Skip to main content

Reservations can't be seen as a scheme for poverty alleviation: PUCL tells Apex Court


Counterview Desk 
The People's Union for Civil Liberates (PUCL), India's premier human rights organisation, has said that the Supreme Court, by upholding reservation for the Economically Weaker Sections (EWS), strikes at the "basic structure of the Constitutional". By asserting that forward castes, as a grouping faces discrimination, much like the category of SC/ST and OBCs,  the Apex Court has resorted to a constitutionally inappropriate response, as it fails to recognize that  reservations cannot be seen as a scheme for poverty alleviation.
Signer by Dr V Suresh, PUCL general secretary, the statement says, the Apex Court through this judgment has "watered down the notion of `social justice’ as a rights-based protection provided to tackle entrenched caste discrimination and hostilities."
PUCL also regret, "By excluding SC/ST and OBCs from the EWS category, the share of SC/ST and OBCs is reduced from 50% of general category seats/posts to 40%. This is an egregious form of discrimination practiced by the state against the most deprived sections, unfortunately legitimized by the court now."

Text

The PUCL is concerned that the decision of the Supreme Court in `Janhit Abhiyan v Union of India’ upholding the constitutionality of reservations for `Economically Weaker Sections’ (EWS) does grave injustice to the vision of the Constitution makers who incorporated Art. 14, 15, 16 and 17 in the Constitution as a legal protection to counter historically entrenched and institutionalised social and cultural discrimination. These Articles, also referred to as the `Equality Code’, were unique as the Constitution framers provided for the fundamental rights of socially and educationally backward classes, including SCs and STs, through `reservations’ or `affirmative action’ as a means of achieving `social justice’, a task which remains unfinished, even today, 75 years after independence.
By upholding the Constitutionality of the 103rd Constitutional Amendment, the majority ruling of Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala have struck a blow to the `basic structure of the constitution’, disturbing a delicate constitutional balance evolved by the SC over the last many decades by holding that `social justice’ and `social criterion’ are key to fundamental right to equity. In effect, the majority ruling which holds that `economic justice has acquired equal focus alongside the principle of social justice’ has watered down the notion of `social justice’ as a rights-based protection provided to tackle entrenched caste discrimination and hostilities. The majority have also signaled in a way that the EWS could be ‘a first step in the process of doing away with caste-based reservation’.
Pared down to its essence the majority is asserting that `Economically Weaker Sections’ (EWS) are a grouping which faces discrimination, much like the category of SC/ST and OBCs. It is a fact that even among forward castes and other non-reserved communities there are poor people and there must be legislative and policy measures undertaken in accordance with the Directive Principles to alleviate their poverty. However, reservation is a constitutionally inappropriate response and reservations cannot be seen as a scheme for poverty alleviation.
In this, it is disappointing that all five judges, including the minority judgment authored by Justice Ravindra Bhat and CJI UU Lalit, deem reservation on economic basis constitutional. The court in its decision has given the go by to the precedent in `Indira Sawhney’ (1992) in which it was rightly held that economic criterion alone cannot be the basis to determine backwardness. The court has also given up on the rule that the maximum of reservation should be 50% which was laid down in Indira Sawhney case by holding that the EWS quota will not affect this calculation.
What is more damaging to the basic structure of constitutional protections so assiduously put together by Dr. BR Ambedkar and other social reformers, is the exclusion of SC/STs and OBCs from the EWS reservation. The exclusion of SC/ST and OBC from benefiting from the EWS quota is particularly invidious as SC/ST and OBC form a disproportionately high proportion of the EWS in Indian society. The minority opinion of Justices Ravindra Bhat and U.U. Lalit in fact notes that among the ‘entire population of ST’s, 48% are the poorest; among the entire population of Scheduled Castes 38% are the poorest and amongst the OBC’s no less than 33% are the poorest’.
In effect, this exclusion of poor SC/ST and OBC’s from benefiting from the EWS quota, implicitly sets up EWS as a category of reservation meant only for the forward castes. The minority is scathing in its observation that, ‘there is nothing to suggest, how, keeping out those who qualify for the benefit of this economic-criteria reservation, but belong to this large segment constituting 82% of the country’s population (SC, ST and OBC together), will advance the object of economically weaker sections of society.’
The minority judgment in its analysis of non-discrimination gives voice to the anguish felt by Dalit, Adivasi and human rights groups
It is to be noted that by excluding SC/ST and OBCs from the EWS category, the share of SC/ST and OBC’s is reduced from 50% of general category seats/posts to 40%. This is an egregious form of discrimination practiced by the state against the most deprived sections, unfortunately legitimized by the court now.
The 103rd Constitutional amendment’s benefits are limited to non-reserved castes, by implication forward castes, whose income falls within Rs. 8 lakhs limit (the limit being prescribed by government notification), an arbitrary and unrealistically high ceiling, which will further discriminate and exclude more deserving candidates who are actually very poor.
The minority judgment in its analysis of non-discrimination gives voice to the anguish felt and experienced by many Dalit, Adivasi and human rights groups with respect to the reasoning of the majority. The minority strikes down the amendment in-toto on the basis that, “Our Constitution does not speak the language of exclusion” while pointing out that for “for the first time, the constituent power has been invoked to practice exclusion of victims of social injustice, who are also amongst the poorest in this country”.
For the minority, the exclusion of SC/ST and OBC’s from the EWS category is violative of the `Equality Code’ in the Indian Constitution. The `Equality Code’ (Articles 14, 15, 16, and 17), is not “a bland statement of equality before law and equal protection of law”, but also contains “specific injunctions against state from discriminating on proscribed grounds” such as caste. It specifically references Article 17 as “an unequivocal injunction, against untouchability, of any form’ which ‘enjoins the state to forbear caste discrimination, overtly, or through classification, and looms large as a part of the equality code and indeed the entire framework of the Constitution.”
The exclusion violates the basic structure of the Indian Constitution. For the minority, ‘exclusion, with all it’s negative connotation – is not a constitutional principle and finds no place in our constitutional ethos’ and to allow for ‘exclusion of people based on their backwardness,’ is to destroy ‘the constitutional ethos of fraternity, non-discrimination, and non-exclusion.’
This aspect of the minority judgment is rooted in a correct understanding of constitutional principles and therefore to be welcomed. As Justice Khanna put it in his dissent in ADM Jabalpur, “A dissent in a court of last resort…is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”.

