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RESERVATION & CASTE & DISCRIMINATION ISSUES and other related…
RESERVATION & CASTE & DISCRIMINATION ISSUES and other related CONSTITUTIONAL Debates BY ATRISHEKHAR
some issues
The term Affirmative action is a more refined term for reservation initially used in public by former US President John F. Kennedy in 1961 in relation to equal opportunities between people of color and the
Whites. Affirmative action is thus followed even in the USA.
Affirmative action
is a set of anti-discriminatory measures that are provided to provide access to preferred positions in society to those groups who would otherwise be excluded or may go unrepresented
These preferred or elite positions were monopolized by the upper sections of the society based on their gender, caste, class, etc. By providing affirmative action, the state is trying to alter the social composition of elite positions
To uplift the status of backward classes, two approaches were proposed.
Gandhian Approach
or the Spiritual Approach.
Ashwini Deshpande in her book on affirmative action in India uses the term Evangelical Approach
This approach basically revolved around the moral regeneration of upper castes of Hindu society through philanthropic uplift of the backward sections.
Ambedkar's approach
namely the Objective Approach
was secular
in nature and not spiritual as invoked by Mahatma Gandhi. Ambedkar rejected the notion that there is going to be a change of heart of the upper sections regarding the Dalits
He said we cannot wait for
many years for this moral regeneration to take place and thus we need objective measures like certain provisions in the Constitution itself for the upliftment like the prevalent provisions for SCs and STs in
the Constitution itself.
The debate also revolved around that
under which religion should the SCs be categorized
. Since the
discrimination was based on the Hindu system, a natural inclination would be to classify all as Hindus
But many of the SCs had converted to other religions too. So, the categorization that was initially limited to Hinduism was soon extended to Buddhism and Sikhism too
the categorization of STs
and OBCs is religion-neutral and can be categorized from any religion.
However many of the SCs also converted to Islam and Christianity and did not get the benefit of the affirmative action policies due to their non-inclusion in the SCs list.
Thus, many commentators have
claimed that such a policy is biased towards lndic religions.
Thus, a petition challenging this anomaly is pending in the Supreme Court.
The court said that the benefits arising out of affirmative action for SCs would not be applicable for members professing Islam and Christianity, but if the members converted back to either Hinduism, Buddhism, or Sikhism, they can avail themselves of, the affirmative action benefits
Pratap Bhanu Mehta, a commentator remarked the court is extending affirmative action benefits not on the basis of deprivation status of a community but their conversion status
Secondly, the court also had said that the community needs to accept back the conversion.
Mehta remarked that the constitution provides freedom of religion to each individual citizen, then how can the acceptance of a community be deemed a valid criterion for the acceptance or non-acceptance of faith by a citizen, thus creating an entity similar to Khap Panchayat and was also promoting agendas like GHAR WAPSI
The first person in India to provide such quotas was King Shahu IV, the ruler of the princely state of Kolhapur in 1902 who carried out the first organized step in the upliftment of Dalits.
The 1931 Census carried out by the Census Commissioner J.H. Hutton was the first caste census ever done in India.
On the
recommendations of J.H. Hutton, the first list of Scheduled Castes was published
He used many criteria to classify these castes, but the primary criteria were namely the temple entry restrictions and
pollution by touch or proximity
There was a similar exercise done regarding the SECC, but it was an exercise
carried out separate from the Census and its results have not been revealed yet
A new problem also arose with regard to communities like
OBC and their status with respect to affirmative action
.
In the original constitution, the affirmative action benefits were
availed only by the SCs and ST
s. But later the
OBCs were added
to it
In 1979, the government-appointed
Mandal Commission
,the commission came with the figure that
52% of the population of India belonged to OBC
, a figure that they derived by
extrapolating the 1931 Census
commission recommended a reservation of
27% quota for the OBC community in jobs and educational seats
pertaining to Central Government
This recommendation was
partially implemented
by the VP Singh government in 1990, i.e. they
implemented the quota
only in Central Government jobs and not in educational institutes.
In 2006,
the same
quota was extended to educational institutions
COURTS USE --
Norm - Exception
framework Vs.
Norm - clarification
framework
Norm - Exception framework is adopted by the court.
मानदंड - अपवाद ढाँचा न्यायालय द्वारा अपनाया जाता है।
Hence, a cap on 50% to be mandated, otherwise it won't be an exception anymore and it
becomes a norm.
on this Jat and Maratha quotas were nullified by the apex court
However, intellectuals say that it should be based on a norm-clarification framework हालाँकि, बुद्धिजीवियों का कहना है कि यह एक मानक-स्पष्टीकरण ढांचे पर आधारित होना चाहिए
which
allows the quotas to go above 50% if it is for equality.
adopted in EWS case
NATIONAL COMMISION SC & ST
Identification of SCs
In Article 341, the provisions say
only the Central Government has the power
.
