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STATUS OF IMPLEMENTATION OF RESERVATION FOR SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES  

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On 28. 12. 2015, there was a panel discussion on the Puthiya Thalaimurai (a Tamil TV channel) against the background of a news-report in the Times of India dated 26. 12. 2015 stating that the employees of the Socially and Educationally Backward Classes (SEdBCs), also known as Other Backward Classes (OBCs) and Backward Classes (BCs), in Central Government Ministries, Departments and statutory bodies is less than 12%, excluding 40 Ministries and 48 Departments which have not furnished the information. This was based on the information obtained by Chennai-based scientist Thiru E. Muralidharan through the RTI Act.  I was one of the panelists. The channel personnel arranged for connecting me to the panel from my apartment in Gurgaon. Within the constraints of a panel discussion and loss of connectivity for some time, I could not mention all or much of what I wanted to say, from my experience of Reservation for SEdBCs at the Centre from 1.1.1979, when the appointment order of the Mandal Commission was issued under my signature as Joint Secretary, Ministry of Home Affairs in charge of  SC and BC Development and Welfare (and earlier in my cadre State of Andhra Pradesh — now AP and Telangana).  Therefore, I have prepared this Paper.

 

  1. 2. When the appointment order of the Mandal Commission was issued on 1.1.1979, the Janata Government led by Shri Morarji Desai was in power. Thereafter, I was the connecting link between the Government and the Commission and the only source of information and support in a milieu in which there was general hostility in Government towards the Commission, with rare exceptions. Shri B.P. Mandal had heard about my Social Justice background and on his invitation I met him and we discussed about the working of the new Commission and what support and help the Commission would need from time to time.

 

  1. 3. The Chairman and Members like Dr L.R. Naik used to contact me, seeking my views and suggestions. The Commission gave its Report on 31. 12. 1980. By that time the Congress had come back to power under Smt. Indira Gandhi. When the Commission submitted its Report that subject was entrusted to another officer, probably because of my long and uncompromising Social Justice background. For the next 10 years the Mandal Commission’s Report was treated like a football and a decision was evaded by series of meetings of Groups of Secretaries, Groups of Ministers, State Chief Ministers, nit-picking queries, long delays in replies and other procrastinating tactics.

 

  1. 4. The matter came into my hand again when I became the Secretary, Ministry of Welfare on 2.1.1990. It was based on my Note dated 1.5.1990, in which I gave a true picture of the Commission’s Report, the Constitutional imperatives, the condition of the SEdBCs and answered all the nit-picking queries of the previous 10 years, that the decision on 27% Reservation for the SEdBCs in the services under the Centre was taken early in August 1990. The game of nit-picking queries was re-enacted with me also by the Cabinet Secretary, but I answered every query within 24 hours or less. There was also a meeting of Secretaries convened by the Cabinet Secretary, in which almost all were against the proposal in my Note. One of the dissenters started his presentation with the words “now that you have decided to divide the society on the basis of caste”. Immediately I chipped in pointing out that the division of society on the basis of the caste system started many centuries back and the proposal in my Note was one of the measures required to unify the already divided society. After exhausting all the queries and all delaying tactics, there was no alternative but to place my Note before the then Prime Minister the late Shri V.P. Singh. Shri V.P. Singh, being a realist, apparently was aware that his Government would fall if he approved of Reservation for SEdBCs. After elaborate consideration Shri V.P. Singh had two late night meetings with the Minister Shri Ram Vilas Paswan and me on 6.8.1990 and informed us of his decision to recognize the SEdBCs as social classes deserving Social Justice measures including Reservation of 27% as recommended by the Mandal Commission. In the second meeting, I drafted the speech for him which he delivered on 7.8. 1990 in the Lok Sabha and on 9.8.1990 in the Rajya Sabha.  The OM (corresponding to GO of Southern States) issued on 13.8.1990 by the Ministry of Personnel, concerned with Reservation, formalizing this decision and providing certain other particulars, was essentially drafted by me.  Thereafter started a false campaign by leading journalists in Papers and though TV to create a scare among non-BC youth that their future was doomed, provoking widespread agitations against SEdBC Reservation in North Indian towns and provoking a number of non-BC, non-SC, non-ST children to commit self-immolation.  Those who provoked the children to commit self-immolation have not been called to account.

 

Statistical Picture

  1. 5. Let us start with the statistics. I have the official figures of representation of SEdBCs in the Central Government Ministries/Departments as contained in the Annual Report 2014-15 of the Ministry of Personnel, Public Grievances and Pension, tabled in the Parliament during the Budget session, as is done by every Ministry every year. The following Table gives these official figures in that Annual Report as on 1st January 2013, based on information from 69 Ministries/Departments.

BC Representation in Central Government Departments  as on 1st January 2013

based on information from 69 Ministries / Departments

  (1) (2) (3) (4) (5) (6) (7) (8)
  Group Total posts BC Actual % BC @ 27%

Should be

Deficit at 27% BC at 2/3rd of 27% i.e, 18% should be Deficit/Excess at 18%
(i) A 74866 8316 11.11% 20231 11915 13476 –  5160
(ii) B 188776 20069 10.63% 50970 30901 33980 – 13911
(iii) A+B 263642 28385 10.77 % 711833 683448 47456 – 19071
(iv) C – excluding Safai Karmacharis 2570757 472074 18.36% 694104 220030 462736 + 9338

 

(v) A+B+C 2834399 500459 17.6% 765287 264828 510192 – 9733
(vi)  C – Safai Karmacharis only 117681 23629 19.77% 31774   8145 21183 + 2446
(vii) A+B+C minus SK+C SK 2952080 524088 17.8% 797062

 

272974 531374 – 7286

Source: Annual Report of Ministry of Personnel, Public Grievances and Pension 2014-15

Note:     The figures in the Rows (i), (ii), (iv) and (vi) are in the Ministry’s Report.

