from 1,352 to 2,404 castes. The race for “backwardness” and a pliant political class have played havoc with the system designed to help those weaker groups that still suffer discrimination. Experts point to a dichotomy. The farming communities were “shudras” in the caste system. Post land reforms, they’ve achieved social and economic mobility to be rid of historical stigma, says Vivek Kumar, a sociologist with Delhi’s Jawaharlal Nehru University. “These communities shouldn’t get quota benefits because most would fall in the creamy layer (economic status beyond which an OBC isn’t eligible for quotas),” he argues.
The political expediency trap is messing up the tenuous social balance. The inclusion of Jats in the OBC list in 1999 triggered the Gujjar agitation. They insisted that they be put in the Scheduled Tribe list. The agrarian Gujjars lamented that resourceful and educated Jats had cornered quota benefits at their expense.
The Gujjar push was met with resistance from Meenas, a dominant ST community that loathed a competitor for its share of tribal quota, resulting in a bloodbath between the ‘martial’ groups that put the country on edge in 2007.
Many believe the open-ended process of identifying backwards provides the opening for “motivated” inclusions in the OBC list. The government can put a deadline to the process. “65 years of independence is enough to have found the backwards,” an expert says.
While the political class has been quick to capitulate to demands, it has been reluctant to bite the bullet on “exclusion” – a purge of the OBC list of communities that have made progress with time. Section 11(1) of the NCBC Act that identifi es backwards, says the OBC list should be revised every 10 years.
The fear is that communities which have made progress and run the risk of exclusion are the ones with social and economic clout to scare the political class. Post the Jat decision, OBC activists and intellectuals lament that the endless inclusions in the backward category would render redundant the concept of reservations. Many see it as an upper caste conspiracy.
That may not be far from the truth if reservations are not uncoupled with the interests of the political class and applied strictly for the purpose they were conceived.
THE EVER-GROWING LIST
MANDAL COMMISSION
1993
27% reservation in central jobs and education. Since then, number of backward castes up from 1,352 to 2,404
Section 11(1) of National Commission of Backward Classes Act says government should, every ten years, purge the OBC list of communities that have ceased to be backward
In 20 years since Mandal came into force, the purge has not happened even once
A purge can exclude strong communities like Jats, Yadavs, Kurmis and some from south India, from the OBC list
In 1999, former PM AB Vajpayee promised Jats backward status at a poll rally in Rajasthan. The state’s Jats were included in the central OBC list, but weren’t ‘backward’ in the state. Gujjars followed with their demand for ST status
States: the position in
Rajasthan: 68%
The Times of India, Sep 23 2015
Raj govt breaches 50% bar, quota now at 68%
The Rajasthan assembly passed two bills granting 5% reservation to Gujjar-led special backward classes (SBC) and 14% to economically backward classes (EBC), taking the total quota quantum in the state to almost 68% -well over 50%, the ceiling that twice got quota laws of the state rejected. The Vasundhara Raje government also pushed through resolutions urging the Centre to place the twin bills in the 9th schedule of the Constitution to buffer them from legal scrutiny.
Raje's decision came a day after Mohan Bhagwat stirred a storm by suggesting that the reservation system be reviewed. In hiking reservations in jobs and educational institutions, Rajasthan chief minister Vasundhara Raje may have been moved by her state-level compulsions.
But the controversial move of the saffron satrap who just fended off a determined Congress bid to corner her on her links with controversial cricket administrator Lalit Modi may also help the party outside the state, especially because of its sheer timing.
The state government secured passage of the two bills designed to reserve another 19% of seats in educational institutions and government jobs, that is, over and above the 49% already “reserved“.This comes at a time when the BJP is under attack from its opponents over Mohan Bhagwat's remarks on reservations.
Bhagwat's comments suggesting that quotas needed to be de-politicized and the issue of who all should get reservation benefits be examined by a group of experts have been interpreted by BJP's diverse opponents as Sangh Parivar's alleged opposition to reservations.
