Union of India v. Ramesh Ram: Notes on oral arguments before the SC Constitution Bench

[Readers are requested to first read the previous posts on the subject, to familiarise themselves with the issues]

Solicitor-General: Both the Tribunal and the Madras High Court have erroneously assumed that the relaxed category is the reserved category. The Civil Service Rule 16[2] is compliant with Article 335. The Rule enables use of transparent criteria in reservations which will not impair efficiency in services. There are two sets of people in reserved category: those with higher marks and those who need relaxation of marks to get into services. If under Article 335, (read Proviso to Art.335) relaxation is implicit, UOI assumes that if you are under relaxed category, then you are not inconsistent with efficiency. People under relaxed category can also perform without affecting efficiency.

In Nagaraj, the Supreme Court has held that efficiency in Art.335 is a guided expression. In Indra Sawhney, the Court held that the nature of relaxation does not determine the purpose of Art.16(4). Madras High Court and Tribunal have held that the moment you are in general list, you are out of the reserved list. According to Nagaraj,(Paragraphs 104 and 106 cited) efficiency is a variable factor and it is for the State to determine it. The High Court did not analyse it with reference to Nagaraj or Article 335. Article 16(4) has many dimensions including Article 335. Rule 16(2) is not violative of Article 16(4) at all.

The matter remained part-heard, and the names of the counsel who have so far argued are available here.

Additional Materials: The Hindu story on August 20.

Union of India v. Ramesh Ram: Brief notes on oral arguments in Supreme Court (August 18)

The case is about the constitutionality of permitting reserved category candidates selected under general (merit) list by virtue of their good performance to migrate to reserved category for the purpose of allocation of services. Those who are aggrieved by this rule include the reserved category candidates selected under the quota, who stand to lose the best service allocation because of the migration, and the general category candidates who lose out because the reserved category candidates were not adjusted in the reserved category at the time of ranking, because of their good performance in the examination.

The following are some extracts from oral arguments advanced by the Solicitor General, Gopal Subramanian:

This is a fight between reserved candidates with higher marks and the reserved candidates with lower marks. The UPSC Rule 16 (2) which favours migration of reserved category candidates from the merit list to the quota for the purpose of service allocation, also favours the meritorious within the general category. Migration is a right available to a reserved category candidate, who may choose to avail it.

Justice Raveendran: If migration is not allowed, reserved category candidates may choose to perform poorly in the competitive examination, so that they do not get selected under the general merit list.

GS: Migration aims to bestow the benefits of reservation, based on higher marks; therefore, it is commendable. It seeks to achieve a nexus between the candidates' performance and what is being offered to them. It is an incentive to the reserved category candidates to work hard and achieve quality. It assures the reserved category candidates that if they perform well, they won't lose the benefits of reservation at the time of service allocation.

Justice Kapadia: Why can't you give more marks within the general category to those reserved category candidates so that they need not migrate.

GS: We are dealing with substantive equality. We seek to achieve the object of reservation by rewarding those who succeeded in making it to the general list through sheer merit.

TODAY IN SUPREME COURT

Supreme Court's five-Judge Constitution Bench comprising the CJI, Justices S.H.Kapadia, Raveendran, Sathasivam and Sudarshan Reddy will begin hearing from today a series of eight cases, beginning with SLP [C] 13571 - Union of India v. Ramesh Ram. This case has been discussed on our blog earlier.

Impact of OBC Reservation Policy in Higher Education in India: The TISS Report and Its Implications

The Tata Institute of Social Sciences (TISS) recently came out with a report on the ‘Impact of Reservation Policy in Higher Education in India’. Amidst the din of the general election and the war in Sri Lanka, it appears to have received scant attention in the press.

The report is a veritable treasure of facts and figures with respect to economic and educational backwardness. The initial part of the report documents the economic status of different social groups based on a number of social parameters. It concludes:

Poverty and deprivation is higher among STs, SCs and OBCs among Hindus and Muslims. Hindu STs are the poorest… while Hindu OBCs are close to national average and lie between Hindu SC, Muslims SC, ST & OBCs, Muslim Others on one hand and Christian SC/ STs, Hindu Others, Christian OBCs, Sikhs, Jains and Zoroastrians on other. In terms of economic deprivation, higher percentage of Hindu SCs & Muslims (Muslim SC, ST, OBCs & Others) fall under ‘very poor’ category as compared to Hindu OBCs…Higher the level of deprivation/poverty in a particular category, lower the number of graduates from that category. So the percentage of graduates and above belonging to poor, very poor and middle economic strata within SC, ST & OBCs are less as compared to those in top two categories (upper middle and rich) within their own community. A high number of poor amongst the most deprived socio-religious groups (Hindu & Muslim SC, ST & OBC) attain graduation and above.