Thus, the President in
consultation with State Governments via the Governor notifies the list of SCs through a public notification
Any subsequent modification to the list can be carried out only through the Parliament
through a law.
Thus post the SC Constitutional Order of 1950 that specified the list of SCs, any further modification to
the list is carried out by the Parliament.
This power of the Parliament is mentioned in the second clause
of
Article 341.
It also further states that this modification of the list cannot be carried out through any subsequent notification thus
disallowing the executive from carrying out the action and vesting the power in Parliament.
The Central Government prepares the list of Scheduled Castes in consultation with State Governments of every state and compiles them to create a single central list of SCs.
SCHEDULED CASTE
Initially, the constitution provided for the appointment of a
Special Officer under Article 338.
This special officer was designated as the
Commissioner for Scheduled Castes and Scheduled Tribes
.
In 1987, the government, upon pressure from various Members of Parliament, decided to
form a multi-member commission for the welfare of the SCs
and STs instead of a one-member commission.
The
65th Amendment to the constitution
replaced the one-member system with a multi-member National Commission for Scheduled Castes and Scheduled Tribes.
The Constitution (65th Amendment) Act 1990, amended Article 338 of the Constitution.
The newly formed National Commission for Scheduled Castes and Scheduled Tribes
consisted of 5 members apart from the Chairman and Vice-Chairman of the Commission
.They are appointed by the
President by warrant under his hand and seal.
The Chairperson has been given the rank of Union Cabinet Ministers, the Vice Chairperson has the rank of a Minister of State and other Members have the rank of a Secretary to the Government of INDIA
The 89th Amendment in 2003 replaced this Commission with the following with effect from 2004:
National Commission for Scheduled Castes
NCSC is a constitutional body that works to s
afeguard the interests of the scheduled castes (SC) in India.
The Commission is also required to discharge similar functions with regard to the
Anglo-
Indian Community as it does with respect to the SCs.
Till 2018, the commission was also required to discharge similar functions with regard to the other
backward classes (OBCs).
It was relieved from this responsibility by the 102nd Amendment
National Commission for Scheduled Tribes
NCST was set up with effect from 19th February, 2004 by am
ending Article 338 and by inserting a new article 338A in the Constitution through the 89th Constitution Amendment Act,2003
Objective: Article 338A inter-alia gives powers to the to NCST oversee the implementation of various safeguards provided to STs under the Constitution or under any other law for time being in force or under any other order to the Government and to evaluate the working of such safeguards
Provisions For Upliftment of the Schedule Caste
Article 15(4)
refers to the special provisions for their advancement.
Article 16(4A)
speaks of “reservation in matters of promotion to any class or classes of posts in the services under the State in favour of SCs/STs, which are not adequately represented in the services under the State’.
Article 17
abolishes Untouchability.
Article 46
requires the State ‘to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.
Article 335
provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
Article 330 and Article 332
of the Constitution respectively provide for reservation of seats in favour of the Scheduled Castes and the Scheduled Tribes in the House of the People and in the legislative assemblies of the States.
Under Part IX relating to the Panchayats and Part IXA
of the Constitution relating to the Municipalities, reservation for SC and ST in local bodies has been envisaged and provided.
Article 15(2) addresses exclusions from civil rights., Article 23(1) addresses economic rights (right against exploitation),
Article 25(2) (B) addresses religious or ritualistic exclusions,THESE 3 forms a
new golden triangle against social exclusions
question
Whether the National Commission for Scheduled Castes (NCSC) can enforce the implementation of constitutional reservation for the Scheduled Castes in the religious minority institutions? Examine. (UPSC 2018)
SCHEDULED TRIBE
Identification of ST
As per
Census-1931
, Schedule tribes are termed as "backward tribes” living in the "Excluded" and "Partially Excluded" areas. The Government of India Act of 1935 called for the first time for representatives of "backward tribes" in provincial assemblies.
The
Constitution does not define the criteria for recognition of Scheduled Tribes and hence the definition contained in 1931 Censu
s was used in initial years after independence.
However,
Article 366(25)
of the Constitution
only provides process to define Scheduled Tribes:
“Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are
deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution.”
ARTICLE-342(1)
:
The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor, by a public notification, specify the tribes or tribal communities or part of or groups within tribes or tribal communities as Scheduled Tribe in relation to that State or Union Territory.
Few Related Committees
The
Lokur Committee (1965)
was set up
to look into criteria for defining Schedule Tribes.
The Committee recommended
5 criteria for identification, namely, primitive traits, distinct culture, geographical isolation, shyness of contact with the community at large, and backwardness.
Bhuria Commission (2002-2004)
focused on a wide range of issues from the 5th Schedule to tribal land and forests, health and education, the working of Panchayats and the status of tribal women.
A High-Level Committee (HLC) in 2013, under chairmanship of Prof.