Comments

Anonymous said…
A suggestion ..the maximum reservation a class gets should be 50% of their respective population.
If a class is given reservation equal to its population % ..then they may not be allowed to compete in general category again.
So the Right to Equality of Opportunities is considered

if the historically socially backward constitute 75% of population ..they can be given 37.5% and if general category constitute 25% , they can be given 12.5% as maximum EWS
Anonymous said…
Ideally 100% belongs to all.
Now the historically socially backward can compete in 50% & general ..the economically socially backward can compete in 10% & general.The divergent view was.. the historically socially backward were not allowed to compete in 50%,10% & general category..
Anonymous said…
Both the 50% and 10% are taken from the 100% belonging to all irrespective of caste or religion...and cannot be meant to be perpetual rights of any particular section...all reservations are positive affirmative actions to uplift the marginalized and should be supported...

TRENDING

Corporate-political party nexus? Rise and rise of Gautam Adani under Modi regime

By Sandeep Pandey*  In last five years Rs 10,09,510 crore taken as loans by various companies from banks in India have been declared as Non Performing Assets, an euphemism for writing them off. Out of this State Bank of India alone wrote off Rs 2,04,486 crore. Only about 13% of the total written off amount was recovered. Identity of the defaulting borrowers, most of whom are influential corporates, is not revealed. Compare this to the loans taken by farmers. The names of defaulting farmers is displayed on walls in tehsil offices to shame them and some unlucky ones also land up in lock-ups there. On the contrary, a few corporate defaulters have fled the country and quite curiously the authorities didn’t seize their passports like they do with some dissenting intellectuals or activists booked under mostly false cases. Now consider the donations received by political parties in the form of electoral bonds. The identity of the donor need not be revealed even to the Election Commission or i

'Extremist' US Hindu global group funding hate against Indian Churches: NGO groups

