by
K. Veeramani (President of the Dravidar Kazhagam.)
at
http://www.hindu.com/2006/05/03/stories/2006050308681100.htm
UNION HUMAN Resource Development Minister Arjun Singh's circular to the Cabinet Secretariat regarding reservation in Central educational institutions has not brought anything new to the domain of public knowledge. It is a follow-up measure to the 93rd Constitutional Amendment that has added clause 5 to Article 15. Accordingly, the state can make any special provision by law for the advancement of any socially and educationally backward class or for the Scheduled Castes and Scheduled Tribes "insofar as such special provisions relate to their admission to educational institutions including private institutions whether aided or unaided — other than minority institutions." Article 15(5) of the Constitution came into force on January 20 this year when it received Presidential assent.
In its communication to the Cabinet Secretary on April 8, the Election Commission said Mr. Singh's announcement prima facie amounted to a breach of the model code as it gave new concessions to certain sections of the electorate in Assam, Tamil Nadu, Kerala, West Bengal, and the Union Territory of Pondicherry. In his reply, Mr. Singh told the Commission that he had refrained from making a comment to the media on the reservation issue precisely on the ground that the election process was under way in some States. After a National Council of Education Research and Training (NCERT) function on April 5, he made a reference to the Constitution Amendment and said that necessary follow-up action was under way and a decision would follow after the Assembly elections.
The Centre's move to provide reservation for the Other Backward Classes in Central institutions, including the Indian Institutes of Technology and the Indian Institutes of Management, is a belated but commendable one. Among the various measures recommended by the All India Second Backward Classes Commission headed by Bindeshwari Prasad Mandal, the V.P. Singh Government sought to implement only 27 per cent reservation in jobs in 1990. It did not attempt to carry out other recommendations, including reservation for OBCs in Central educational institutions.
Reservation in jobs under Article 16(4) will be meaningful and effective only when opportunities to get educated are given to the socially disadvantaged people. It is in view of this fact that the First Constitutional Amendment was made in 1951, after Periyar E.V. Ramasamy launched an agitation against the higher judiciary's ruling that the then composite Madras Government's Order on Communal Representation was unconstitutional. This Amendment has safeguarded the job and education reservation in the State.
Just demands
This should have prompted the Union Government also to meet the demands of social justice to uplift the underprivileged sections of people. It is regrettable that the labours of the First All India Backward Classes Commission (1953-55) under the chairmanship of Kaka Kalelkar, proved to be a futile exercise. Even nearly 60 years after India attained Independence, the Central Government is reluctant to take effective measures to promote the legitimate demands of the OBCs. The demand for reservation for the historically disadvantaged is constitutional, not unconstitutional or extra-constitutional.
When they promote social justice in countries such as the United States under the name of affirmative action or positive discrimination, the upper caste authorities in India put obstacles to similar measures.
Lessons from history
The oft-repeated argument that merit and efficiency will suffer under the quota system does not stand the scrutiny of past history and current experience. In Tamil Nadu, the practice of providing communal representation has been in existence for quite a long time, from the 1920s when it was a part of the composite Madras Province. And yet Tamil Nadu is among the best-administered States in the country and its academic standards remain very high. Due to reservation enjoyed for a long period, the socially and educationally backward classes have so improved their cultural and intellectual atmosphere that they score high marks in public examinations and common entrance tests. What is demanded is not dispensing with competitiveness with regard to less privileged classes, but avoiding competition among unequals.
Let there be competition among equals. It is neither just nor fair to ask the sons and daughters of those who have been traditionally doing only manual jobs to compete with those who have a centuries-old background of academic and literary skills.
Central Government educational institutions have already adopted the quota system in the form of reserving a certain percentage of seats for the Scheduled Castes, the Scheduled Tribes, managements quotas, NRIs, the physically handicapped, etc. Again, in this background, allotting 27 per cent of seats to the OBCs, who are socially handicapped and who constitute about 54 per cent of our country's population, should be treated as one among the foremost duties of our Government.
When the disadvantaged communities are sure of getting a certain number of seats, the boys and girls among them gain confidence and begin to cultivate the competitive spirit. They get the opportunity of sharing the experience of excellence and grow up optimistic.
People of a country become strong and progressive when they have social cohesiveness, which depends on providing equal opportunities for different communities and classes. This becomes possible only when the systems and institutions are made inclusive of various sections and not kept exclusive preserves of the privileged.
What is guaranteed by the Constitution should have been implemented from 1951. But reservation in Central educational institutions was not provided even in 1992 when the Union Government provided for job reservation after the Supreme Court judgment in the Mandal Commission Cases (Indra Sawhney versus Union of India). Now the United Progressive Alliance Government has come forward to translate the constitutional promise into a reality. Though belated, it is a welcome proposal.