Virginius Xaxa
was constituted to study the
5 critical issues related to tribal communities : (1) livelihood and employment, (2) education, (3) health, (4) involuntary displacement and migration, (5) and legal and constitutional matters.
Particularly Vulnerable Tribal Groups (PVTGs)
In
1973, the Dhebar Commission created Primitive Tribal Groups (PTGs
) as a separate category, who are less developed among the tribal groups.
In 2006, the Government of India renamed the PTGs as PVTGs.
PVTGs are more
vulnerable among the tribal groups
. Due to this factor, more developed and assertive tribal groups take a major chunk of the tribal development funds because of which PVTGs need more funds directed for their development.
Characteristics of PVTGs
they are mostly homogenous
with a small population
relatively physically isolated
absence of written language
relatively simple technology
a slower rate of change etc.
Among the 75 listed PVTG’s the highest number are found in Odisha.
Kalahandi Gram Sabhas write to NCST, invoke atrocities act against Jharkhand DFO
The Kasturapadar and Khasiguda Gram Sabhas of the federation had issued transit permits to a company, Green India, for carrying kendu leaves (also known as tendu), which are used to roll beedi, from Kalahandi to Dhulian in West Bengal in May this year. On May 31, the company’s truck, along with 400 sacks of kendu, was seized during transit by the DFO of Simdega forest division in Jharkhand.
The Kasturapadar and Khasiguda Gram Sabhas of the federation had issued transit permits to a company, Green India, for carrying kendu leaves (also known as tendu), which are used to roll beedi, from Kalahandi to Dhulian in West Bengal in May this year. On May 31, the company’s truck, along with 400 sacks of kendu, was seized during transit by the DFO of Simdega forest division in Jharkhand.
As per the Amendment Rules 2012 under the Forest Rights Act, the forest title holder vested with community rights can now use any means of transportation for Minor Forest Produce (MFP), including tendu leaves, and legally they cannot be restrained / obstructed from doing so, since interference with enjoyment of forest rights of SC / ST has been included as an offence under Section 3 (g) of SCs and STs (Prevention of Atrocities) Act, 1989 as amended
Article 19 of the Constitution guarantees the fundamental right to travel across the country, earn a livelihood anywhere in the country or settle down anywhere in the country. Now if a person who holds a CFR title wants to sell kendu in West Bengal, does it mean they have to personally go to West Bengal? Are such laws applied to any other commodity being traded in the country? How will an economy even function like this?”
some facts
There are over
700 tribes
which have been notified.
The largest number of tribal communities
(62) are found in Odisha.
No Tribe was identified in Haryana, Punjab, Chandigarh, Delhi, and Pondicherry.
The procedure followed here is similar to the provision followed for the inclusion and further modification that is carried out for the SCs
Ram Singh Judgement:
In 2014, on the eve of Lok Sabha elections, UPA governement decided to confer OBC quota on the Jats
with an eye on the elections to create a momentum in order to create a vote bank.
It was rejected by the Supreme Court in 2015 in Ram Singh judgement.
SC observed the following concerns:
Historic injustice cannot be the only basis for claiming reservation
ऐतिहासिक अन्याय आरक्षण के दावे का एकमात्र आधार नहीं हो सकता
quantifiable data would be needed to determine backwardness
data collected regarding the backwardness
needs to be contemporary
पिछड़ेपन को निर्धारित करने के लिए मात्रात्मक डेटा की आवश्यकता होगी
need for caste census arises
Social groups who are deserving of quota benefits or affirmative action benefits should be a matter of continuous evolution, as seen in the Transgenders case where they were placed under OBCs for affirmative action.
सामाजिक समूह जो कोटा लाभ या सकारात्मक कार्रवाई लाभ के पात्र हैं, उन्हें निरंतर विकास का विषय होना चाहिए, जैसा कि ट्रांसजेंडर मामले में देखा गया था जहां उन्हें सकारात्मक कार्रवाई के लिए ओबीसी के तहत रखा गया था।
Vertical Discrimination vs Horizontal Discrimination
लंबवत भेदभाव बनाम क्षैतिज भेदभाव
Identification of OB Cs and Role of NCBC:
Until the 102 Amendment Act, for a very long time both the Centre and states identified OBCs in
their respective Central and State OBC lists
. Similarly, the states also had a State Backward Classes
Commission to aid the States in this matte
In 1993, the Central Government set up National Commission for Backward Classes to aid the centre in matters related to the Union list under the NCBC Act 1993.
It would
entertain and dispose off requests concerning inclusion into the Central list
and hence the NCBC would advise the Central Government regarding this.
The law also says that the advice tendered by NCBC would be ordinarily binding on the governmen
t. Any deviations from the advice tendered would invite an explanation.
This law also provided that
every 10 years the Central Government would conduct a review
of the Central OBC list with a view to exclude those castes that have ceased to be backward now and include those that have been freshly identified as backward, for which the Central Government has
to consult NCBC
Article 338(B) and NCBC
A change came about through the 102nd Constitutional Amendment Act, 2018 through which
NCBCwas given constitutional status under Article 338B.