On that basis, the figures in other Rows are computed by me

 

  1. 6. The following facts emerge from the above Table:
  • Giving the representation for all Groups of posts together does not give the full picture.
  •   One should look at disaggregated figures of BC representation in each Group
  • The disaggregated picture shows that BC representation in Groups A and B are at a woeful low — about 11%.
  • Representation in “Group C excluding Safai Karmacharis” [Group C(exclSK)] and “Group C Safai Karmacharis only” [Group C(SK)] ranges between 18% to 20%.
  • Before 1993, when implementation of BC Reservation actually started after the Supreme Court upheld the V.P. Singh Government’s Memorandum providing 27% Reservation for the identified castes of SEdBCs and after the fulfilment of the Supreme Court’s directions in its landmark Mandal judgment by the Government, following the Advice of the Expert Committee on Backward Classes, of which I was a Member and provided necessary inputs and guidance, employees who were in place were those recruited without reserved space for SEdBCs and, therefore, were mostly of the “upper” castes, especially in Group A and B and largely in the earlier Group C, which consisted of Assistant and Driver-level staff (the earlier Group D which consisted of Attenders etc. has been abolished  with the ceasure of recruitment at that level a few years back, and it has been merged in Group C).
  •   Those who entered Government service retire approximately after about 30 years on an average. Every year there are retirements. Therefore, one should expect 27% to be fulfilled by about 2023.

But, to ensure this, it has to be ensured that every year and during every period, recruitment of SEdBCs is 27% without any shortfall.

  • Now that we have completed 20 years after the belated commencement of Reservation for SEdBCs it would be legitimate to expect fulfillment of 2/3rds of 27%, i.e., 18%.
  • Columns (7) and (8) in the Table show the number of SEdBC employees that should be in position in 2013 at 18% and the deficit on that basis, which is in Group A and B.
  • This deficit has to be removed at the earliest and further accumulation of deficit in each of the next years up to 2023 should be prevented by proper implementation and regular monitoring.
  • Monitoring by Governmental machinery at different levels is necessary, but not enough.

There should be a powerful monitoring institutional set-up at the national level, State level and district level in which there should be authentic and devoted representatives of SEdBCs of different categories and Government representatives.

Representation of SEdBCs should not be token, and should be not less than equal to Government representatives.

Representatives of SEdBCs should not be chosen from persons who are connected with political parties. They should be devoted workers reputed for their work for SEdBCs or reputed experts who are committed to Social Justice (for SEdBCs,  SCs, STs, women).

  1. Certain Steps Required to Remove Road-Blocks to Full Implementation of 27% Reservation

(1)  Issue of the Creamy Layer (CL) or, more correctly and appropriately, the Socially Advanced Persons/ Sections (SAP/S)

 

(i)      The SEdBCs and their representatives have been expressing, from the beginning, their unhappiness about the “Creamy Layer” concept and the exclusion of the “Creamy Layer” (CL) ordered by the Supreme Court. I feel “Creamy Layer” is an inappropriate and pejorative term.  The correct term is “Socially Advanced Persons/Sections” (SAP/S) in the identified castes of SEdBCs.  This term has been more frequently used in the Mandal case judgment. They have been seeking its abolition. They feel, as also expressed by some of the panelists, that this is a primary cause of the shortfall, as many eligible candidates are excluded as SAP/S and the non-SAP/S candidates are not able to fill up all the vacancies.  This may be true of Groups A and B, but not of Group C(exclSK) and  Group C(SK).

 

What the Supreme Court laid down is the law of the land. It can be changed only by another Bench of the Supreme Court composed of judges not less in number than the Mandal Bench which had 9 judges. It will not be easy to get this change. The Supreme Court has been reiterating the principle of exclusion of “CL” or “SAP/S” in subsequent judgments also like the judgment in the Nagaraj case of 2005.

 

The alternative to this is an amendment of the Constitution.  This requires special majorities, not an ordinary majority. Even in matters where there is no difference, it has been so difficult and time-consuming to secure an amendment of the Constitution.  There are specific instances of this. The abolition of the concept of “SAP/S”  or  “CL” is a matter on which there are differences of opinion. The proportion and number of MPs belonging to the SEdBCs is less now than any time in the recent past. Even among the BCs, the More, Most and Extremely Backward castes of the SEdBCs have a different opinion.  Therefore, we have to find an alternative route, which is practical and may be less difficult.

 

The alternative route I have been suggesting, and mentioned in the panel discussion, is a Government Order whereby after exhausting all candidates of non-SAP/S or non-CL category in recruitment to any post in any cadre, whatever deficit is left should go to BCs of SAP/S or “CL” category instead of going to the so-called “General” category, which really means Socially Advanced Castes (SACs), i.e.,  the non-SC, non-ST, non-BC castes (NSCTBCs), as is happening at present.

 

This can be laid down, implemented and enforced through an Executive Order.

 

Elected and Other representatives of SEdBCs and NGOs working for them and other well-wishers of SEdBCs should strongly and unitedly press the Government of India for passing such an Order.

 

I would also like to inform the SEdBCs and other public that such a recommendation was made by a Standing Committee of the Parliament on my suggestion to certain MPs of that Committee in 2007-08 in the context of the Central Educational Institutions (Reservation in Admission) case [Ashoka Kumar Thakur vs Union of India, (2008) 6 SCC 1]. Though this was placed before the Supreme Court in that case and this point was urged, the judgment did not touch upon this.  It was neither accepted nor rejected. So, the field is clear for an Executive Order.