The charge, if it sticks, can play havoc with BJP's prospects in assembly elections in Bihar where both JD(U) and RJD have tried to revive the Mandal faultlines and turn the contest into a backward versus forward affair. However, Raje's action, cynical in terms of its brazen disregard of the Supreme Court-mandated 50% cap on quotas as well as the certainty of it being struck down by judiciary at the first turn, serves the purpose of showing that BJP can travel to the same extraor dinary lengths as its rivals to appease the clamour for quotas.
Bhagwat's remarks caught BJP unawares not just because they coincided with the party's determined drive to wrest control of Bihar with the help of a rainbow coalition comprising upper castes, OBCs sans Yadavs and Kurmis, most backward castes and Dalits.
His comments on reservations, certainly the way they were portrayed in certain quarters, interferes with Sangh Parivar's plans to make inroads among Dalits, a project which has got underway with an outreach to the Scheduled Castes and the canonization of B R Ambedkar in the saffron pantheon.
In the last Lok Sabha elections, the BJP outpolled Congress among Dalits with Modi's projection as an OBC contender for prime minister helping the party net backwards which had been alien territory for it.
“In Bihar, BJP has OBC leaders like Sushil Modi, Nand Kishore Yadav and Prem Kumar who have always occupied top positions. We have always received significant support from MBCs and Dalits who were given short shrift by parties which serves the interests of individual caste leaders and so people will laugh at the suggestion that we, that too at a time when our PM is an OBC himself, are opposed to quotas.That said, however, the remark was avoidable,“ said a BJP functionary who insisted on anonymity .
Gujjars
The Indian Express, December 10, 2016
Mohammad Hamza Khan
Rajasthan High Court strikes down Gujjar reservation
The court pointed out several flaws in the SBC reservation while saying that the ceiling of 50 per cent can be exceeded in exceptional cases. The Rajasthan High Court struck down five per cent reservation for Gujjars and four other castes under the Special Backwards Classes (SBC) category, underlining that reservation should not be provided “to achieve political goals”.
“Five castes (Gujjars, Banjaras, Gadarias, Raikas and Gadia Lohars), earlier falling in the category of OBCs and getting benefit of reservation, have been brought in the category of SBCs to provide five per cent reservation exceeding the ceiling of 50 per cent,” the court said. “…it is not that the Gujjars/Gurjars and others were having no representation either for admission in the educational institutions or in services.’’
The court noted that data for establishing the backwardness of the five communities had not been collected to the extent required. “In those circumstances, recommendation of the SBC Commission (for reservation) can be said to be perverse,” the court said. “The SBC Commission and the state government have failed to discharge their obligation as per the directions of the apex court to collect quantifiable data.’’
The court pointed out several flaws in the SBC reservation while saying that the ceiling of 50 per cent can be exceeded in exceptional cases. It added that reservation “should not be made solely based on caste’’. The court observed that reservation to achieve political goals results in caste-based agitations. “It was recently seen in the state of Haryana where agitators disrupted normal life of the citizen.’’
The law granting the reservation was passed last year taking the reservation in the state to 54 per cent.
Rajasthan Gujjar Aarakshan Sangharsh Samiti leader Himmat Singh Gujjar said community will agitate again. “We will agitate the same way as before,” he said. “There is BJP government at the Centre and in the state and we kept telling them to see to it that that the (reservation) Act is included in the Ninth Schedule of the Constitution (to make it immune to judicial scrutiny),’’ he said.
The 50% ceiling
Rajasthan HC strikes down 5% quota for Gujjars, 4 others
Joychen Joseph, Raj HC strikes down 5% Gujjar quota, Dec 10 2016: The Times of India
The Rajasthan high court scrapped the Rajasthan Special Backward Classes (SBC) Reservation Act 2015 that provisioned for 5% quota to five communities, including Gujjars.
The court struck down the notification of October 2015, saying there were “no extraordinary circumstances“ to allow the state's overall reservation in government jobs and education institutes to go beyond the 50% cap. Following the notifica tion, the overall reservation in the state reached 54%, which was in violation of the 50% cap set by the Supreme Court.
The Act had provided 5% reservation in jobs and educational institutes to five communities: Gujjars (Gurjars), Banjara (Baldia, Laba na); Gadia-Lohar (Gadolia), Raika (Rebari, Debasi) and Gadaria (Gaadri, Gayari).