As far as middle and secondary education is concerned, it concludes that ‘Hindu OBCs are adequately represented as compared to their share of population at middle and secondary school levels but their attainment drops at higher secondary level’. SC/ST enrollment as noted from the census appears to have marginally improved over the years.

Strong urban-rural (rural enrollment lower than urban; more so for lower castes than upper) and gender (lower female attainment for SC/ST/OBC/Muslim; higher disparity with diminishing household income) gaps are also noted. As for OBC representation and enrollment in higher education, it concludes that their numbers remain low as compared to Hindu Others, Jains, Christians and Zoroastrians.

The last point regarding OBCs, even if true overall, has important exceptions as their data in the next section indicates (this part is really the core of the study). The team conducted a caste-wise breakdown of university admission and performance in select universities across three states - Maharashtra, Tamil Nadu and Uttar Pradesh. A survey of students, faculties and administrators was also conducted where diverse opinions were voiced.

The data sets are not always complete but they still provide some sense of the social implications of reservation policy. In Maharashtra, while OBC enrollment in Mumbai University was found to be low, it was adequate at Marathwada university and at the Maharashtra University of Health Sciences. While CET and higher secondary (HSC) exam performances were better in the general category in engineering, OBC students performed better than the general category in medical CET and HSC marks. In terms of university level performance, general category students performed better than those in the reserve category both in terms of pass percentage and the number of first and second classes.

In Tamil Nadu, backward class (BC as distinguished from Most Backward Class, MBC) students outperformed the open category (OC) students in qualifying for medical admission and very nearly matched the open category for engineering admission. The report notes that even while engineering education in the state is highly privatized (96.7% of all engineering colleges are self-financing), BCs and MBCs were adequately represented whereas SC/ST numbers are low. Also 27% reserved category candidates who are selected for MBBS in Tamil Nadu take admission without any reservation. The majority of these (25%) are from BC and MBC categories. It also states that at the exit level of professional courses, no marked difference exists between the performance of reserved category students vis-à-vis the general category is noted and hence quotas have not diluted merit in engineering institutions. The last finding is erroneous as the conclusion can only be asserted with confidence with respect to BCs and MBCs, not SC/STs (see table 7.9 and explanation on p.53).

In Uttar Pradesh, OBC applicants to professional courses were fewer than their proportion in the overall population and filled fewer slots in medical colleges than the allotted quota but exceeded the stipulated 27% in engineering colleges. Performance-wise (as determined by pass percentages), there is something of a surprise: OBCs fared the worst, SC/STs the best with general category students in between. No explanation is however offered to account for these seemingly anomalous findings (fake SC/ST certificates?). Reserved seats were not filled in post-graduate engineering courses and an inverse correlation was found between demand for a course and the number of SC/ST/OBCs enrolled in it.

The team also studied enrollment rates to some centrally funded institutions, namely the IITs, AIIMS and TISS. They note that the percentage of SC/STs preparing for the IIT-JEE through self-study is much higher than for other groups and the sharp urban/rural and CBSE/state board divides probably affect the success rate based on the adverse impact they have on these sections. They speculate that disparities in parents’ educational status as well as household income are other important factors affecting the performance of SC/STs. A similarly high rate of failure of SC/STs in the AIIMS entrance exam is also noted. As for enrollment at TISS, it is stated that SC/STs have surpassed their respective quota shares and while the numbers are only rough estimates, a significant number of OBCs (~10%) are believed to be getting in through merit although their percentage is still less in proportion to their eligible population.

The report offers considerable food for thought.
1. Backwardness is better understood as a relative term with communities being hierarchically graded along a continuum without a clear backward/forward distinction. This could be an argument in favor of developing what was proposed earlier - an individualized deprivation index scoring system taking into account a diverse set of factors including location (urban/rural, proximity to educational institutions and coaching facilities, etc.), parental accomplishments, etc. and applied to all applicants rather than a pre-specified caste-based quota.

2. The continuing reservation policy in Tamil Nadu, at it applies to BCs and MBCs, does not appear justified in light of these findings. There is also a reasonable case to take a hard look at the distribution of OBCs in Maharashtra.

3. A recurring theme of the report is that candidate numbers in various courses are not proportionate to their population. Firstly, this point ought to be seen only in association with the number of applicants since a lower number of applicants would be a likely explanation for the fewer number of successful candidates. Secondly, the smaller applicant pool would only imply backwardness provided preferences of the community are excluded as a possibility. While a graduate degree may well be an entry barrier to the employment market, the same is not always the case for post-graduate education in which case, it may simply be an artifact of varied preferences.