After passing this Executive Order, the more transparent and stronger measure of legislation for Reservation for SEdBCs in the services of the Centre, in which the direction in the above Executive Order finds place, should be sought.

 

(ii)     There is an unfortunate tendency in our country, which is not only against the interests of SEdBCs but also against the national interest, of filing Writ Petitions (WPs)/ Public Interest Litigations (PILs) against any legitimate and Constitutionally valid step taken to promote the  interests and fulfill the rights of the SEdBCs, and also SCs and STs and even women.

 

Therefore, one should expect and be prepared for WPs / PILs against an Executive Order as above.

 

The SEdBCs and their elected other representatives and NGOs and social workers working for them should set up a people’s machinery in all States and at the Central level to take note of any such WP/PIL in any High Court or the Supreme Court, and immediately contest it.

 

There are sufficient number of lawyers of the SEdBCs and also of the SCs and STs and women who can be brought into this set-up.

 

As soon as such an Executive Order mentioned at (i) above is passed, the first step should be to file a caveat so that no order or stay order is passed by any Court without hearing the SEdBCs.  Thereafter, when a WP / PIL is filed in the High Courts, the people’s set-up should move for all WPs/PILs in High Courts to be transferred to the Supreme Court by filing a petition in the Supreme Court on the ground that the subject does not pertain to any single State, but to the whole country and, therefore, it should be heard and decided only by the Supreme Court, so that confusion is not created by contradictory judgments by different High Courts.  This was the method we successfully followed in the Mandal case as well as in the Central Educational Institutions (Reservation in Admission) case.

 

There are sufficient strong grounds to argue before the courts that BCs of the SAP/S or CL category have a better claim from all points of view than SACs or NSCTBCs to the deficit posts for which adequate numbers of candidates of the non-SAP/S / non-CL category of BCs are not available leaving a deficit.

 

I am ready to help any organization(s) of or for the SEdBCs in preparing these grounds cogently and persuasively.

 

Even those who feel that the concept of  SAP/S or CL and their exclusion should be completely abolished can join in the effort for this alternative route as an interim and quick measure to protect the posts / seats of the SEdBCs.

 

(2)     Need for Full Statistical Transparency in Ministry’s of Personnel’s Annual Report in Future

  • Recently Nobel laurate Thomas Picketty, who has specialised in study of Inequalities and worsening Inequalities in recent times, when he came to India, pointed out that there is no adequate statistical transparency in India and very recently the level of transparency has diminished. This is true of statistics pertaining to SEdBCs, SCs and STs.

 

  • There are different levels in each Group of posts and vacancies.

 

  • To lump all of them together is to conceal the very low percentage of BCs reducing and tapering down as one proceeds up level by level.

 

  • For example, the Ministry should be required to furnish in every Annual Report disaggregated figures for each level of Group A, namely, Under Secretary, Deputy Secretary, Director, Joint Secretary, Additional Secretary, Special Secretary and Secretary. Similarly in respect of other Groups also.

 

  • The Ministry should also be required to furnish the deficit, Group by Group and level by level, and action, with all details, particulars and time-schedules, being taken to remove the deficit.

 

  • The Annual Reports should also furnish the number of defaulting Ministries/ Departments and their names, the names of officers responsible for the default and particulars of action taken /being taken against them, and furnish particulars of such action taken in the succeeding Annual Reports.

 

  • The Ministry should be asked to furnish in the Reports data regarding Public Sector Undertakings ( PSUs ) and Public Sector Banks (PSBs), universities, and other institutions to which Reservation applies, similarly segregated data Group by Group and level by level, including in Board of Directors / similar apex bodies in the case of PSUs and PSBs, and Lecturers/Assistant Professors, Readers / Associate Professors and Professors in the case of Universities and other appropriate units of disaggregation from bottom to top, level by level in the case of other institutions.

 

The Ministry will take the stand that it is concerned only with Reservation in the Central services.  Separate Ministries are created only for administrative convenience and not for avoiding a holistic picture of each subject. Therefore, the Ministry of Personnel should assume the role of coordination of all other Ministries concerned with Reservation other than in Central services, or a Ministry/Department of Reservation should be created. This Ministry or Department should be in the portfolio of the Prime Minister as the Ministry of Personnel now is.

 

  • The Ministry should be asked to furnish also the deficit Group by Group, level by level, Ministry / Department-wise and cadre-wise and similar units of disaggregation in other institutions and furnish steps taken / being taken to eliminate the deficit and prevent future accrual of deficits.

 

  • The Ministry should also be required to analyse and furnish data segregated as above cadre by cadre to identify areas of weakness, casualness, indifference deliberate negativism and to identify persons responsible and furnish particulars of action taken / being taken against such individuals.

 

  • These data will not be available in the forthcoming Annual Report for 2015-2016 for the year 2013-14 which will furnish the position as on 1.1.2014. Thereafter, soon after the next Annual Report is tabled, a Supplementary Report with all the missing data should be brought out by the Ministry of Personnel in coordination with other Ministries/Departments and autonomous organizations under the Government to which Reservation for SEdBCs applies, without waiting for the next Annual Report of 2016-2017.

 

  • During the Budget, only some Ministries are taken up for detailed discussions in the House.

 

Usually, the Ministry of Social Justice and Empowerment which is in charge of SCs and SEdBCs and the Ministry of Tribal Affairs are not taken up for such detailed discussions, indicating the sense of distorted priority of all Governments till now.