The division bench of Justice M N Bhandari and J K Ranka passed the 199-page judgement on a writ petition filed by ex-Army Capt Gurvinder Singh, the Samta Andolan Samiti and others. The division bench found fault also with the SBC Commission, which was headed by Justice (retd) I S Israni, which studied the status of 82 OBC communities in the state. The high court said there were many discrepancies in the SBC Commission report, so its recommenda tions cannot be accepted.
It said the SBC Commission failed to consider Article 16(4B) of the Constitution, which forbids reserva tion exceeding 50%, and used the Indra Sahwney case judgement to arrive at wrong conclusions.
Bihar: Ashoka Thakur and Jat community judgments
The Times of India, Nov 16 2015
DhananjayMahapatra
Bihar polls: 65-year-old war to defeat caste system bites dust
One thing was clear. As always, Bihar voted on caste lines
Chairman of the Constitution drafting committee B R Ambedkar, who himself was a victim of the caste system, led the fight against it. Ambedkar had said, “On 26th uary, 1950, we are going to enJanuary , 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality . In politics, we will be recognising the principle of `one man one vote and one vote one value'. If our social and economic structure continues to deny the principle of one man one value, how long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? “If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.“ After 65 years, can we say we have achieved the goal of wiping out caste system from our social life? The framers of the Constitution provided for reservation in public employment to backward classes to help them counter years of discrimination and slowly assimilate in the mainstream. In the Ashoka Thakur judgment which upheld 27% quota for OBCs in educational institutions, the SC in 2008 had underlined the recent trend of `forward' castes seeking `backward' status. It warned, “When more and more people aspire for `backwardness' instead of `forwardness', the country itself stagnates.“ The SC had also warned, “While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use should not become a permanent liability .“ While striking down quota for Jats in Ram Singh vs Union of India (March 17, 2015), the SC had said the determination of social and educational backwardness to warrant award of reservation benefits to a community must be based on contemporary data and not historical perception.
The view of the Rashtriya Swayamsevak Sangh
The Times of India, Sep 22 2015
Row erupts over Rashtriya Swayamsevak Sangh chief's quota remark
The call for a committee of politically neutral persons to examine criteria for reservations is, in fact, part of a 1981 Rashtriya Swayamsevak Sangh resolution displayed prominently on the organization's website. The resolution, while supporting reservation as a means to achieving a more equal society , says, “The committee should also recommend necessary concessions to the other economically backward sections with a view to ensuring their speedy development. “The ABPS (all India representative council of Rashtriya Swayamsevak Sangh)agrees with the prime minister's (Indira Gandhi) viewpoint that reservations cannot be a permanent arrangement, that these crutches will have to be done away with as soon as possible, and that because of this arrangement, merit and efficiency should not be allowed to be adversely affected. The Sabha appeals to all other political parties and leaders as well to support this viewpoint and initiate measures to find a solution to the problem.“ Sources said Bhagwat's remarks related to the argument -often raised even by reservation beneficiaries -that quota benefits are cornered by some influential castes and need a second look to protect the really vulnerable. The 1981 resolution supports reservations but expresses concern that quotas have been a “tool of power politics and election tactics“ generating ill will and conflict in society.
Double reservation benefit
SC upholds UPSC ban
SC upholds UPSC ban on double reservation benefit
TIMES NEWS NETWORK
From the archives of The Times of India 2007, 2009
New Delhi: The SC on Friday upheld the validity of a civil services examination (CSE) rule virtually stopping double quota benefit for reserved category candidates who qualify on merit after competing under general quota.
A bench comprising Chief Justice K G Balakrishnan and Justices S H Kapadia, R V Raveendran, B Sudershan Reddy and P Sathasivam quashed a Madras High Court order which had termed the CSE rule 16(2) as unconstitutional. Rule 16(2) provides an opportunity to reserved category candidates, who rank among the general category, to fall back on their backward class status and improve their service choice. The improved service so availed by the reserved category candidate would then be counted against the quota posts specified for that service.
For example, if a reserved category candidate secures a rank in general category that fetches him Indian Revenue Services, then he could avail his backward status to improve his service and even get IAS.