4. An aspect of the debate related to the above point has been whether the goal of the reservation policy ought to be to promote classroom diversity or social advancement. The difference has not been all that material since for the bulk of the populace, the two have been closely related – any policy for upliftment will also invariably be accompanied by an increase in diversity. But as this report indicates, that may not always be the case. In courses related to agriculture, enrollment of students from the general category is very low which raises the question: should institutions actively promote themselves to sections that are not backward in the interest of diversity? To give another example, if members of a traditional merchant community were to prefer entrepreneurship to signing up for a doctoral degree program after graduation, should it be obligatory or even desirable for institutions offering such programs to resort to affirmative action to reverse the imbalance?

5. In a majority of educational courses, it seems clear that backward class performance is lower than that of the general category. To the extent that this is an indicator of scholarship/merit and a determinant of the educational environment, quotas do appear to lead to a dilution of the standard (this is a point that follows clearly from the data but a conclusion the report does not explicitly state anywhere as far as I can tell). The question then is whether this is a problem and if so, how it ought to be remedied. The authors favor a multi-pronged approach with increased assistance provided right from the HSC level to reverse this ‘inverted funnel effect’ and similar support both before admission to the university and after.

6. Given that reservation policies have had very different impacts in different parts of the country, what are the factors that contribute to this extensive disparity and how might they be remedied? The report generally recommends improved access to education but unfortunately does not specifically dwell on this question.

Two important judgments

Supreme Court yesterday delivered two important judgments. In Union of India vs. Ramesh Ram, the Bench referred the matter to the Constitution Bench. In this case, the question was whether the candidates of the reserved category could opt to be selected under the general category on the basis of their merit, but also opt to be allotted a service under the reserved quota. In other words, whether the candidates belonging to these reserved categories, can have the cake and eat it too. There were certain questions to be considered whether such a course would affect the chances of general candidates not entitled to any reservation, and whether those selected under the reserved quota would lose the right to be considered for the services of their choice. The question whether the reservation benefit can be extended beyond 50 per cent ceiling also came to be considered. This case has earlier been discussed in these posts.

In the second judgment, the Supreme Court appears to have waited till the conclusion of elections in Punjab, lest its judgment used as a campaign issue. Former Chief Minister, Capt. Amarinder Singh has lost his plea that the corruption case against the Chief Minister Prakash Singh Badal be tried outside the State. The Court has held that there is no reasonable apprehension that justice will not be done in this case in the State of Punjab.

Denial of reservations in entrance examination

The Supreme court has justified in this judgment the denial of reservations by the Andhra Pradesh Public Service Commission in the entrance examination to fill up state civil service posts. Mail Today in this editorial (A fair and just view)defends the judgment saying it will have far-reaching consequences because most public service commissions in States reduce the cut-off marks for reserved category applicants in the entrance or preliminary examinations, so as to ultimately find sufficient candidates to fill the vacant posts under the reserved quota.

There are a few unusual features in this case. While it is generally the Governments which are in favour of reservations, in this case, the Government has justified the need to deny quota to the reserved categories in the preliminary examination, in order to maintain efficiency under Article 335. Another interesting aspect is that P.P.Rao, who had argued against reservations in the Ashoka Kumar Thakur case, chose to defend the respondents, who were aggrieved by the APPSC's decision to deny quota, and further relaxation of cut-off marks for reserved category candidates at the preliminary examinations.

P.P.Rao argued that judging of the merit of the candidates having regard to the provisions of Article 335 of the Constitution of India per se should not allow the State and the Commission to stop all the candidates at the first gate and then prevent them from appearing at the main examination as thereby constitutional scheme to provide reservation would be frustrated to a great extent. He also suggested that the means to achieve the constitutional object and the goals should not be defeated by inserting procedural provisions as a result whereof what is being given by one hand should not be permitted to be taken away by the other.

The Court, however, rejected this argument, and held: "Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued."

It is surprising that in this election season, the political class seems to have completely missed the import of this significant judgment from the Supreme Court

Rethinking Social Justice Remedies

This is a certainly thought-provoking, although not completely novel, presentation by Yogendra Yadav in Mysore. It is a reprise of a talk he gave previously on the same subject, and was covered on this blog. Yadav's central theme is spot on -- there has been great intellectual paralysis in discussing social justice remedies in India. It is stunning that, although almost two decades have passed since the Indian economy opened-up, social justice and affirmative action has been exclusively focussed on reservations in government jobs ignoring the new hierarchies of social exclusion in the private and non-governmental sectors. I'm personally against mandatory quotas for private companies. But we urgently need more imaginative approaches, such as tax and financial incentives, that encourage private entities, both large and small, to voluntarily embrace social inclusion and diversity.

Another instance of the pathology of caste [Guest Blog]

This is a post by Chandan Gowda, Associate Professor at the Centre for the Study of Social Exclusion at NLS, Bangalore. In this post, he explains some of the reasons behind the demands for internal reservations, which goes beyond the standard argument based on the creamy layer exclusion.