 

Therefore, the Minister for Parliamentary Affairs and the Prime Minister should be moved to provide for discussion on Reservation for SEdBCs and for SCs, STs, women, PwDs for detailed discussions in every Budget Session irrespective of whether the respective Ministries are slated for detailed discussions or not.

 

They may also be requested to provide for detailed discussion of comprehensive Social Justice measures, both legislative as well as programmatic / schematic, for the SCs, STs and SEdBCs every year in the Budget session, irrespective of whether the respective Ministries are slated for detailed discussions or not.

 

  1. Reservation for SEdBCs in States

           

The news-report of the Times of India and the panel discussion were only about the position of Reservation in the Centre.

 

Equally important is the position of Reservation in States.

 

The position of Reservation in many States is worse than the position in the Centre.

 

SEdBCs and their authentic and devoted representatives and friends should ask for similar data as mentioned in Para 7 (2) above every year from every State Government.

 

It will be still better, if in addition, the Central Government can also coordinate and furnish disaggregated data as above State by State so that weak areas can be identified and remedial steps taken.

 

The Centre should not avoid this by saying that Reservation in States is a State subject.   Reservation is a national issue and subject. The country is one. Therefore, it is appropriate that the Centre takes up a coordinating role with regard to Reservation for SEdBCs, SCs, STs, women and PwDs as it is doing, though not quite effectively and rather mechanically, in respect of the PCR Act and the SC and ST (POA) Act.

      

  1. Legislation for Reservation for SEdBCs in Posts and Vacancies under the Central Government
  • From what some of the panelists and the report in the Times of India and elsewhere said, it appears that they are under the impression that there is an Act regarding Reservation for SEdBCs in the Central Government.

 

  • This is not true in the case of the Centre and a number of States.

 

  • Reservation can be provided by Executive Order or by legislation.

 

  • Legislation is preferable as it is more transparent and tighter than Executive Orders.

 

  • Some States including Tamil Nadu, Odisha, Manipur, UP have legislations. Andhra Pradesh has a legislation of July 2007 for the newly introduced sub-quota of 4% for SEdBCs of Muslims identified by me in my Report of June 2007.

 

  • I have been interacting with every Government with regard to their CMPs from the point of view of SCs, STs and SEdBCs. Thereby, through my advice to Ministers, MPs and leaders concerned about Social Justice, I could get legislation for Reservation included in the CMP of the UPA Government in 2004, among certain other commitments to SCs, STs and SEdBCs in its CMP.

 

  • Drafting of legislations for SEdBCs was struck on the issue of SAP/S or CL and Reservation in Promotion.

 

  • In view of the Supreme Court’s judgment regarding SAP/S or CL and as no decision had been taken about Reservation in Promotion for the SEdBCs, the Government pleaded inability to provide for these two items in the draft legislation in respect of SEdBCs and the matter got struck there (the legislation for reservation for SCs and STs fell mid-way for another reason which I have explained elsewhere).

 

  • The prudent and practical course for the SEdBCs would have been and would now be to ask for reservation on the basis of and to the extent of existing Executive Orders, and after it is passed, get decisions taken by Governments on the two or three sticky points and then move for Amendment Bill to bring them in.

 

  • According to my practical experience of three and half decades in the Governments, it is not possible for everything legitimate and everything we justifiably want in a legislation at the first instance.

It would be prudent and practical to get what one can get at the first instance and move for amendments.  This is how I strategized the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 [POA Act] and the POA Act Amendment Bill 2015 (will formally become Act after President’s assent).  Many provisions in the amendment Bill / Act of 2015 were provisions which I had wanted in the original Act 1989.  If I had insisted on their inclusion in the Act of 1989, that Act would not have materialized. Because that Act was passed at that time, it became possible to secure the present amendment Bill / Act of 2015.

 

  • Legislation for Reservation is a Must. It is one of the items in the Road-Map furnished to Government after Government, leaders of each Government and of national parties, for bringing about Equality for SCs, STs, and SEdBCs with SACs/ NSCTBCs in all parameters of life, development and welfare.

 

  • If we are able by our joint effort to get an Executive Order as suggested by me in Para 7 (1) (i) above, we can move to get that point also included in the legislation.

If we are not able to get that Executive Order passed before the legislation, we may after the Act is passed, move for an amendment to include it.

 

  1. SEdBCs and their representatives and those who are working for them should take the trouble to secure justice in Reservation for them as a class and also for the different categories among them and also women among them and the disabled among them.

 

  • This is necessary, both as a matter of justice by spreading the benefit of Reservation widely down to the bottom and in order to preserve the unity of the SEdBCs.

 

  • The method which has evolved in this country is categorization of SEdBCs with sub-quotas for each category within the total percentage of Reservation for SEdBCs as a whole.

 

  • This practice evolved in the Southern States long back, in one case even before Independence.

Kerala has got the most elaborate scheme of categorization of 8 categories with sub-quotas ab initio.

Andhra Pradesh had ab initio 4 categories (namely Group A (Nomadic and Vimukta Jati castes), Group  B ( Occupational castes  which are essentially artisan castes), Group C  (SC Converts to Christianity and their progeny)  and Group D (other SEdBCs) and since 2007, on the basis of my Advice, a fifth category, namely, Group E consisting of SEdBC caste-like communities / inter-generationally continuous social groups of Muslims  identified  by me.

In Karnataka, the list of SEdBCs is divided into 5 categories.

In Tamil Nadu, SEdBCs are categorized as Backward Classes and Most Backward Classes and Muslim Backward Classes.

Maharashtra has also been having a scheme of categorization with sub-quotas.