•
Earlier NCBC could not entertain complaints regarding the deprivation of rights of already identified OBCs like NCSC and NCST, this anomaly was sought to be removed through this Amendment Act.
•
The Act has been framed on similar lines as that of NCSC (Article 338) and NCST (Article 338A).
• The Act also added Article 342A giving the Commission similar powers concerning the identification of OBCs that the NCSC and NCST enjoy through Article 341 and Article 342 respectively
105th Constitutional Amendment Act, 2021
Thus, the 105th Amendment Act was passed in 2021 to correct this anomaly that had crept in which was not the intent of the Act. Article 342A and Article 338B were amended in this Act.
In Article 342A a third clause was added saying that every state can prepare their own OBC list, as the situation was before. Further, a clarification that the 102 Act meant only powers concerning the Central OBC list was added too.
In the Maratha Quota Judgement, the apex court remarked that by virtue of the 102 the power to identify OBCs has been vested in the Union government only as in the case of SCs and STs.
A further amendment was made in
Article 338B
where the existent provision was that each State Government had to consult with NCBC before any modification to the State List, this was sought to be amendd in the 105th Amendment Act. Thus, a proviso was added that this provision shall not restrict The State Government's power to identify their own state OBC list under Article 342A (3).
OBC Quota
• First such commission was set up in
1
953 - Kakasaheb Kelkar commission
• Second such commission set up 1979 - Mandal commission which recommended:
o 52% of population is OBC.
o 27% quota to be given to OBC in government jobs (1990) and central education institutions (2006).
•
Article 340 provided for the setting up of a body to deal with the socially educationally backward
classes of citizens &
to make reports to the Government of India from time to time.
OBC
Identification of backward classes would be subjected to judicial review.
To avoid political parties from giving OBC status to certain communities for the sake of electoral
gains.
Identify creamy layers
For government positions, creamy layer includes
If one of the parents holds a constitutional post
lf one ofthe parents is Group A - Direct recruit
Group B -father and mother both
Parents in armed forces - Colonel or equivalent.
In 1993, Ram Nandan committee was set up to identify creamy layer in OBCs.
In 2019, BP Sharma committee was set up, which said:
Only 2% of Indian household have an income of more than 12L
Increasing the cap to 12L would cover 99% of OBCs
For parents in non-governmentjobs, creamy layer is:
Income limit of Rs. 8 lakhs (not including salary income + agricultural income)
In 2017, annual income limit was increased from 6 lakhs to more than 8 lakhs
There is further demand for increasing from SL to 12L or lSL
Court states that annual income or economic background should not be the only parameter to
identify backward classes.
Is there a Right to Reservation?
Yogyakarta Principles
Bihar’s Caste-Based Survey and Challenges
Case for Caste Census:
• It is being said that OBCs constitute nearly 51 % of population while being awarded only 27% quota and hence their representation is less and hence courts should revise the 50% cap.
• The government conducted a Socio-Economic Caste Census (SECC) in 20 11, but the data has not been released on claims of inadequacies and imperfections.
• Unless a precise knowledge of the level on deprivation is known, any effort for targeted benefits is not feasible. Hence, there is need for another SECC.
Benefits of SECC:
Targeted interventions
Help in revision of lists
Take decisions based on accurate information
Justice Rohini commission also talked about subcategorization, where information of SECC would form the basis.
• While SCs and STs are being enumerated, there was no enumeration of OBCs.
Till 1931 caste census was being done, 1951 census onwards till 20 11, caste census is not being done.
Karnataka: Reservation for Muslims under the OBC category
Can Christians and Muslims Claim SC Status
Maratha Quota
Quota in jobs can be done based on executive order but for educational institutions, a law is required.
Hence the Maharashtra government extending the quota via executive action was unconstitutional.
Reasons Behind Increasing Demands of Reservation:
Has the quota policy been really beneficial?
• How can a policy that benefits 80% of the country's population be a wrong policy?
• It is because of quotas that we find the education gaps between the SC/STs and the general population have been significantly narrowing.
• It is also because of this quota policy that in the recent past, we have seen the rise of a
unique Dalit Middle class.
• According to experts, the quota policy is benefitting over 80% of the total population in India.
It is seen as a remedy for the adverse effects of ill-thought out development policies.
In developed states like Haryana, Gujarat and Maharashtra, in spite of their economies being relatively better, three things have been worrying the people:
Acute agrarian distress,
Stagnation in employment growth
Distortions in the development trajectory.
For governments, it is easier to talk of reservation than to make a course correction.
Increasing reservation demands among upper castes also arising from the fear of losing privilege and the inability to cope with change
Upper castes feeling disadvantaged especially in context of government jobs as they don’t get similar advantages like backward classes.