The psychological havoc of caste becomes obvious again in the case of the right- and left-hand (Yada-Bala) divisions among the Dalits of Karnataka. (The two sub-sections are numerically evenly poised.) Superficial discussions of caste identity in metropolitan circles presume Dalit to be an undifferentiated all-India category of “untouchable” castes. But, the Madigas (the left-hand Dalits) of Karnataka have long complained of being “primary untouchables.” The Holeyas (the right-hand Dalits) shun the Madigas in the various ways in which the non-Dalits shun them: inter-marriage, inter-dining, and social visitation do not usually happen between them. In addition to such social mal-experience, the activists of the left-hand Dalits have been pointing out that the right hand Dalits corner most of the benefits of the state’s affirmative action programmes. In fact, the efforts of the Madiga Meesalati Horata Samiti, a committee formed to fight for internal reservation for the left-hand Dalits within the existing state-sanctioned quotas in jobs and educational institutions, over the last decade led to the creation of the AJ Sadashiva Commission in 2004 for examining the “the issue of internal reservation to the left and right wings among the Scheduled Castes” (for more details about this commission, visit this site.)

The Dalit leadership, drawn mostly from the right-hand sections, was probably wise in not allowing the internal differences to break asunder their movement. But it might be a bit late now for them to sort out their internal inequalities and emerge united. It appears that the left-hand Dalits, who have been mobilizing themselves over the last decade, do not wish to close ranks with the right-hand Dalits. Clearly, these divisions are open to cynical manipulation by political parties. In fact, the BJP played with these divisions in the previous assembly election. The right-hand Dalits, who hold Ambedkar as their hero, seem less willing to align with the BJP while the left-hand Dalits, who consider Babu Jagjivan Ram their icon alongside Ambedkar, are not as hesitant about it.

In these times of deadly pursuits of power, money and prestige, a parable narrated by the great Kannada writer-activist, Siddalinagaih might seem merely wistful. Still, its political idealism is compelling.

“A Holeya and a Madiga were bonded (jeeta) workers with a village headman. In the mornings, both would be served the previous night’s leftovers at the cattle shed. Before eating his food, the Holeya blew into it and pretended to cool a hot dish. Seeing this, the Madiga picked up a quarrel with the headman: “Both of us are bonded workers. Why do you serve hot food only to him?” He wouldn’t believe the headman who insisted he served cold leftovers to them both. The Holeya continued to bluff the Madiga that he was being served hot, fresh food.” (My translation).

I am planning to do a short research assignment historicizing the left-right division within Dalits and assess its importance for contemporary politics. Although the terminology of left and right used to distinguish an inferior from a superior caste within Dalits is specific to Karnataka (it is invoked with reference to non-Dalit castes also in Tamilnadu), the inferiorized distinctions within Dalits are present in most parts of India.

Mysteries of law making

There is an interesting article in The Hindu by the CPI National Secretary, and MP, D.Raja (A design to block opportunities)revealing not just how hastily the Scheduled Castes and Scheduled Tribes (Reservation in Posts and Services) Bill, 2008 was passed by the Rajya Sabha in December 2008, but how key changes were introduced in the Bill stealthily. The Bill, everyone avers, was required because till now reservations for SCs, and STs (and for OBCs)have been provided through executive orders. Raja's main objection is against S.4(1) of the Bill which removes 47 government institutions from the purview of quota. (The list can be enlarged by the government).

The Bill has a long trajectory. The Bill had originally included the OBCs in its ambit, and was introduced in the Lok Sabha in 2004. The Parliamentary Standing committee report on the bill was submitted in June 2005. Raja says the Govt. rejected the report and inserted S.4(1) which was not there in the Bill, and which the committee did not recommend. More important, the Govt. did not consult the relevant Ministries. Sure enough, there will be lot of heat in the Lok Sabha and amendments will be suggested to this Bill, which then may have to get the clearance afresh in Rajya Sabha. The summary of the Bill, provided by the PRS Legislative Research,is here.

My interest in this post is on the procedural issue: Just who had managed to insert S.4(1) in the Bill, when it is likely to ignite a huge political controversy? It will remain a mystery, unless one goes into the various stages of the evolution of this Bill and the various hands it passed through till it was passed by the Rajya Sabha.

The original Bill referred to the Standing Committee is here.
The Standing Committee report can also be read here, courtesy PRS. The summary of the 2004 Bill is also available here.

Rationale of reservations in local bodies

The hearing of Dr.K.Krishna Murthy vs. Union of India by the five-Judge Constitution Bench continued for the third day today. Rama Jois and Salman Khursheed argued for the petitioners while ASG, Gopal Subramanium argued for the respondent.
The validity of Article 243D providing for reservation of seats in the Panchayats and in the offices of the Chairpersons in the Panchayats and the corresponding 243T for Municipalities has been challenged in this case. Both these Articles were inserted by the 73rd and 74th Constitution amendments as part of the newly-created Part IX of the Constitution in 1992.