Saturday, May 6, 2006
Monday, May 1, 2006
Some thoughts, some reservations
by Fali S. Nariman at http://www.indianexpress.com/story/3497.html
A case of great constitutional significance is being argued before a bench of five justices of the Supreme Court, presided over by the chief justice of India. A few years ago both houses of Parliament added sub-clauses (4A) and (4B) to Article 16 of our Constitution by a rare unanimous vote, but with hardly any discussion. The question presently engaging the court’s attention is: do these sub-clauses violate the “basic structure” of the Constitution?
I had always thought they did. But after reading a perceptive newspaper article by a sociology professor of JNU recently, I have some doubt. The professor goes for the jugular: “Dalits can ask Brahmins that if they were so meritorious, why is half of our country’s population still illiterate?” If meritorious economists and administrators manage the affairs of our country without any reservation how and why are we still so economically backward?”
In the realm of super-speciality education where (at present) there are no ‘reservations’, only three Indian institutes of higher learning figure in the top 500 of world universities — Indian Institute of Science (at No 260), and the Indian Institutes of Technology at Kharagpur and Delhi (at No 459 and 460, respectively). The IITs in Madras, Kanpur, Mumbai and Roorkee don’t figure at all, despite the fact that there are no reservations for OBCs in these centres of learning. And, the professor goes on to say, why do we have hundreds of thousands of cases pending at all levels despite our ‘meritorious’ judiciary? The professor is quite indignant and he won’t wait for answers, but what he says must be put in the ultimate reckoning — without rant or recrimination.
I believe that the truth is that we have not yet resolved the complexities that lie buried in the doctrine of equality. How long are we to atone for the oppression of the centuries? For how long should the claim based on merit and on the fundamental right of equality be ignored? How long should we go on equalising downwards? There are no easy answers. Much of the backwardness in the so-called backward classes continues because small sections of its more progressive members corner all the privileges for themselves. Our judges have characterised these sections as the “creamy layer”. But neither bureaucrats nor politicians are willing or able to remove the creamy layer.
The problem of inequality in India continues to haunt us — more now than before. There is an increasing resistance to the view that the sins of generations of our forefathers in the higher castes have to be expiated here and now — in a couple of generations. And yet the stark fact of continuous under-representation of the underprivileged in the higher echelons of public employment cannot be just wished away. Many years ago, UN Under Secretary-General Ralph Bunche explained why: “Because inalienable rights cannot be enjoyed posthumously.”
Of course, the final word in all constitutional matters is with the judges. But the courts have not been very helpful. They have interpreted the compensatory discrimination clauses (Articles 15 and 16) differently at different times. True, they have prodded and energised governments to live up to the constitutional commitment to alleviate the lot of the downtrodden, but the ground rules have kept fluctuating depending upon the background of individual justices. Not surprisingly. After all, courts are a mirror of the larger society in which we all live, and judges reflect — in their deliberations and pronouncements — the ambiguity and vacillation that shrouds the elusive concept of equality.
But one thing is certain: as long as poverty continues to stalk the land and gross disparities between the rich and poor remain a fact of life, the ideal of an egalitarian society envisaged by the founding fathers in our basic document of governance will remain a bad dream. Whatever the nation’s karma, the founding fathers cannot be faulted for a lack of idealism, nor can providence. It is not in our stars but in ourselves that we are thus. It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed to be achievable goals in 1950.
A former Union law minister told me some years ago about a “casteless” Parsi judge (we Parsis do have prejudices, but they are not caste-based!). He was Justice Jal Vimadalal who was compulsorily transferred during the Emergency of June 1975, as a judge of the high court of Andhra Pradesh (from Bombay); the entire bar took to him instantly, simply because he ignored the caste to which the lawyers appearing before him belonged: “When he left,” Shiv Shankar told me, “the entire bar wept.”
If the under-privileged have been oppressed for centuries, its backlash in the psychological make-up of the ‘privileged’ cannot be underestimated. I recall what the late Justice D P Madon used to say when he became chief justice of Bombay. He had sent for and looked into the records on the administrative side of the Bombay High Court about promotions of judges from the district courts and to his horror he found that judges in the subordinate judiciary of equal and at times greater merit were not promoted to the high courts simply because they did not belong to the ‘privileged’ classes!
No one could possibly fault the senior judges of the Bombay High Court — they were fine intellectuals many of whom moved on to the highest court on merit. Their predilections were unconscious, unintentional. The truth is — and this is the bottom line in the entire ‘reservation controversy’ — that although we have abolished untouchability and outlawed backwardness in our Constitution, many of us — even the most distinguished of us, alas — have not eliminated it from our hearts.
Meanwhile the debate in the Great Constitutional Case continues. I would respectfully suggest to the distinguished MPs who did not have the inclination to discuss these important questions on the floor of the two houses, when the equality clauses were being amended, to visit the court and witness the intensity and solemn sobriety with which arguments are being advanced on each side, with searching questions being put by the justices. Sometimes even Parliament can learn from the Supreme Court.
In the end, the vexed problem about ‘reservations’ will only get resolved with more meaningful opportunities for better education of all sections of our society, particularly the under-privileged.