 

  • The categorization in southern States has helped to spread the benefit of Reservation more widely among SEdBCs, and substantially prevented unequal competition among SEdBCs who are at different levels of backwardness.

There is some fine-tuning required in the scheme of categorisation in Karnataka, Andhra Pradesh (now AP and Telangana) and Kerala.

The categorization in Tamil Nadu is not complete and has to be made more comprehensive like the other 3 South Indian States.

The categorization in Maharashtra also needs to be made similarly comprehensive.

 

  • North Indian States took time to catch up in the matter of categorization of SEdBCs

 

First in North India was Bihar under the late Shri Karpoori Thakur, who had earned respect for his integrity and who belonged to one of the Most Backward Classes.

 

Now, some but not all States north of the Vindhyas have introduced categorization and sub-quotas.

 

  • The Centre, which ought to lead by example, is the last of the laggards. Despite numerous advices from me personally by letter, through Reports of Working Groups, which I chaired, and Steering Committees of which I was a Member, and personal discussions with Ministers and leaders of different Parties including the two Parties of Government, the Congress and BJP, and despite Advice of the NCBC in its Annual Report for 1999 on my initiative and subsequently also, the Centre has not moved in this matter.

 

  • Comprehensive categorisation is absolutely essential to prevent unequal competition among SEdBCs and consequent mutual ill-will within SEdBCs, which will damage unity among castes of SEdBCs and in order to secure unanimity not only in protecting and ensuring proper implementation of Reservation for them but also to secure other measures of comprehensive Social Justice which they need for reaching the goal of Equality in all parameters with the SACs/NSCTBCs.

 

  • Unfortunately, there is shortsighted covert resistance to this from the less backward castes, especially landowning castes of BCs.

 

  • As a result, there is no categorization of SEdBCs in such an important State as Uttar Pradesh and in the Centre.

 

  • Even in Tamil Nadu, categorization, limited in scope, was initiated only after the agitation of the Vanniyar

 

  • In all States, the less backward castes of the SEdBCs should act with farsightedness and generosity and take the initiative for establishing comprehensive categorization in all States and at the Centre, so as to prevent internal competition among unequals.

 

  • They can easily do this in States where SEdBCs are in power like Bihar, UP, Tamil Nadu, Assam,

and in other States and the Centre they can help to build a united movement to achieve this.

 

  • SEdBCs, along with SCs and STs, should also strongly and unitedly move for a share for women among them and the disabled among them.

 

Some States already have provided for 33% sub-quota for women among SCs, STs and each category of SEdBCs and Others with the stipulation that if adequate number of women are not available, the deficit should go to men of their respective class / category. The late Shri N.T. Rama Rao, former CM of Andhra Pradesh, pioneered this formula.

 

The sub-quota for women be 50% with the same stipulation, but should at least be 33%.

 

There are persons with disabilities in every class and category. The Centre has provided 3% Reservation for PwDs.

 

SEdBCs, along with SCs and STs, can move for 3% Reservation for PwDs among them with the same stipulation that if there are no enough number of PwDs, the deficit should go to the men/women of the same class / category.

 

This pattern should be provided in Reservation in posts as well as Reservation in education.

 

  1. 11. Position of Reservation in Education
  • There is a general tendency to focus only on Reservation in employment.

This is important but not enough.

 

  • Reservation in education is equally important.

 

SEdBCs and their authentic representatives and their friends should ask for and secure similar disaggregated data as in Para 7(2) above regarding Reservation in education every year.

 

  • In 2005, following the Inamdar judgment of the Supreme Court which held that under the existing Constitutional provisions, the Government does not have the power to required private medical and other professional institutions to provide Reservation, the Parliament with near-unanimity, with only one dissent, enacted the Constitution (Ninety-third) Amendment inserting new Clause (5) in Article 15, empowering (and, from the correct perspective, mandating) the State (that is Central Governments as well as State Governments) to lay down Reservation for SC, ST and SEdBC by law in Government educational institutions as well as private educational institutions [it is worth recalling that the first Constitution Amendment 1951, piloted by Prime Minister Nehru and Law Minister Dr Babasaheb Ambedkar, was enacted in response to the powerful movement mounted by Periyar following the Champakam Dorairajan case and Venkataramana case judgments of the Supreme Court. It was that Amendment and Clause (4) of Article 15, by which the State (Central Government as well as State Governments) was empowered to take any measures for the advancement of the SEdBCs and for the SCs and STs].

 

  • Under the new Clause (5), the Central Government enacted the law titled Central Educational Institutions (Reservation in Admission) Act, 2006 stipulating Reservation for SCs, STs and SEdBCs, but only in Government and Aided Institutions.

 

  • In many States, Reservation for SCs and STs, and in many States Reservation for SEdBCs also, was existing prior to the Inamdar

 

  • The Act was drafted carefully so as to ensure Reservation in such a way that the then existing open / general seats (which virtually were availed of by SACs/NSCTBCs) were not reduced.

 

This was achieved by increasing the number of seats in each institution not only to accommodate the Reservation percentages but additionally to ensure maintenance of the then existing open /  general seats.

 

Extra funds were provided by the Government for creating the additional infrastructure required on account of this increase.

 

If the increase of funds was limited to accommodate the new 27% Reservation for SEdBCs (SCs and STs already had Reservation in Government and Aided institutions), the extra funds would not have been required.

 

Thus, the additional expenditure was required only to help SAC/NSCTBC students

 

The term of teachers about to retire was extended.

 

Thus, before a single SEdBC candidate for admission could get the benefit of Reservation (stayed by the Supreme Court till April 2008), teachers (virtually all of them of the SACs/NSCTBCs) got the benefit of that Act.