Counterview Desk  As many as 14 civil rights and faith-based organizations in co-signing a letter to the US Senators, Representatives, State Governor, and other elected officials have demanded the FBI, Internal Revenue Service (IRS), and Department of Justice should investigate into Texas-based organization Global Hindu Heritage Foundation (GHHF) a fundraiser campaign for demolishing churches in India. Co-signed by Federation of Indian American Christian Organization in North America (FIACONA), North American Church of God, Southern Methodist University (SMU) Human Rights Program, Amnesty International - Dallas, World Without Genocide, Center for Pluralism, Genocide Watch, The Indian American Muslim Council (IAMC), Limitless Church, Justice for All, Hindu for Human Rights, North Texas Peace Advocates, Good Citizens of DFW, and the North Texas Islamic Council, the letter has been sent to Senators John Cornyn and Ted Cruz; Representatives Michael C Burgess, Pat Fallon, Van Taylor, Terr

Carbon abatement to tackle climate change: India's failure has 'outpaced' its success

By Satorupa Karmakar*  On November 01, 2021, India took a pledge of reaching a carbon-zero stage by 2070, at the COP-26 held in Glasgow, UK. As ‘ambitious’ and dubious it may sound to some, with a short-term delay in renewable energy generation (which gained the pace post-September 2020) and drastic fall in greenhouse gas (GHG) emission level as COVID-19 emerged as a ‘necessary evil’ , the path of India’s clean energy mission could be seen being paved throughout this time. Currently ranked as the third largest GHG emitter in the world, India is projected to demand more energy in coming years due to a large population base (1.3 billion as per 2011 Census data) and primarily coal-based fast-growing economy. Rapid industrialisation in post-colonial developing countries like India, stimulated by a larger and cheaper pool of fossil fuels and labour-force depicted a continuous upsurge in temperature, heavy precipitation in some places with an overall declining rainfall and a burgeoning soc

BJP-RSS trap opposition in 'futile row' around Savarkar, freedom movement

By Prem Singh*  Everything in this article is just a repetition. I have been saying all this since 1991-92. It is obvious that the Congress and the RSS/BJP do not like my ideas. But most socialists, advocates of social justice and communists also dislike my thoughts. I watch their measures and efforts to deal with the present crisis with interest. I respect them and also participate. Yet, the fact it, we fall behind again and again, and the crisis goes ahead. Instead of being a solution-providers, we are seen to be a part of the crisis. How long will this last? Perhaps, if the new generation thinks differently, things may turn for better! 1 To say that modern Indian society and politics are passing through the deepest crisis ever will surely be a repetition. The crisis is deeper than the spreading of communal hatred we witness around us. In fact, the business of communal hatred is flourishing by taking its manure and water from the deep crisis. The crisis of neo-colonial slavery is pro

Demand to withdraw 'anti-environment, anti-adivasi' forest conservation rules 2022

By Gopinath Majhi*  The Campaign for Survival and Dignity (CSD), Odisha, a coalition of adivasis and forest dwellers’ organisations, has sent a memorandum to the Ministry of Environment, Forest and Climate Change (MoEFCC) raising serious concerns over Forest (Conservation) Rules, 2022, notified by the Centre on June 29.  Contending that recent amendments and a host of executive orders/guidelines issued by the ministry undermine and dilute the FRA and threaten the rights of adivasis and forest dwellers, CSD demands that the 2022 FC Rules should be rescinded forthwith. Demanding withdrawal of such anti-people and anti-environment rules CSD Odisha organised a protest Dharana in front of State Assembly today on 25th November 2022 and submitted memorandums to the Hon’ble Governor of Odisha, Chief Secretary and Commissioner-cum-Secretary, ST & SC Development Department for conveying our concerns against the FC Rules 2022 to the Central Government for its withdrawal. The memorandums w

'Unprecedented rise' of attacks on students of Delhi university by ABVP condemned

Counterview Desk  A statement, sent as an email alert by "concerned teachers and students of Delhi University", referring to a protest organised against the Akhil Bharatiya Vidyarthi Parishad's (ABVP's), has alleged “brutal” attack on students and teachers demanding the release of civil rights leader Prof GN Saibaba and others from “unjust incarceration.” “We are seeing an unprecedented rise of attacks on the students of our university by the fascist ABVP goons. Almost every week we see our fellow students and activists getting attacked physically by the lackeys of this current Brahmanical Hindutva fascist regime”, the statement claimed. Text : A joint protest was organised by the students and teachers of Delhi University on 2nd of December against the brutal attack by ABVP goons. On 1st of December, activists of Bhagat Singh Chatra Ekta Manch (bsCEM), Lawyers Against Atrocities (LAA) and many other organisations as a part of Campaign Against State Repression (CASR),

Never-ending saga of sin tax: What if murder is taxed at Rs 1 crore, rape at Rs 5 crore?