Under Rule 16(2), the IRS post so vacated by the candidate by falling back on his SC, ST or OBC status, would then be offered to a general category candidate next in the waiting list. The HC had termed Rule 16(2) as unconstitutional as it was detrimental to the intention of socially affirmative action provided under the law.
Challenging this judgment, the Centre and a host of petitioners termed the HC ruling anomalous. Appearing for one of the petitioners, advocate Anirudh Sharma had argued that it would amount to giving reservation over and above the specified percentage of posts reserved for SCs, STs and OBCs. The SC had on June 1, 2008, stayed the HC judgment.
Writing the unanimous verdict for the five-judge bench, CJI Balakrishnan said, “Candidates who avail the benefit of Rule 16(2) and are adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservations.”
Economically backward classes quota
Unconstitutional, contrary to fundamental rights: Guj HC
The Times of India, Aug 05 2016
HC quashes Guj's 10% upper caste quota
In a setback to the Gujarat government, the high court here has quashed the former's decision to set aside 10% quota within the general category for upper caste families with low income of up to Rs 6 lakh per annum.
A division bench of Chief Justice R S Reddy and Justice V M Pancholi held that the ordinance reserving quota for upper castes on the basis of their income was “unconstitutional and contrary to fundamental rights guaranteed to the petitioners under Articles 13(2), 14, 15 and 16 of the Constitution“.
The court said that income cannot be considered as the basis for the social backwardness of a community .Observing that the state go vernment had no power to make such provisions, the high court directed it to cancel admissions granted under the 10% economically backward classes (EBC) quota. This will require reshuffling of admissions, especially in engineering and other professional courses.
The high court, however, granted two weeks to the government to approach the Supreme Court.
Gujarat minister Nitin Patel said the government would challenge the high court order in the apex court.
The high court rejected the government's contention that the EBC quota was not reservation, but a classification. The court also noted that the provision violated the maximum 50% reservation norm. The court also pulled up the state government for its false claim that the policy was formulated after a survey.
Elected bodies, reserved seats in
Politicians seek SC/ ST wives to boost careers
The Times of India, August 22, 2016
Eram Agha
In UP reserved seats, aspiring netas seek SC|ST wives
Iglas assembly constituency in Aligarh district, which goes to the polls with the rest of UP in 2017, is seeing matrimonial offers with a difference. Reserved for scheduled caste (SC) candidates, aspiring politicians are seeking brides who can be put up as candidates in the elections, just so the former can live their political ambitions.
One of these hopefuls is Ravinder Singh. “I want to stand for elections on public demand. But Iglas is reserved for SC candidates and I am OBC. I want to marry an SC girl who is educated,“ sa ys an ad doing the rounds. He adds, “No dowry .“ Singh has got 10 offers so far.
Three months ago, BJP leader Meghraj Singh married a Dalit girl to, in his words, “pursue my political dreams through my wife“.
In Iglas itself, Rashtriya Lok Dal (RLD) leader Harcharan Singh, then 38, married Sulekha Chaudhury , then 32, nearly 12 years ago. Chaudhury was an SC. Harcharan Singh wants his “eligible“ wife to stand for elections from Iglas. Iglas constituency has been reserved for 25 years, of which 10 years have gone by .
“For 2017, my wife shall be the face of my politics,“ said Harcharan, defending his marriage as apolitical. “We got married years ago and there was no politics behind it.But now I want to live my political aspirations through her,“ he added.
“It used to be a general seat earlier and Chaudhury Rajinder Singh was our leader then.I have always been attached to Lokdal party and worked for it. People know me, but since I am OBC I do not have a chance,“ Ravinder Singh said.
“I have nurtured this constituency . Now if I marry an SC girl I can serve the people through her,“ Singh said. His situation is similar to that of BJP leader and zila panchayat member Meghraj Singh, who divorced his wife for “personal reasons“ and married an SC girl named Kusum Chaudhury three months ago to, in his words, “pursue my political dreams through my wife“.
“I was actively involved in the Ram Mandir movement, but have been helpless ever since the seat got reserved. I want to be an MLA but now I will have to live the life through my wife,“ the BJP leader said. Singh is quick to add, “Of course, she is capable of doing things on her own, from getting a ticket to fighting elections.“ Instances of political alliances to take advantage of reservations are not new in Uttar Pradesh, particularly at the panchayat level.