 

  • Yet, our learned media referred to the additional expenditure incurred as expenditure for SEdBCs!

 

This is because our media, both printed and visual, have virtually no eyes or ears for the SEdBCs and SC and ST points of view with rare exceptions like the Indian Express, Frontline and Puthiya Thalamurai.

 

In the few occasions when I was invited in 2007 to panel discussions on channels like the CNN-IBN and my articles published in certain newspapers and periodicals, this irony of dubbing expenditure incurred for helping SACs / NSCTBCs as expenditure incurred for the benefit of SEdBCs did not register with the SACs/NSCTBCs and with the media in general which are dominated by the SACs/NSCTBCs.

 

  • Even then, this Act was challenged by WPs/PILs.

 

  • The then Minister for HRD the late Shri Arjun Singh, who was the political moving spirit behind the Constitutional amendment as well as the Law and the then Secretary the late Shri Sujit Banerjee, who always was positive about Social Justice, who were both aware of my role with regard to implementation of the Mandal Commission’s Report and its successful defence in the Supreme Court, wanted my help as Advisor to the Ministry in preparing the counter affidavits of the Government and guiding the Government and its lawyers to defend the Act.

 

I accepted this task on my usual condition that no remuneration should be paid to me for any work connected with the SCs, STs and SEdBCs as it is part of my life-mission.

 

  • I drafted the Government’s counter-affidavits and furnished essential inputs, of which most officers, political leaders and lawyers are ignorant of, to the then Solicitor General (subsequently Attorney General), the  late Shri Ghulam Vahanvati, and the then Additional Solicitor General (subsequently Solicitor General) Shri Gopal Subramanium  — both redoubtable lawyers —  and their    Both of them handsomely acknowledged in the open court, after completion of their respective arguments, that they were able to argue so effectively because of the inputs furnished by me to them.

 

  • I also furnished inputs to the Special Counsel, Shri K. Parasaran, former Attorney General and one of the greatest legal luminaries of our country, sincerely devoted to Social Justice, and also to counsels for States like Shri Ravi Varma Kumar of Karnataka (now Karnataka’s Advocate General) and also to counsels for SEdBC organizations.

 

  • As a result, our lawyers were able to completely demolish the arguments of the counsels for the petitioners, who included eminent lawyers like Shri Harish Salve and Shri P.P. Rao and we were able to get a unanimous verdict upholding the validity of the Act from a Constitution Bench of 5 Judges headed by the then Chief Justice Shri K. G. Balakrishnan, on 10 April 2008.

 

  • But, the then UPA Government did not proceed with the legislation for Reservation in private institutions, inspite of my advice in writing and in person to the then UPA Government’s Minister for HRD Shri Kapil Sibal, and the Ministry and I parted ways.

 

Nobody in the UPA Government took interest in this aspect of the matter, leaving the private sector colleges and universities free to reap rich harvest year after year of bloat fees and other levies and allowing the SC, ST and SEdBC students to be barred in effect from the private institutions which account for a large proportion of seats and which are continuously expanding, though the 93rd Constitutional Amendment and Clause (5) of Article 15 gave powers to the State to correct this.  Thus the Reservation policy in respect of SCs, STs and SEdBCs and also PwDs has indirectly been nullified and the Constitutional provisions mandating Social Justice including Reservation have been virtually abrogated in respect of the bulk of the seats in medical, technological and other professional seats.

 

We have to see what the present NDA Government will do to rectify this speedily.

 

  • I have subsequently taken this up personally and as Member of the National Monitoring Committee for Educational Development of SCs, STs and Persons with Disabilities (PwDs), during the UPA regime as well as the present NDA regime, in its three meetings chaired successively by Ministers Shri Kapil Sibal, Shri Pallam Raju and Smt. Smriti Irani.

 

  • All work at the official level has been completed. All that is now required is a political decision to enact the legislation for Reservation in private educational institutions (the main target being medical and other professional colleges and universities).

 

  • This political decision from all indications will come only when SCs, STs and SEdBCs jointly undertake a strong movement requiring the Government not to delay this legislation any more.

 

  • This is one of the legislative measures listed by me in my Road-Map of legislative measures and programmatic / schematic measures required to enable SCs, STs, and SEdBCs to teach the goal of Equality in all parameters, which I have circulated repeatedly to the leaders of the UPA Government and the NDA Government, and to leaders of various political parties, of which only one legislation, namely, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013, was enacted at the fag end of the 10-year rule of the UPA, and one other legislation, namely, the SC and ST (Prevention of Atrocities) Amendment Act, 2015 has been enacted by the present NDA Government  (I hope this too will not be a singleton, but in order to secure all other legislations and programmes / schemes, strong movements of the SEdBCs, SCs and STs are necessary).

 

  • The Ministry of HRD has set up a Drafting Committee for framing the New Education Policy under the Chairmanship of Shri T.S.R. Subramanaiam, IAS (Retd). The SEdBCs and also SCs, STs, women and PwDs should not miss this opportunity to place their case before that Committee, which has sought a two months’ extension of time for its Report.

 

  • No time should be lost in placing their case before the Committee. I am prepared to guide them if they seek my help.

 

  1. Other Issues which came Up during the Panel Discussion

 

(i)         One of the panelists referred to the judgment of a High Court judge in Gujarat who made an observation that the two things which in his opinion have held up the progress of India are (1) Reservation and (2) Corruption.