Rama Jois was not against the reservation for SCs and STs, as similar reservation existed for these classes in Parliament and state assemblies. When he tried to tell the Bench that the total quota came to 77 per cent, and therefore invited the Court's bar on more than 50 per cent quota, Justice Raveendran and the CJ sought to question his calculation. It appeared as though Rama Jois did not consider that the different categories might be overlapping. That is, he seemed to consider all horizontal reservations as vertical. Thus, reservations for women is within the SC/ST quota, but he seemed to ignore this. Realising the flaw, Rama Jois told the Bench that he was not pursuing this challenge, but reservation for the OBCs per se is bad.

He argued that Mandal Commission did not recommend reservations in local bodies, and that if the OBCs and women did not require reservation for nearly four decades since independence, there was no basis for these amendments. There was no reservation before the Constitution came into force for these sections; so are we worse now, he asked. He underlined that no Commission had recommended quota for OBCs and women in local bodies.

Jois said a single post cannot be reserved, but several posts can be clubbed together. Reservation for the posts of Chairmen, therefore, violated this principle. He argued that while original provisions like Article 330 and 332 cannot be questioned, amendments can be challenged.

Jois' challenge to reservation for women failed to impress the Bench. He said women have no aptitude for politics, and that 33% of seats were reserved, 33% men would go out of circulation, and this posed a danger. When Justice Jain asked him what his formula was for the Lok Sabha and state assemblies, he said Lok Sabha seats could be increased by 10 per cent (54 seats). If a party gets 200 seats, that party would be entitled to get 20 of these 54 women seats, and the party could nominate women MPs for these extra seats. That way, existing male MPs would not lose their seats, he suggested. In the elections to local bodies, he pointed out that women candidates faced male candidates, and the purpose of reservation was defeated.

Gopal Subramanium traced the history of Panchayat Raj, beginning with the desire for self-government during the freedom struggle. Explaining the rationale of Part IX of the Constitution, he said caste can be a class where backwardness is manifest. "Backwardness is not an amorphous expression; 17 States have made reservations for BCs under Article 243D (6)," he said. He complimented the 73rd and 74th amendments as having brought about a silent revolution in Indian society. It is thanks to these amendments, marginalised people now have a share in development, he said and added it has not been without resistance.

Justice Raveendran reminded him that the petitioners' objection was about vertical reservation, and that Women's reservation was a fringe issue. Thrust of Rama Jois' argument was against reservation for BCs and for the Chairpersons. He also asked if BCs had already a major share of seats/posts in the local bodies, what is the purpose of quota for OBCs. He explained the petitioners' argument thus: the OBC quota was not required, whereas the quota for SC/STs and women were required because these sections were poorly represented in the local bodies.

At this point, Rajeev Dhavan told the Bench that the question of reservation did not arise because the OBCs did not suffer the 3 Ds (Discrimination, disadvantage and disempowerment), and therefore, the Bench must examine whether Article 243D(6) could be severed from Part IX, because this provision gave discretionary power to the State Governments to reserve seats and offices of Chairpersons in the Panchayats for BCs.

Gopal Subramanium said there was no averment that the backward classes did not exist when these amendments were passed. He responded to Jois' comment that it would lead to a clamour for similar quota for OBCs in Lok Sabha and assemblies (Jois said the A.P.Assembly had already passed a resolution seeking OBC quota in assembly), saying we would cross the bridge when it comes.

Justice Raveendran said nobody argued against PR system, and the argument of the petitioner, was that if empirical data was available for SC/ST/women, no such data was available for OBCs. "We don't want to enter areas where there is no contest at all", he said. He reminded the ASG that the Mandal Commission had found that in the political arena, the OBCs did not require reservation.

When ASG repeatedly equated castes with classes, Justice Raveendran asked whether it was his contention that creamy layer must be removed for OBC quota under local bodies too, as only then these castes could be considered as backward classes. To this, the ASG replied that the fact that the BCs exist is itself a justification for reservation. Justice Raveendran asked a pointed question whether before this amendment, the BCs were prevented from contesting in Panchayat elections. He said similar justification was available for women, SCs and STs because they were dissuaded from contesting.

The ASG replied that the right to contest/vote is a creation of the statute, and could be tailored, based on qualifications.

Justice Raveendran said: Where Reservation is needed and provided, it leads to equality; where reservation is not needed, but provided, it becomes a divisive force. To this, the ASG replied that affirmative action in education and employment is not exhaustive of equality. When ASG criticised Jois for saying that the State cannot do more than affirmative action in education and employment, Justice Raveendran replied that Jois did not say the state cannot, but it was not required.