CASTE IN CALIFORNIA
SEP 2023, the California legislature passed SB-403, which amends extant disability legislation to make "ancestry" and caste-based discrimination illegal. It is the first US state to do so. While no form of discrimination - especially one as complex as caste - can be legislated away, the law is certainly a step forward.
Earlier this year, Seattle became the first city to recognise caste discrimination and in 2020, Cisco was sued by the state because two Indian managers allegedly discriminated against a Dalit engineer.
Law making caste-based discrimination illegal is a step forward. Prejudice must be brought into the light
Most may even want to discard the burden of caste in "the land of the free". Yet, some have carried prejudice with them too. If they act in an exclusionary manner, should they not face consequences? To label a move to address discrimination as "Hinduphobia" does disservice to both religion and ideas of natural justice.
Like every religious tradition, Hinduism has its warts - the treatment of the so-called
"lower castes" has been chief among them. In India, attempts have been made to address them through reservation, broader conversations and stringent anti-discrimination laws, including the SC/ST Atrocities Act.
Thus SEBC Act was passed in 2018 to give this to effect, this was challenged, and hence Bombay HC in 20 19, broadly upheld and accepted but reduced the percentage i.e. 13% in jobs and 12% in education. But Supreme Court has struck down the quota as unconstitutional.
Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021) case:
The Supreme Court affirmed the Indra Sawhney decision, and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment
1 more item...
• Quota was announced by Maharashtra government in 20 14, namely 16% for Marathas and 5% for Muslims in jobs and education. (courts have objected the conferment of backwardness to entire religion)
Chhatrapati Shahu Maharaj of Kolhapur made legally constitutional provisions for reservation in the state and private sector in July 1902. This was probably the first time a state ruler actively made social justice policies for his subjects
While doing so, he excluded those castes and classes who had enjoyed privileges and progressed based on the caste system. Thus Brahmins, Kayasthas, Shenvis and Parsis were excluded from the benefits of reservation.
While doing so, he excluded those castes and classes who had enjoyed privileges and progressed based on the caste system. Thus Brahmins, Kayasthas, Shenvis and Parsis were excluded from the benefits of reservation.
The British started collecting censuses in 1871 and recorded Kunbi as a caste prevalent in Maharashtra. Later, the British government divided Indian society into three main classes — Scheduled Castes, Scheduled Tribes, and the rest as intermediate classes.
On April 5, 1942, the Government of Bombay prepared a list of the reservation that recorded Maratha and Kunbi castes in the intermediate classes list. This list also included Mali, Teli, Lohar, Vanjari, Shimpi, and Dhangar, among a host of 228 castes presently included in Maharashtra State Other Backward Classes list.
However, only Marathas were excluded from the list in 1950 without providing any substantial reason. Since then, many Maratha organisations have demanded reservations.
In 1991, the Maratha Seva Sangh demanded an OBC status for the Marathas.
The Mandal Commission kept Marathas away and recognised Kunbis as separate, preferring etymology as an identifier instead of social history.
Who is a Maratha?
Anthropologically, there is no singularity in Maratha as an isolated caste. Maratha is a confederation of several Marathi-speaking castes. In addition to the language, those people who lived in Maharashtra were defined as Marathas
Thus, the ones who engaged in agriculture came to be known as Kunbis, Maratha Mali, Maratha Teli, Maratha Mahar, Maratha Kumbhar, etc.
2 more items...
However, the British government did not recognise them. They called them Kunbi till about 1920. Their status as peasant cultivators, landowners, and soldiers made a difference between a Maratha and Kunbi, while their ancestry was the same.
The government took the decision to provide Kunbi caste certificates to all Marathas from Marathwada who possess Nizam-era documents that recognised them as Kunbis
The idea of categorising the Marathas as OBC has its origins in the past. In Vidarbha, Konkan and parts of northern Maharashtra, the Maratha-Kunbis have already availed reservation under the OBC category for the past several decades.
The credit for availing reservation for Kunbi Marathas goes to Panjabrao Deshmukh, a Union agriculture minister in the Jawaharlal Nehru Cabinet, who led the demand back in the 1960s.
He played a major role in creating awareness among the Kunbi Marathas to fight for quota, which was accorded several decades later, after the Mandal Commission Report in 1992. In Maharashtra, the Congress government in 2004 officially accepted Kunbis under OBCs.
now OBC group objects
The state presently has 52% quota. The composition is as follows: SC 13%; ST 8 %; OBC 19%; State Backward Caste 2%; Vimukti Jati 2%; Nomadic Tribe 2.5%; Nomadic Tribe (C) (Dhangar) 3.5%; Nomadic Tribe (D) Vanjari 2%.
Apart from these, there is 10% reservation for the Economically Weaker Sections (EWS), which is applicable to households with annual income less than Rs 8 lakh. It is applicable to all non quota communities, irrespective of caste, community and religion.
Combined with the EWS, the total quota goes upto 62%.