 

I brought this incorrect, irrelevant and painful observation to the notice of Dr Yogendra Makwana, Minister of State for Home during Smt. Indira Gandhi’s second regime.  He immediately convened a meeting of SC, ST, SEdBC leaders and representatives and lawyers in Ahmedabad on 12 December 2015 and based on the Resolution unanimously passed in that meeting, an Impeachment motion, signed by 58 MPs belonging to SCs, STs, SEdBCs, minorities and SACs has been moved in the Rajya Sabha in the Winter Session 2015.

 

Meanwhile, the judge who made this observation in para 62 of his judgment has himself expunged his own remarks as irrelevant to the case in which it was made.

 

  • SCs, STs, SEdBCs in every State should set up a machinery to monitor every judgment connected with them in which such observations are made and take similar steps.

 

Experience shows that popular and united moves will have their effect.

The panelist who raised this issue did so in the context of his feeling that justice for SEdBCs is sometimes not coming from the judiciary.

 

In this context, I pointed out that

  • There is an accumulated number of 400 vacancies in the country’s High Courts.
  • This is a golden opportunity for securing the due share of qualified SCs, STs, SEdBCs and women while filling up these vacancies.
  • These deprived classes / categories should make a united and strong representation to the Chief Justices of the respective High Courts who head the High Court collegiums for appointment of judges.
  • They should also make their united representation to the State Chief Ministers who will be consulted by the High Court collegiums
  • I am aware that qualified lawyers of each of these classes / categories are available.
  • Those who are appointed now will be in position for 15 or 20 years. If these deprived classes / categories fail to take advantage of this opportunity, it will never come again in the foreseeable future.  Representations should be cogent, logical, fact-based and persuasive.  I can help in this if required. I have already prepared a Paper on this.

 

(ii)        Merit List

 

One of the Panelists said that SEdBCs who come in the merit list, i.e., on the basis of their marks and ranking in open competition in the UPSC’s Civil Service examinations, are accounted towards the reserved quota of the SEdBCs.

As I pointed out in the discussion,

  • the Government of India’s (V.P. Singh Government’s) Memorandum of 13.8.1990 has unequivocally stated that SEdBCs who come within the merit list should not be counted towards the 27% quota of the SEdBCs.
  • This is part of what has been upheld by the landmark Mandal case judgment of the Supreme Court in 1990.

There are also other judgments of High Courts in cases pertaining to SCs and STs in which the High Courts have pronounced that counting of merit candidates towards the Reservation is unconstitutional.

  • If, inspite of this, in any instance merit candidates are accounted towards the fulfillment of the reservation quota, it can be successfully contested, at the UPSC and Government level initially and, if necessary, at the judicial level.

If specific instances are brought to my notice, I would be happy to help from my side also.

 

  1. 13. Thiru Muralidharan has done a good service
  • If he does not get replies pertaining to certain Ministries / Department within the timeframe fixed in the RTI Act, it is open for him to approach appellate authorities and, ultimately if necessary,
  • It will also be useful if he asks for information in a structured proforma based on what I have suggested at Para 7(2) above.
  • I can help him and others like him whenever they approach me.

 

  1. My appeal to brethren of the non-SC, non-ST, non-BC castes

 

  • One of the questions put to me by the anchor was whether in my opinion Reservation should continue in view of the voices raised seeking a review of Reservation policy

 

  • I then responded that
  • Some of the leaders who issued statements seeking review of the Reservation policy have themselves clarified / changed their views and subsequently stated that the present Reservation policy should continue as long as there is discrimination and social inequality in the country.
  • My appeal now, as I have done earlier, to our brethren of the SACs/NSCTBCs is

Please cooperate in the proper implementation of the Reservation policy for the SEdBCs as well as SCs, STs, women and PwDs until all deprived classes and categories reach the level of Social Equality with the SACs/NSCTBCs

 

  Please also cooperate with all Social Justice measures required for this.

 

  No one can abolish the Reservation policy

(though there can be improvements as I mentioned above like

categorisation)

 

All efforts to seek its abolition are futile. They can only create mutual ill-will between the historically deprived classes and the SACs/NSCTBCs

 

This is harmful to the national goal of social integration and one of our great Constitution’s Preambular goal of Fraternity. We have to remember that all classes have inevitably to live together in our country. Is it not better to live together harmoniously and peacefully than with ill-will and mutual resentments?

 

The SCs, STs and SEdBCs together account for about 2/3rds to 3/4ths of the country’s population.  Attack on this policy will only make them more united and determined.

 

  Some members of the SACs/NSCTBCs, who occupy the commanding heights of Governments, political parties and institutions, can and do hamper the implementation of Reservation policy by open hostility / covert hostility  / indifference / casualness

This can only slow down, but not stop, this essential process.

This will not only prolong the suffering of the SEdBCs, SCs, STs and women, but also hamper optimal economic growth of the nation which will harm the non-SC, non-ST, non-BC also.

 

  Wholehearted cooperation with this policy will create good feelings   among all classes and categories and ultimately help the annihilation of the obnoxious caste system and “Untouchability”

 

   The answer to the oft-repeated question, “How long Reservation?”, is

 

How long ‘Untouchability’”,

How long the caste system?”,

How long the discriminations and inequalities based on the caste system and ‘Untouchability?’”,

 

as I have written in an article of mine titled “How Long the Inequalities?” in the Frontline [April 26-May 9, 2008, Volume 25 (9)]

 

I pointed out during the panel discussion that all-round inequality caused by the malady of the caste system and “Untouchability” is still continuing.

 

I gave two of the many examples of this, namely,

 

  • The neo-natal infant and child mortality of the SCs and STs is the highest in the country, even worse than sub-Saharan countries.

 

The next are SEdBCs.