The trend of elected women leaders “outsourcing“ their power to sons and husbands has been analysed by experts in the past, particularly with regard to panchayat elections, where the male members wield the actual power in reserved seats.
Judiciary: quotas in the
HC: No quotas in Maharashtra judicial posts
Shibu Thomas
No quotas for judicial posts in Maha, rules Bombay HC
Reservations are not applicable for judicial posts in Maharashtra, the Bombay high court ruled on Tuesday . In an important order, a division bench of Justices Ranjit More and Rajesh Ketkar rejected a plea that sought implementation of 3% reservation for persons with disabilities to the posts of civil judges and judicial first class magistrates.
“The reservation in judiciary by the state without consulting the high court or without concurrent recommendation of the HC is an encroachment on such exclusive powers,“ said the judges, while pointing to Supreme Court judgments that had said an “independent judiciary is a basic structure of the constitution and the HC alone can recognise vacancies and the reservation (to judicial posts) even if provided by the state.“
The court was hearing a petition filed by Sushil Sonawane, an advocate, who has cerebral palsy . Sonawane had sought implementation of the reservation provided under the Persons with Disabilities Act for the posts of civil judges and JMFCs.
Marriage, conversion
Reconverted SCs entitled to all the benefits
Feb 28 2015
SC: Reconverted Dalits must get quota benefits
In a landmark judgment, the Supreme Court has ruled that if a person with Dalit ancestry reconverts to Hinduism, he would get back his caste status and benefit of reservation. “A person who is born to Christian parents who had converted to Christianity from Scheduled Caste Hindu can avail the benefit of caste certificate after his embracing Hinduism, subject to other qualifications,“ a bench of Justices Dipak Misra and V Gopala Gowda ruled on Thursday .
“There cannot be any soundness of logic that he cannot avail the similar benefit because his grandparents were converted and he was born to parents who were Christian,“ said Justice Misra, who authored the judgment for the bench.
The bench laid down a three-fold criteria for a re-converted person to get back his caste status and consequential benefits accruing to that caste for employment and education.The only caveat is that on reconversion, the dalit community must accept himher as a member of the community .
“There must be absolutely clear cut proof that he belongs to the caste that has been recognized by the Constitution (Scheduled Castes) Order, 1950; there has been reconversion to the original religion to which the parents and earlier generations had belonged; and there has to be evidence establishing the acceptance by the community ,“ the bench said.
The case was related to the refusal of Scheduled Caste certificate to one K P Manu, whose great grandfather belonged to Hindu Pulaya community in Kerala. Manu's father had embraced Christianity and took a new name, Verghese, and married Mariam, who earlier belonged to the Hindu Ezhava community and had converted to Christianity.
Marriage: SC/ST woman to retain tag
Swati Deshpande | TNN
From the archives of The Times of India 2007, 2009 2010
Mumbai: The Bombay high court on Friday held that a woman belonging to the SC/ST category by birth would retain her caste even after marrying a man who was from an upper caste.
The bench of Justices B H Marlapalle, Abhay Oka and R Y Ganoo said that a woman would not lose her caste by marriage and it did not change to that of her husband’s. In fact, as ruled by a Constitution bench of the SC,
‘‘Caste is acquired by birth and does not undergo a change by virtue of marriage or even adoption.’’ The apex court had also laid down that a woman from a general category married to a SC/ST man would also not automatically gain voluntary mobility into the backward caste.
The ruling came in a case of where a man and his family members were seeking protection from arrest last year in a criminal case filed against them under the SC and ST (Prevention of Atrocities) Act for abusing his SC wife.
Muslims: quotas for
From the archives of The Times of India 2007, 2009
Andhra HC strikes down Muslim quota
Says Law Based On Dubious Data May Spur Conversions
TIMES NEWS NETWORK
A seven-judge bench of the Andhra Pradesh high court headed by chief justice A R Dave on Monday struck down as “unsustainable” the state law providing 4% reservation in educational institutions and jobs for 15 Muslim groups deemed backward by the state government.