In March 2023, the Kerala High Court invalidated the election of A Raja, a legislator from the Devikulam Assembly constituency in the Idukki district, belonging to the Communist Party of India (Marxist).
The court ruled that Raja, being a Christian who has been baptized, is not eligible to contest from a seat reserved for Scheduled Castes (SC).
Article 334 of the Constitution of India provides for the reservation of seats for Scheduled Castes (SC) and Scheduled Tribes (ST) in the Lok Sabha and State Legislative Assemblies.
The article stipulates that the provisions for reservation of seats and special representation for SCs and STs shall cease to have an effect on the expiration of a period of 70 years from the commencement of the Constitution.
The Constitution (Seventy-Seventh Amendment) Act, 1995 extended the period of reservation for another 10 years, i.e., till January 25, 2020. Later, the Constitution (One Hundred and Fourth Amendment) Act, 2019 further extended the reservation for another 10 years, i.e., till January 25, 2030.
The objective of providing reservations for SC and ST is to ensure their adequate representation in the Parliament and State Legislative Assemblies.
The reservation of seats is based on the principle of affirmative action, which aims to uplift the underprivileged sections of society and promote social justice.
The Constitution provides for the reservation of seats for SCs and STs in proportion to their population in the country.
The total number of seats reserved for SCs and STs cannot exceed 15% and 7.5%, respectively, of the total number of seats in the Lok Sabha and State Legislative Assemblies.
The Debate
During the framing of the Indian Constitution in 1950, an order was issued under Article 341, known as the Constitution (Scheduled Castes) Order. This order authorized the President of India to publicly notify and identify the “castes, races or tribes or parts of or groups within castes, races or tribes” that would be considered Scheduled Castes (SC) for the purpose of the Constitution.
Initially, the order recognized only Hindus as SCs. However, in response to political pressure, it was amended to include Sikhs in 1956 and Buddhists in 1990. Nevertheless, no provisions were made to include disadvantaged communities within the Muslim and Christian religions in the definition of SCs.
argument against
During the November 2022 hearing of
‘Centre for Public Interest Litigation and Another vs Union of India
’, the Central government argued that the Constitution
(Scheduled Caste) Order of 1950, which was challenged in the case, was based on historical data that showed no evidence of backwardness or oppression faced by members of Christian or Islamic society.
The government affidavit also stated that
Dalits convert to Islam or Christianity to escape the oppressive system of untouchability in Hinduism, which is not present in these religions.
Additionally, the government quoted a dissenting note from the
National Commission for Religious and Linguistic Minorities report, which asserted that Islam and Christianity are foreign religions that do not recognize the caste system.
According to the report,
granting SC status to converts would introduce the caste system into those religions.
recently
To address the
issue of granting Scheduled Caste status to individuals who claim to have a historical connection to the community but have converted to religions other than those mentioned
in the Presidential Orders issued under Article 341 of the Constitution, the Centre has formed a
three-member commission led by former CJI KG Balakrishnan.
The commission is set to submit its report in 2024. However, the question of whether Muslim and Christian Dalits should be eligible for reservations remains unanswered before the apex court.
As observed in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217, the Christianity does not acknowledge caste system. The same is the case of Muslims also. Therefore, it is strongly argued that it cannot be said that the members of these religions suffer from any social indifference, disadvantage or apathy.
It is also seen pointed out that the denial is out of fear that:
(i) the extension would adversely affect the existing ‘reservation-quotas‘ for Hindu, Sikh and Buddhist SCs/STs;
(ii) the Christians and Muslims would benefit from both ‘SC/ST-advantages’ and ‘minority-rights‘; and
(iii) it would lead to sudden ‘mass conversion‘ from Hinduism, Sikhism and Buddhism to Christianity and Islam.
LEGAL AND CONSTITUTIONAL interpretations
The National Commission for Scheduled Castes, on 22nd April 2010, had endorsed the recommendation of the NCRLM concerning the deletion of Paragraph 3 of the Constitution (Scheduled Castes ) Order 1950 for extending the Scheduled Castes status to Christians and Muslims of Scheduled Castes Origin.
The Constitution (Scheduled Castes) Order, 1950
no person who professes a religion different from the Hindu [, the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste.
Supreme Court Decisions
Indra Sawhney v. Union of India, 1992
Though Christianity does not acknowledge caste system, the
evils of caste system in some States are as prevalent as in Hindu society especially among the converts. I
n Andhra Pradesh, there are
Harijan Christians, Reddy Christians, Kamma Christians etc.
Similarly, in Tamil Nadu, there are
Pillai Christians, Marvar Christians, Nadar Christians and Harijan Christians etc.
That is to say all the
converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels.
Like Hindus, they interact and have their familial relationship and marital alliances only within the converted caste groups.” (Referred to in:
The State of Punjab vs Davinder Singh, 27 August, 2020: Arun Mishra)
Puneet Rai v. Dinesh Chaudhary, (2003)
State of Kerala v. Chandra-mohanan,
We, therefore, are of the opinion that
although as a broad proposition of law it cannot be accepted that merely by change of religion person ceases to be a member of scheduled tribe
, but the question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as such a question would depend upon the fact of each case.