 

Far ahead of the SEdBCs are SACs/NSCTBCs

 

  • In the metropolis of Delhi (the data are for the Delhi State, which virtually means the metropolis of Delhi) right under the nose of Government of India, the percentage of Graduates and Above among girls and women, above the age 15, are, according to the statistics of the NSSO’s 61st survey is

SCs                          –        1.3 %

SEdBCs                   –        3.9%

SACs/NSCTBCs      –        26.9 %, far above the SCs and SEdBCs

(No STs have been notified by the President under Article 342 for Delhi)

 

There is plenty of data from various authoritative sources which show that in every parameter the SCs and STs are at the bottom. The SACs/NSCTBCs are far ahead at the top end, and the SEdBCs come in between the two, closer to the SCs and STs than to the SACs/NSCTBCs.

 

These are the cumulative results of the centuries of caste system and “Untouchability” and neglect of Social Justice, except to a limited extent without striking at the root, in the decades after Independence by Governments of all hues at the Centre as well as in the States.

 

Until this is rectified, there can be no talk of abolishing Reservation or providing Reservation for the poor among the SACs/NSCTBCs because they are not socially backward.  They can and should get educational support like scholarships and loans, without adversely affecting the financial provisions (much more than now) required for SCs, STs and SEdBCs.

 

It is ironical for castes like Patidars/Patel of Gujarat (one of the most socially advanced community nationally and internationally), Marathas of Maharashtra, the most socially advanced caste of Maharashtra, and Jat (a patently socially advanced caste) of a number of States of North India, to demand inclusion in the list of SEdBCs. The request of many of the socially advanced communities to be included in the list of SEdBCs have already disposed of  by the NCBC and State BC Commissions after detailed hearings and examination of documents (except Jat in Rajput-dominated parts of Rajasthan which has been most feudal and there was evidence to show that even Jats there was socially backward).

 

In the pre-2014 election flurry, the then Government at the Centre notified Jats as a SEdBCs in a number of States over-ruling the NCBC’s cogent adverse Advice and the State Government of Maharashtra notified Marathas as an SEdBC despite the rejection of their request by the State Government on the advice of the State CBC on more than one earlier occasions and the rejection of their Request by the Central Government on the Advice of the NCBC.

 

The Supreme Court and the High Court of Maharashtra lost no time in declaring these notifications Constitutionally invalid.

 

I would earnestly advise such communities, which have made signal contributions to the country’s advance to the present stage (so have SCs, STs and SEdBCs by contributing their labour) to desist from the illogical, futile path of agitations for their constitutionally invalid demand for their inclusion as SEdBCs and confine themselves to secure for the genuinely poor among them (with safeguards against false certificates of poverty) what is not Constitutionally prohibited such as scholarships and educational loans, without eating into the financial provisions required (much more than now) for SEdBCs, SCs and STs.

 

 

The two perverse orders of the two Governments could be got immediately reversed because the SEdBCs promptly filed WPs/PILs.

 

The lesson that SEdBCs in every State of India should learn is to establish their own State-level and national-level set-ups, along with SCs and STs, to monitor proceedings in courts, move and get themselves included as necessary parties and place the relevant facts and effectively oppose WPs/PILs which are against the legitimate interests of SEdBCs, SCs and STs.

 

 

I have written and circulated a separate Paper on the origin of Reservation in the pre-Independence India and its rationale. I can send them, on request, a soft copy of that Paper and three other Papers in the same series to those who have not got it.

 

This will arm them with logical and factual material in responding to the futile but influential calls for abolition of Reservation or for basing Reservation on poverty or economic backwardness or to include any caste of SACs/NSCTBCs in the list of SEdBCs or to include castes which did not suffer from “Untouchability” in the list of SCs or to include non-tribal communities, which do not fulfill the criterion of being tribes and other criteria, in the list of STs, Reservation for whom the Constitution has deliberately and correctly made no provision.

 

  1. 15. I am available as before to guide Governments and NGOs regarding effective action on comprehensive Social Justice measures including Reservation without accepting any remuneration, from my country-wide experience and knowledge of comprehensive Social Justice including Reservation in the last six-and-half decades beginning with my teenage, extending throughout my 35 years of service at the State and Central levels as an IAS officer, and after my retirement 25 years back which include periods as Member / Member-Secretary of the National Commission for SCs and STs and the NCBC.

 

  1. 16. As the news-reports and the subject of the panel discussion was only about Reservation for SEdBCs, I have not dealt with the status of implementation of Reservation for SCs and STs, which is another sordid story of neglect and slowing down.

I shall deal with it separately later.

 

  1. 17. I must congratulate and appreciate the civilized way in which the panel discussion was conducted, contrary to the cacophony of the panel discussions in the national English channels.

 

This is both because

the PT anchor did not cut into the observations of the panelists as done in the national English channels, and

all the panelists waited for their turn and never interrupted each other, again unlike the experience in national English channels.

 

The choice of subject was also refreshing — an important aspect of Social Justice, in this case focused on the SEdBCs.

 

The national English channels, by virtue of the birth-caste of the anchors and the panelists, are blind to Social Justice including Reservation and on the rare occasions when they speak about it it is with hostility and negativism.

 

The national channels, national only in name in respect of, but not covering, the vast area of Social Justice, have lessons to learn from Puthiya Thalamurai and certain other South Indian channels.

 

6 January 2016                                                                                              P. S. Krishnan

                                                                                           

______

            Shri P.S. Krishnan is former Secretary to Government of India and has been working in the field of Social Justice for SCs, STs, SEdBCs including SEdBCs of Minorities and their women and children, for the last six-and-half decades, as a life-mission.

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