The bench described findings of the AP Backward Classes Commission — on which the quota law had been based — as ‘unscientific’. Within hours of the verdict, chief minister K Rosaiah said his government would move Supreme Court in appeal and vowed to restore the ‘AP Reservation in Favour of Socially and Educationally Backward Classes of Muslims Act, 2007’.
In a 5-2 majority ruling, the court found that the Commission neither evolved any criteria nor published these before inviting objections. It had merely stated that it had followed the two criteria evolved by the Mandal Commission for identification of Socially Economic Backward Classes (SEBC) among non-Hindu community.
Chief Justice Dave, speaking for himself and Justices A Gopala Reddy, V Eswaraiah and G Raghuram, said the enactment was religion-specific and potentially encouraged conversions and was thus unsustainable. The bench said the commission relied excessively on data collated by the Anthropological Survey of India, which was meant for determining the profile of the Indian population and not for deciding on affirmative action for Muslims.
‘Panel’s approach is non-scientific’
Hyderabad: The AP Backward Classes Commission’s procedural error in determining Muslim backwardness was fatal to its report and its consequent recommendation, the state’s high court said while striking down affirmative action for the community.
‘‘The fast track approach adopted by the commission was nothing but a non-scientific method,’’ Justice Dave said. It was neither ‘‘legal nor sustainable’’, he declared. The action of the panel was also criticized for its reliance on recommendations made by P S Krishnan, a retired IAS officer deputed by the state to conduct the survey on the commission’s behalf. The appointment of Krishnan is ‘protanto invalid’, the bench said and faulted the panel for relying on his findings.
Echoing the majority view in a separate judgment, Justice Meena Kumari said the investigation by the panel was not based on real facts, data or analysis and was without proper survey. The commission limited its survey to six districts in three days, she said.
Justice Prakash Rao aired the minority view holding that the bench was not called upon to adjudicate the list but was only required to answer a legal reference. He said that the government had some data before it on which it acted and thus could not be faulted. Justice DSR Varma said he did not agree with the majority view and would give his rea2sons shortly. The Advocate General sought suspension of the order which was rejected by the bench.
The Andhra government has long struggled to provide quotas for Muslims, who were first given reservation in July 2004, a month after Y S Rajasekhara Reddy came to power.
Telangana: backward Muslims gets 12%
The Telangana assembly on Sunday passed a bill to provide 12% reservation to backward Muslims and 10% to Scheduled Tribes, taking the quantum of quota to 62% in jobs and education.
With the quota percentage crossing the Supreme Courtmandated 50% cap, the state government, which has modelled the bill around the Tamil Nadu formula, will request the Centre to incorporate it in the Ninth Schedule of the Constitution to avoid court scrutiny. The bill was unanimously passed after five agitating BJP MLAs were suspended by the speaker and marshalled out of the House. A special session was convened to hike the quota, which was a poll promise of the ruling TRS in the state.
“This day will go down in history books. The TRS has fulfilled another promise by hiking reservations for poor Muslims and STs. I will take the battle to Delhi, if the Centre fails to approve the hike. My government will not hesitate to approach the Supreme Court,“ said CM K Chandrasekhar Rao.
“Are Muslims not our citizens? When backward groups in every caste and religion are being provided with relief, why not Muslims,“ he asked.
As of now, reservation for Muslims in the state stands at 4%, under the OBC category , and the STs at 6%. KCR also hinted at an increase in reservation for Scheduled Castes by another 1%-2%.
Quotas not applicable on…
Single vacancies: SC
The Times of India, Sep 24 2015
Dhananjay Mahapatra
The Supreme Court ruled that reservation for scheduled castes, scheduled tribes and other backward classes would not apply if the government was filling a single post in a cadre. However, it clarified that if a person from the reserved category was already in government employment and eligible for the single post through departmental promotion, then appointing him to the single post would not be vitiated.
Referring to two earlier judgments, a bench of Justices Dipak Misra and P C Pant said, “It is eminently explicit that reservation for a single post in a cadre will keep the general members of the public in total exclusion and the question of reservation will arise when there is plurality of posts in the cadre.“
The bench married the two earlier orders to enunciate that if a person from reserved category , already employed with the government, was appointed to the single post through due process of prom otion, it would not fall foul of an earlier Constitution bench judgment which barred reservation for single posts.