The ASG replied that BCs need integration with active State's intervention. The goal of Part IX, Article 15(4), 16(4), Article 243D(6) is the same, that is, safeguard the interests of the BCs. Therefore, Part IX is consistent with Article 14; it actually promotes Article 14. As long as people exist, requiring protection under Article 14, it is self-evident basis for classification. As political equality is essential for living condition, and dignity of people, reservation for them is justified. Part IX of the Constitution aims at equality of status, not equality of opportunity. The word status is not defined in the Constitution. A caste, when it is subjected to disabilities of a social class, it becomes a class.
(To be continued on Tuesday, November 11)

Transcending Reservations

In this article published by the EPW, I have tried to map certain developments in the official discourse on equality that transcend the traditional debate on reservations. These developments include proposals for enacting anti-discrimination measures, incentivising diversity in the private sector and encouraging corporate social responsibility. I also make a case for restructuring the social justice regulatory framework by instituting a single Equality Commission and merging all the existing group-based commissions.

Dhavan's response to Venkatesan

Dr. Dhavan has sent the following in response to Venkatesan's critique. I have his permission to post it on the blog:

"Wrong But Delightful: A Response to V. Venkatesan

- By Rajeev Dhavan

1. What a wonderfully provocative review!

2. The main debate is on whether the Parliamentary debates were fulfilling (see Book pp. 34-5). Clearly they were not.

3. It is the OBC bench that was utterly confused about whether the creamy layer applied to SCs and STs (see Book pp. 227-233) where the contradiction is shown.

4. The important aspect of Nagraj and Coelho is the caveat that, 50% reservations, creamy layer and compelling necessity are essential in respect of future actions even validity of the constitutional amendments is upheld (see Book pp. 238).

5. Alas, you have reviewed only the epilogue (see Book pp.199 ff) and my supposed reversal of roles, but not the book.

6. I love your writing – right or wrong!!"

Desai and Kannabiran on the Thakur case

Kalpana Kannabiran, a Professor of Sociology at NALSAR, Hyderabad, has a column in today's Hindu on the Thakur case and its implications, where she refers to differences in the four judgments as well. A few days ago, Meghnad Desai had an column in the Express where he seemed to offer, among other things, support for the stance that Justice Bhandari takes in a large portion of his separate judgment.

I know that some people on the blog who have had a long interest in issues of reservation are still formulating their own stances. While we wait for a full debate on the case here, it would be interesting to see how others in politics, civil society and academia view the judgment. I hope others will join me in tracking the more insightful of such views, which will also serve as a record of the debate over the issue for the future.

Jaising and Palshikar on the Thakur case

This post is part of an effort to track early responses to the Thakur case. I won't have time to comment on these now, but here is Indira Jaising's rediff.com column on the case, and this is a column in today's Express by Suhas Palshikar. Both can broadly be classified as supporters of the decision, though there are differences in the degrees to which they support the decision. In keeping with her status as an activist-lawyer, Jaising's piece is more fulsome in its praise for the judgment, while Palshikar, speaking from the standpoint of a social science academic, is more measured in his assessment of the merits of the judgment.

One problem with both these commentaries - and with some of the initial newsreports - is that they keep referring to the case as if it were a single, clear judgment of the Court (both columnists refer to the decision and the ruling in the singular throughout their respective columns). Yet, as Mr. Venkatesan's previous post shows, there are real problems in understanding what the Court as a whole said on the details of the questions posed beyond the larger issue of the constitutional validity of OBC quotas being upheld. A year or so ago, some of us on the blog debated the virtues of unanimous decisions of Supreme Courts in complicated cases, as a way of making the decisions more clear and coherent. This case seems to point to the problems of interpretation posed when judges can't get their colleagues to sign onto a joint judgment. I can't help wondering why the Chief Justice was not able to persuade those who did not differ substantially from him to avoid writing separate judgments, given the importance of the issue and the clear need for judicial solidarity.

Are Graduates ineligible for Mandal II benefits?

The media is abuzz with reports that Justices Pasayat-Thakker judgments on Mandal II -if read with Justice Bhandari's - would mean that majority Judges have held that graduates cannot be educationally backward, and therefore, cannot qualify as SEBCs/OBCs. As a consequence, these reports suggest, the OBC graduates cannot be the beneficiaries of the law meant for OBCs which has been upheld by the Supreme Court's Constitution Bench.

The confusion, I understand, has now been cleared. Justice Pasayat, I believe, has referred to the issue only in the context of identification/determination of OBCs. This clarification assumes significance in the context of some misinterpretations in sections of the media about the import of the Judgment.

If majority Judges indeed wanted to disqualify the OBC graduates from the Mandal II benefits, then they would have struck down the law, as the Central Government's aim in this Act was to confer the quota benefits on OBC students in higher education (though the Act is applicable to all the Central educational institutions, irrespective of whether it is post-graduate institutions or not.) Still, it would have been better if Justics Pasayat and Thakker made themselves clearer in their judgment on this issue than what they have been. It seems Justice Pasayat's purpose in suggesting it was that if a group reveals the presence of a substantial number of graduates, then that group cannot be called SEBC/OBC, and the NCBC ought to exclude it at the time of review. That does not mean, graduates in a recognised OBC group would be excluded (like the creamy layer in that group) from the Act's benefits. Seen in this context, Justice Bhandari appears to have got it wrong.