By Moses Raj GS, Sangeetha Thomas*  What should have ended by June 30, 2022 as a 5 year experiment has resurfaced. The government has extended the levy of GST compensation cess by another 4 years till March 31, 2026. This cess, dubbed as the sin tax imposed on sin(ful) goods, is double the highest slab on indirect taxes. But only a few pay for it and the majority benefit, unendingly. The year 2017 is a landmark year for indirect taxes. With the grand idea of ‘One Nation, One Tax’ as a fiscal slogan subsuming all State based taxes such as octroi /entry tax, Value Added Tax (VAT), sales tax, taxes on lottery, betting and gambling, luxury tax, purchase tax, entertainment tax, property tax, professional tax and central sales tax into a single framework of Goods and Services Tax (GST) changed the contours of revenue collection. Complicating it further, India, with each State having its own size and revenue problems, has the most complex and highly centralised indirect tax structure in the w

Muslims, Dalits off Bangladesh border 'don't have acess to' water, power, farmland

Counterview Desk  Kirity Roy, secretary, civil rights group Banglar Manabadhikar Suraksha Mancha (MASUM), in a letter to the chairman, National Human Rights Commission, has revealed how, even after 75 years of Independence, Muslims and Dalits living next to the India-Bangladesh border do not have access to electricity, drinking water, even to their own land. Stating that the “horrible situation” has due to “illegal restriction on the agricultural activities” imposed by the Border Security Force (BSF), plunging “farmers and their families into deeper poverty”, the letter, referring to the plight of 1,200 people reside in the Changmari village, states, There are about 200 acres of cultivable lands out of 3,500 acres is situated beyond the border fence. “The ingress and egress of the farmers to their own agricultural land through the fencing gates are regulated by the BSF. The soil and climate of this region is very suitable for jute and maize cultivation”, it adds. Text: This letter is

Climate change 'can't be fought' with fancy issues: re-engineering cities, green energy

By Shankar Sharma*  "The Hindu" has carried a discussion paper in the form of an interview, Can poor countries afford to go green? Many such articles/ opinion pieces are making the grievous mistake of ignoring a fundamental question: what is the true cost of climate change (CC), and can poor countries, or for that matter any community, afford not to do all that is feasible to address the threats of  CC; instead of wasting our time and resources in endlessly deliberating on the so called "financial/economic costs" of the much needed transition. Such articles seem to focus only on high profile / glamorous/ debatable stuff, and ignore the basic issues which we all can do something or the other to minimise the impacts of CC in the short-term, and which may probably lead to long term solution. The opinion pieces/ discussion, as above, are guilty of conveniently ignoring the basic question: what is the fundamental cause of CC? The answer should be: the unsustainable dema

Nullifying environmental release, uproot GM mustard plants: 111 doctors urge Modi

Counterview Desk  In a letter to Prime Minister Narendra Modi, as many as 111 medical professionals , most of them senior doctors, has expressed concern with regard to human health implications of the genetically modified (GM) herbicide tolerant (HT) mustard that got approved by Government of India, with indications that it has already been planted in at least six locations. Floated by Dr Rupal M Dalal, a Mumbai-based pediatrician, the letter, even as “welcoming” Modi’s “unprecedented push” towards non-chemical farming in the country for the benefit of environment, nature, consumers and farmers, it said, “HT GM mustard will push the country in the opposite direction.” “A herbicide tolerant crop will put an end to diversity-based cropping, which is important not just for soil health but human health and expose consumers and farmers to a toxic herbicide with serious long term health implications”, it added. The letter seeks the Prime Minister’s urgent intervention to not only withdraw th