The Constitution bench in the `Postgraduate Institute of Medical Education and Research, Chandigarh vs Faculty Association' case in 1998 had held that “in a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of backward classes and in total ex clusion of the general members of the public“. “Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework,“ it had said.
A year later, in 1999, the SC n Punjab vs R N Bhatnagar had said that when posts in a cadre were to be filled from wo sources -departmental promotion and direct recruitment -once both entered a common cadre, their birthmarks disappeared and they got completely integrated in he common cadre.
Failed students: quota no shield for them: Delhi HC
The Times of India, Jun 19 2015
The Delhi high court refused to grant relief to a second-year undergraduate student at Guru Gobind Singh Indraprastha University whose admission was cancelled after he failed to clear his previous four semesters.
The HC further said, “Since the appellant was found ineligible after the second academic break, his admission stood automatically cancelled. Therefore, there is no question of any further chance only on the grounds of him being an SCST,“ a division bench of Justices Mukta Gupta and VP Vaish said.
Rejecting the plea of Gourav Joshiya, who was pursuing Bachelor of Technology from Amity School of Engineering and Technology , the bench upheld the single judge order refusing another chance to the student for clearing the exams and said the opportunity would have been given to him if he had been able to satisfy the necessary eligibility criteria.
“To attain an egalitarian society, we have to urgently remove socio-economic inequalities. Therefore, in order to promote weaker sections of the society , an educational institution must provide all forms of additional assistance to bring them at par with general category students. The appeal of the appellant may have been allowed on this ground alone, if he would have been able to satisfy necessary eligibility criteria for continuance of his admission with the respondents,“ the bench said.
Gourav had challenged a single judge order of May 25, denying him a chance to reappear in the examinations to get admitted to the third year. In his appeal, Gourav claimed he had sent a mercy application to the university's committee in October 2014, but through a notification on November 7, 2014, it was rejected and his admission was also cancelled.
He had contended that the judge had misconceived that he had to appear in 10 papers, whereas he had to appear only in five. The university , however, told the court that during the academic year 2012-13 and 2013-14, Gourav had reappeared in the failed papers of first year and second year but could not clear them and hence failed to secure the minimum credits for promotion to third year.
Technical posts: reservation exempted
1975 HRD order exempts technical institutes from quotas
NEW DELHI: The dominant view in many IIMs is that the only way to resolve the demand for reservations in faculties in the premier institutes could be through the withdrawal of the 1975 HRD ministry order that exempted them from having quotas.
One IIM director said, "We are bound by the 1975 order. There has been no other order from HRD ministry invalidating exemption from reservation to SCs/STs/OBCs." He said, the 1975 order was first issued in 1974 for School of Planning & Architecture giving it exemption from reservation in teaching jobs. The order said SPA being a technical education institute, it is being allowed an exemption.
"It is for the HRD ministry to find out how an order meant for technical institutes was extended to IIMs that were management institutes," one IIM director said putting the blame on the ministry for creating confusion. In 1975, an exemption was given to IIM Ahmedabad and soon other IIMs adopted it.
IIM directors also point out that withdrawal of 1975 order cannot be done in haste. "If the order was issued after a Cabinet decision, then HRD will have to seek Cabinet approval. It is not going to be easy," one director said, adding that it also needs to be found out what was the policy before 1975. Even if the proposed IIM bill allows reservation in faculty jobs, the earlier order has to be withdrawn, points out an IIM director.
PG medical quota not binding on states: SC
TIMES NEWS NETWORK
New Delhi: In a ruling having a major ramification for medical education, the Supreme Court on Wednesday held that the Centre’s decision to provide quota for SCs and STs in post-graduate medical courses did not automatically bind the state governments to follow suit and implement it in their medical colleges.
It took note of the fact that the Centre has provided for reservation to SC and ST candidates in the All India Entrance Examination for MD/MS/PG Diploma and MDS courses and also in the All-India quota PG seats, but firmly handed down the ruling that “the same cannot automatically be applied in other sections where state governments have power to regulate.”
Moreover, the Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal appeared disinclined to grant a direction to the states to follow the example set by the Centre. It upheld the Haryana government’s decision not to provide quota in PG medical courses.