Update:: Mr.Vivek Reddy asks in the comments section whether the above clarification was in fact my interpretation. The 'clarification' was in fact based on today's The Hindu report (I am unable to provide the link) on 'Quota Judgment seen as fine balancing act'(News analysis on p.12 Delhi edition). The report concludes that Mr.Pasayat favours the identification of the SEBCs with 'graduation' as the basis; nowhere does he talk about excluding graduates. I agree that this is a plausible interpretation. This interpretation is also sustained because during the hearing of the case, none of the petitioners' counsel argued the case for excluding OBC graduates, or restricting the quota benefits to undergraduate courses. Only Mr.P.P.Rao dealt with it in passing, during the replies to the arguments of the respondents. The Judges on the Bench, including Justices Bhandari,Thakker, and Pasayat had serious reservations about his proposal to deny quota benefits to post-graduate OBC students.

Early takes on the Ashoka Kumar Thakur case

As is perhaps to be expected when the Supreme Court issues four judgments in a single case, much of the early analysis of the Thakur case is very general and noncommittal. This may be because a close reading of the judgments and a good understanding of their contents is necessary, and most columnists haven’t yet had the time for that. We will all be watching out for that over the next few days.

While all the leading dailies had news-items about the judgments, and some also carried editorials, I thought that the Express was more categorical than others. The Express editorial on the Thakur case uses the same adjective for the case that is already becoming universal, calling it a “landmark case.” But, after briefly discussing the case, the Editorial moves onto the larger issue of higher education reform:

India is already running thin on meeting the aspirations of its young citizens for quality education. Take, for instance, the All India Institute of Medical Sciences. Each year, it takes just over 40 students for its MBBS programme. Whether half those seats are reserved or a quarter would not alter the fact that four dozen places annually for India’s best medical education is pathetically limited. So it is in different proportions at the IITs, the IIMs, our law schools and our universities.

These are shortages born of apathy, and they make salient the popular perception of a clash between equity and excellence, between meaningful equality of opportunity and merit. Those are false choices. Excellence is unattainable in a society with inequities. A programme of affirmative action would therefore be incomplete without expansion and improvement of our higher education system

While this is not a new point (several others have dwelt on this issue, and Justice Dalveer Bhandari’s judgment in Thakur also touches upon the overall issue of the educational system in India), it is perhaps worth remembering as we head into a debate on the merits of the ruling in the Thakur case. A recent policy paper which drives home this point in frightening detail is available here. Authored by Devesh Kapur and Pratap Mehta, the paper starts with a quote from Prime Minister Manmohan Singh describing the malaise that affects the higher education system, and proceeds to provide details and explain some of the reasons for the status quo. I would strongly recommend this paper to anyone who is interested in knowing some vital details about our current system of higher education in India.

Returning to the Thakur judgment itself, Pratap Mehta may well be among the first to provide a detailed analysis of the judgments, which appeared in his column in today’s Express. The piece will, by setting out what he understands to be the competing considerations weighed by the majority and dissenting judgements, probably help frame further debate and discussion about the judgment, and I suspect we will hear more about his analysis in days to come. Readers of the blog who are interested in this issue will do well to closely read the views of someone who has been an astute analyst of the issues that were central to the Thakur case.

My own immediate reaction to Mehta’s piece was that he may be attributing too much to the judges on either side of the divide he describes. It is not clear to me that the divisions between the majority and dissenters are so clearly marked, either in terms of their findings or their clearly delineated philosophical differences on ways to approach the issue of caste divisions in India. There isn’t a real, genuine dissent in this case, which is to me, the only real surprise in the case. Justice Pasayat’s seeming retreat from the language he employed in the order staying the OBC quota policy is striking (as was the measured tone adopted by Pratap Mehta in analysing the judgment as well, given his own role in the uproar over the granting of the stay on the OBC quotas issue last year). As Mr. Venkatesan suggests in a previous post, the judgments will have to be read closely to find out what the actual holding of the case is, to which a majority of judges agreed as a group. My sense is that there are partial dissents, sometimes on different issues, and understanding the full import of the case may require more deliberation and discussion.

Religious discrimination - II

Two quick updates on my last post on housing discrimination against Muslims and religious discrimination in general.

1. Private Discrimination: Ravi's comment on my last post said that "I am against discrimination on religious grounds but I am not for forcing 'non-discrimination' through such measures." The debate is an old one about whether the state can prohibit private discrimination. It first took place in the early 1960s in the United States in the run up to and after the Civil Rights Act, 1964, which prohibited racial discrimination by private parties (subsequently the US has prohibited discrimination on the grounds of national origin, religion, sex, age and disability by private parties).