1 more item...
The State of Punjab v. Davinder Singh, 2020
it is accepted that a person does not cease to be a member of the Scheduled Caste, automatically, on his conversion to another religion. (The bench relied on Punit Raj v. Dinesh Dhaudhary and State of Kerala v. Chandra-mohanan).
COUNTER ARGUMENTS
The Constitution of India
The Presidential Order, 1950 was promulgated disregarding the binding edicts in the Constitution, such as the Preamble, Articles 14, 15, 25, etc..
The Constitution of India, in its Preamble itself secure to all its citizens “EQUALITY of status and of opportunity”.
Article 14 of the Constitution eloquently guarantees “Equality Before Law” as the most valuable Fundamental Right as under:
“14. Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
Article 15 “(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
“Article25. Freedom of conscience and free profession, practice and propagation of religion:
International Declarations, Covenants and Recommendations
The United Nations’, ‘Report of the Committee on the Elimination of Racial Discrimination’, Seventieth session, 19 February -to- 9 March 2007
Article 2 of the International Covenant on Civil and Political Rights
Reports of Various Commissions and Committees Appointed by the Government of India
Report of Backward Class Commission headed by Kaka Kalelkar, , 1955
Parliamentary Committee on Untouchability, Economic and Educational Advancement of the Scheduled Castes (L. ElayaPerumal Commission Report) 1969
Report on Minorities by High Power Panel on Minorities, SCs and STs & Other Weaker Sections, Ministry of Home Affairs, Government of India, New Delhi, 1983
Mandal Commission Report of the Backward Classes Commission, 1980.
National Commission to Review the Working of the Constitution (NCRWC)(Justice MN Venkatachaliah Commission), 2002
National Commission for Religious and Linguistic Minorities – NCRLM: (Ranganath Misra Commission), 2007
The National Commissions for Scheduled Castes, 2004 (chairperson: Suraj Bhan), 2007 (chairperson: Buta Singh); 2010 (chairperson: P. L. Punia); 2013 (chairperson: P. L. Punia).
‘Pasmanda’,issue
‘Pasmanda’, a Persian term meaning “those who have fallen behind” refers to Muslims belonging to the shudra (backward) and ati-shudra (Dalit) castes and reconverts
It was adopted as an oppositional identity to that of the dominant ashraf Muslims (forward castes) in 1998 by the Pasmanda Muslim Mahaz, a group which mainly worked in Bihar.
Pasmandas encompass those who are socially, educationally and economically backward and make up the majority of the Muslim community in the country.
The term “Pasmanda” is majorly used by Muslim associations in Uttar Pradesh, Bihar, and other parts of India to define themselves as Muslim communities historically and socially oppressed by caste.
Backward, Dalit and tribal Muslim communities are now organising under the identity of Pasmanda. These communities includes:
Kunjre (Raeen), Julahe (Ansari), Dhunia (Mansuri), Kasai (Qureishi), Fakir (Alvi), Hajjam (Salmani), Mehtar (Halalkhor), Gwala (Ghosi), Dhobi (Hawari), Lohar-Badhai (Saifi), Manihar (Siddiqui), Darzi (Idrisi), Vangujjar, etc.
Reservation to religious minorities:
At present, there is no reservation in Civil Posts and Services under the GoI and admission to Central Educational Institutions for Minority Communities.
However, the Central Government carved out a sub-quota of 5% for minorities, as defined under the National Commission for Minorities Act 1992.
This will be within the 27% reservation for OBCs in Civil Posts and Services under the GoI and admission to Central Educational Institutions.
The constitutional validity of the matter is presently sub-judice in the SC.
march 2023 election agenda of bjp , but it lost in karnataka
Did away with the 4% reservation for Muslims in the OBC category.
● This 4% is to be distributed equally among the Veerashaiva-Lingayats and Vokkaligas – the 2 dominant land-owning communities in the State.
● Accorded internal reservation for 101 Scheduled Castes (SC).
why not valid
Vote-bank politics
● The Muslims were included based on the recommendations by the Sachar Committee, L.G. Havanur and Chinnappa Reddy Commissions.
● Any addition or deletion of a community from the reservation matrix should be based on an empirical study by the Karnataka BC Commission.
Bihar Caste Survey: Legal Battles
Petitions Challenging Survey: Multiple petitions contesting the Bihar caste survey have been filed in the Supreme Court, alleging the state government’s encroachment on the Union government’s powers.
High Court Ruling: On August 1, the Patna High Court permitted the state to proceed with the survey, deeming it legally sound, initiated with due competence, and aligned with compelling public interest.
Supreme Court Involvement: The Supreme Court declined to stay the survey on August 14, clearing the way for the ongoing data collection process.