“In our view, every state can take its own decision with regard to reservation depending on various factors,” said Justice Sathasivam. It said: “Article 15(4) is an enabling provision and the state is the best judge to grant reservation for SC/ST/Backward Class categories at PG level in admissions and the decision of the state of Haryana not to make any provision for reservation at the PG level suffers no infirmity.”
It accepted the Bhupinder Hooda government’s explanation that reservation in undergraduate medical courses is being provided strictly as per their policy but the PG level education in medical education was governed by the Medical Council of India (MCI).
Super-specialty (medical) posts
‘Only merit, no quota in super-specialty posts’
Dhananjay Mahapatra TNN
The Supreme Court on Thursday blocked caste-based reservations in appointments to faculty posts in AIIMS (All India Institute of Medical Science), saying merit alone should count at the super-specialty level. “There were certain services and posts where either on account of the nature of duties...or the level in the hierarchy... merit alone counts,” a constitution bench said, quoting from the judgment in the Indira Sawhney case that upheld 27% quota for OBCs in central services
AIIMS faculty posts
SC rules out reservation in AIIMS faculty posts
The apex court blocked castebased reservations in appointments to faculty posts in AIIMS saying constitution benches of the court had warned against reservation at super-specialty level.
“There were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such, situations, it cannot be advised to provide for reservations,” a five-judge constitution bench of Chief Justice Altamas Kabir and Justices S S Nijjar, Ranajan Gogoi, M Y Eqbal and Vikramjit Sen said quoting from the judgment by a nine-judge bench delivered in Indira Sawhney case.
The court quoted from Indira Sawhney verdict: “... in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts.”
Promotions
No quota in PSU bank promotions: SC, 2016
The Times of India Jan 9 2016
Exactly a year after holding that officers belonging that officers belonging to the Scheduled Castes and Scheduled Tribes can claim reservation in promotion from level 1 to level VI grade, the Supreme Court on Friday admitted that it had committed a mistake while passing the verdict and clarified that there can be no reservation in promotion.
SC: SC/STs can't claim quotas for govt job promotions
The Times of India, Mar 12, 2016
Amit Anand Choudhary
In a landmark verdict, the Supreme Court ruled that scheduled caste and scheduled tribe members cannot claim quota as a right in government job promotions, saying states were not constitutionally obliged to give preferential treatment to any community in promotion. A bench of Justices Dipak Misra and Prafulla C Pant said the government was not bound by any constitutional provision to frame a policy for reservation in promotion and the court could not order making reservation in promotion mandatory. Referring to Articles 16(4), 16(4-A) and 16(4-B) of the Constitution mandating socially affirmative action to help dsadvantaged groups, the court said states were not bound to make reservation for SCs/STs in promotion.
It said the provisions allowed the government to exercise discretion and provide for reservation only after collecting quantifiable data showing backwardness of a class and inadequacy of their representation in public employment.
Article 16(4-A) provides that nothing shall prevent the state from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services in favour of SCs and STs which, in the opinion of the state, were not adequately represented.
Present Reservation , quota system do not deliver social justice , it only enables political parties to gain political mileage.Economically weak families do not get protection while there are Rich , ... Read
The bench refused to direct Uttar Pradesh government to carry out an exercise to find the representation of SCs/STs in government jobs to frame a policy for reservation in promotion. "The state is not bound to make reservation for SCs and STs in matter of promotions. Therefore, there is no duty. In such a situation, to issue a mandamus to collect data would tantamount to asking the authorities whether there is ample data to frame a rule or regulation. This will be in a way, entering into the domain of legislation," the bench said. The Constitution granted discretionary power to the government to frame law for reservation in promotion and the government could not be forced to bring regulation on the issue, the bench said. "The courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and regulation or policy relating to reservation. The courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of subordinate legislation," the bench said while rejecting a PIL seeking a direction to the UP government to grant reservation in promotion.
See also
Caste-based reservations, India (the results, statistics)
The Scheduled Castes: statistics
Scheduled Castes of Kerala (list)
Maharashtra: Castes & Tribes, scheduled and backward
Scheduled Castes in Tamil Nadu