The writer is an eminent jurist fnariman@hathway.com
A case of great constitutional significance is being argued before a bench of five justices of the Supreme Court, presided over by the chief justice of India. A few years ago both houses of Parliament added sub-clauses (4A) and (4B) to Article 16 of our Constitution by a rare unanimous vote, but with hardly any discussion. The question presently engaging the court’s attention is: do these sub-clauses violate the “basic structure” of the Constitution?
I had always thought they did. But after reading a perceptive newspaper article by a sociology professor of JNU recently, I have some doubt. The professor goes for the jugular: “Dalits can ask Brahmins that if they were so meritorious, why is half of our country’s population still illiterate?” If meritorious economists and administrators manage the affairs of our country without any reservation how and why are we still so economically backward?”
In the realm of super-speciality education where (at present) there are no ‘reservations’, only three Indian institutes of higher learning figure in the top 500 of world universities — Indian Institute of Science (at No 260), and the Indian Institutes of Technology at Kharagpur and Delhi (at No 459 and 460, respectively). The IITs in Madras, Kanpur, Mumbai and Roorkee don’t figure at all, despite the fact that there are no reservations for OBCs in these centres of learning. And, the professor goes on to say, why do we have hundreds of thousands of cases pending at all levels despite our ‘meritorious’ judiciary? The professor is quite indignant and he won’t wait for answers, but what he says must be put in the ultimate reckoning — without rant or recrimination.
I believe that the truth is that we have not yet resolved the complexities that lie buried in the doctrine of equality. How long are we to atone for the oppression of the centuries? For how long should the claim based on merit and on the fundamental right of equality be ignored? How long should we go on equalising downwards? There are no easy answers. Much of the backwardness in the so-called backward classes continues because small sections of its more progressive members corner all the privileges for themselves. Our judges have characterised these sections as the “creamy layer”. But neither bureaucrats nor politicians are willing or able to remove the creamy layer.
The problem of inequality in India continues to haunt us — more now than before. There is an increasing resistance to the view that the sins of generations of our forefathers in the higher castes have to be expiated here and now — in a couple of generations. And yet the stark fact of continuous under-representation of the underprivileged in the higher echelons of public employment cannot be just wished away. Many years ago, UN Under Secretary-General Ralph Bunche explained why: “Because inalienable rights cannot be enjoyed posthumously.”
Of course, the final word in all constitutional matters is with the judges. But the courts have not been very helpful. They have interpreted the compensatory discrimination clauses (Articles 15 and 16) differently at different times. True, they have prodded and energised governments to live up to the constitutional commitment to alleviate the lot of the downtrodden, but the ground rules have kept fluctuating depending upon the background of individual justices. Not surprisingly. After all, courts are a mirror of the larger society in which we all live, and judges reflect — in their deliberations and pronouncements — the ambiguity and vacillation that shrouds the elusive concept of equality.
But one thing is certain: as long as poverty continues to stalk the land and gross disparities between the rich and poor remain a fact of life, the ideal of an egalitarian society envisaged by the founding fathers in our basic document of governance will remain a bad dream. Whatever the nation’s karma, the founding fathers cannot be faulted for a lack of idealism, nor can providence. It is not in our stars but in ourselves that we are thus. It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed to be achievable goals in 1950.
A former Union law minister told me some years ago about a “casteless” Parsi judge (we Parsis do have prejudices, but they are not caste-based!). He was Justice Jal Vimadalal who was compulsorily transferred during the Emergency of June 1975, as a judge of the high court of Andhra Pradesh (from Bombay); the entire bar took to him instantly, simply because he ignored the caste to which the lawyers appearing before him belonged: “When he left,” Shiv Shankar told me, “the entire bar wept.”
If the under-privileged have been oppressed for centuries, its backlash in the psychological make-up of the ‘privileged’ cannot be underestimated. I recall what the late Justice D P Madon used to say when he became chief justice of Bombay. He had sent for and looked into the records on the administrative side of the Bombay High Court about promotions of judges from the district courts and to his horror he found that judges in the subordinate judiciary of equal and at times greater merit were not promoted to the high courts simply because they did not belong to the ‘privileged’ classes!
No one could possibly fault the senior judges of the Bombay High Court — they were fine intellectuals many of whom moved on to the highest court on merit. Their predilections were unconscious, unintentional. The truth is — and this is the bottom line in the entire ‘reservation controversy’ — that although we have abolished untouchability and outlawed backwardness in our Constitution, many of us — even the most distinguished of us, alas — have not eliminated it from our hearts.
Meanwhile the debate in the Great Constitutional Case continues. I would respectfully suggest to the distinguished MPs who did not have the inclination to discuss these important questions on the floor of the two houses, when the equality clauses were being amended, to visit the court and witness the intensity and solemn sobriety with which arguments are being advanced on each side, with searching questions being put by the justices. Sometimes even Parliament can learn from the Supreme Court.
In the end, the vexed problem about ‘reservations’ will only get resolved with more meaningful opportunities for better education of all sections of our society, particularly the under-privileged.
The writer is an eminent jurist fnariman@hathway.com
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