Legal Contentions against the Survey
Constitutional Powers: Petitioners contend that the state lacks authority to conduct a census as it is solely within the Union government’s purview, as per the Constitution and Census Act.
Privacy Concerns: Challenges raised about data collection intruding on individuals’ right to privacy, given sensitive questions about religion, caste, and income.
Data Security: Some argue that the data collected should not be shared with political parties, as it raises concerns about privacy and potential misuse.
High Court’s Rationale for Upholding Survey
Affirmative Action: The High Court recognized the survey’s aim to identify and uplift backward classes, Scheduled Castes, and Scheduled Tribes for equal opportunities.
Competence of State Government: The Court ruled that the survey aligns with the state’s authority for better administration and policy framing.
Legitimacy of Caste Identification: The Court referred to Indra Sawhney’s ruling to affirm caste identification’s validity for ameliorating social backwardness.
In a landmark judgment the Indian Supreme Court has held that the
‘Yogyakarta Principles
on the Application of International Law
in Relation to Issues of Sexual Orientation and Gender Identity
’ should be applied as a matter of national law.
They provide authoritative guidance on the human rights of gay, lesbian, bisexual, transgender and intersex persons and the obligations of States to promote and protect these rights, ensure full equality and address discrimination
‘The right to non-discrimination on the grounds of sexual orientation and gender identity is both fundamental and universal and we call on all States to comply with the Yogyakarta Principles in developing and implementing laws, policies and practices in this
LGBTQIA+ In India
RECENT
In 1861, Britishers considered sexual activities “against the order of nature” including all homosexual activities to be criminalised under Section 377 of the Indian Penal Code.
In 1977, Shakuntala Devi published the first study of homosexuality in India, called “The World of Homosexuals”.
In 1994, they were legally granted voting rights as a third sex.
In 2014, the Supreme Court of India ruled that transgender people should be treated as the third category of gender.
National Legal Services Authority vs, Union of India
In 2017, the Supreme Court gave the country’s LGBTQIA+ community the freedom to safely express their sexual orientation.
An individual’s sexual orientation was protected by the Right to Privacy.
On 6 September 2018, the Supreme Court struck down the part of Section 377 which criminalised consensual homosexual activities.
Navtej Singh Johar v, Union of India
In 2019, Parliament enacted Transgender Persons (Protection of Rights) Act with an objective to provide for protection of rights of transgender people, their welfare, and other related matters
The Landmark judgment given by Delhi High Court in 2009 stated that Section 377 violates Articles 14, 15, and 21.
Naz Foundation vs. Government of NCT, Delhi
WHIL
Suresh Kumar Koushal vs. Naz foundation
The Court held Section 377 of IPC legal and re-criminalized homosexuality, i.e., sexual intercourse against the order of nature.
Several rights activists and advocates, including senior advocate Menaka Guruswamy noted that marriage is a “bouquet of rights” that the community is deprived of.
CJI remarked that the notion of a biological man or woman was not absolute and that “it’s not just a question of what your genitals are.”
To which, Mehta insisted that it was indeed a question of one’s genitals, whereby a man would mean a “biological man” only, limiting in his interpretation the legal definition of marriage to be exclusively between “biological men” and “biological women.”
The verdict, which has been reserved, challenges the fate of 20 petitions challenging four legislations—the Special Marriage Act (1954), the Hindu Marriage Act (1955), the Foreign Marriage Act (1969), and the Citizenship Act (1955)—all of which understand marriage as a heterosexual union between opposite-sex couples.
COURT SAID- We are going to examine the limited issue of whether the provisions of the Special Marriage Act can be read down to mean ‘spouse’ in place of ‘man or woman’ for the purpose of marriage.”
• In the
Mukesh Kumar Judgement
, Supreme Court said that there is
no right to reservation
Article 16(4) and 16(4A) are
enabling
provisions, but there is no fundamental right to quotas.
• But Art 14 which is a fundamental right implies equality before laws and equal protection of laws.
Equal protection of laws implies that
unequals too cannot be treated as equals
• If the whole quota system was to be scrapped tomorrow, all SC, ST and other communities would be treated equally, but their conditions would still not be equal, and hence here the unequals would be treated equally
In this sense, fundamental right to quotas exists, as equal protection of laws is also a fundamental right under Article 14
Article 46 also says that state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes &STs
National Eligibility cum Entrance Test (NEET)
• It is a common test for all central and state medical institutions for undergraduate as well as post graduate courses.
• State governments are entitled to reserve seats for their own domiciled candidates.
• In 1986, Supreme Court directed that a state cannot reserve all the seats in a local college based on domicile only, and allow some seats for all India quota.
• For those seats which the states surrender for all India quota, there was reservation for SC/ST quotas but there was no provision for OBC quota.
• Since January 2022, it has been extended now both to SC/ST and OBCs, as well to EWS.