I am not entirely sure if Ravi's objection is legal, moral or strategic. Even under the strongly limited-State US constitution, the Civil Rights Act was valid. The Indian constitution, with its emphasis on equality, itself has several clauses prohibiting private caste discrimination. I don't think there is a legal case to show that such prohibition would be unconstitutional.

Ravi's moral objection is this : "How can the state which
discriminates in the name of reservations can claim any moral
authority to force such 'non-discriminatory' practices."
This conflates the affirmative action debate and the private discrimination debate. Whether affirmative action is 'discrimination' in its pejorative sense is itself debatable. Personally, I think affirmative action is justifiable in certain contexts, although do not necessarily agree with all the means undertaken in India to achieve its goals. I am aware that whenever private discrimination takes centre-stage in Indian policy debates, one strain will certainly mirror the affirmative action debate. I can only point out a good defense of prohibiting private sector discrimination - John Gardner, 'On the Ground of Her Sex(uality)' (1998) 18 Oxford Journal of Legal Studies 167. I have a copy of the article and will be happy to send it to you if you want it - just email me at tarunabh at gmail dot com.

Finally, I wonder whether Ravi's objections are only strategic. He says that 'Simple solutions like coercion by state will be counter productive.' That may be a point about enforceability, or perhaps that it might increase religious and other tension rather than decrease it. If it is a question of enforceability, I completely agree that one has to look at imaginative solutions that will work in the Indian context. Perhaps the Western model of litigation-driven enforcement of the prohibition on private discrimination will not give the desired results. But if the point is that it will increase rather than decrease social disharmony, the problem always crops up whenever one tries to challenge injustice - because it shakes up the status-quo, there will be people who will be unhappy. Should one suffer what is wrong or try to deal with it by minimising conflict?

2. Alok Gupta (thanks) kindly pointed out the judgment in Om Prakash v. State of U.P. where a prohibition on sale of eggs in Hardwar was upheld by the Supreme Court in 2004. The case is entirely on the point of what is a 'reasonable restriction'
under Article 19. It does not deal with the right to eat what I want point accepted in Hinsa Virodhak Sangh case.

But like Hinsa Virodhak Sangh, it teaches non-vegetarians to be 'tolerant' by citing Article 51A. I still fail to see this idea of tolerance which imposes a religious world-view on non-followers of that religion, and then when they complain, are told to be tolerant. Comparable examples would perhaps include non-Christians required by law to give up certain items of food during Lent, non-Muslims required by law to not eat pork and fast during Ramzan, non-Jews required to eat only Kosher meat - if they complain, they can be accused of being intolerant to Christians, Muslims and Jews respectively.

What is particularly disturbing about the Om Prakash case is that it specifically gives the majoritarian justification:
"in the present case where large number of people residing and visiting Rishikesh, believe in strict vegeratianism as a part of their religion and way of life. The appellants who are running hotels and restaurants and other like them constitute comparatively a very small section of the society engaged in carrying on trade of non-vegetarian food items in the town."

Isn't the entire point of an insulated Supreme Court entrusted with protecting fundamental rights is to guard against the tyranny of the majority? If the majority was always right, we wouldn't need the Court, the Parliament would suffice.

As a further comment on the Court's reliance on similar bans by Akbar in Hinsa Virodhak Sangh, why is a king who predates the constituion by at least half a millenium any authority on constitutional morality? Or is his being a Muslim relevant? Would the Court have quoted a Hindu ruler like Shivaji's imposition of a similar ban? Is the Court really citing the merit of the ban or the religion of the imposer of the ban?

The debate over St. Stephens' new policy

Reading Dilip's stimulating post on the judgment recently delivered by Justice Dhanapalan of the Madras High Court, and his discussion of the Pai and Inamdar rulings, reminded me that some of the same issues come up in the debate over St. Stephens' recently announced policy of quotas for Christians, and Dalit Christians in particular. (The debate has been meticulously chronicled by Nanopolitan, and some of the links provided in this post are from the archives of his blog).

The basic facts at the heart of the debate are set out in a punchy HT editorial authored by Barkha Dutt, an alumna of St. Stephen's:

"Under a new officer on special duty (Valson Thampu, my old teacher), the college has increased the overall Christian quota to 40 per cent, of which 25 per cent will be kept aside only for Dalit Christians. A certificate from a church will determine who is a Dalit Christian, and all such applicants will be measured against a cut-off of 60 per cent marks, irrespective of which subject they want to study (students competing in the general category for a seat at St Stephen’s usually need anything upwards of an 85 per cent score.) If you add the seats reserved for Scheduled Castes and Scheduled Tribes and those kept aside for the sports quota, only four out of every 10 seats will now remain genuinely competitive. Christian students and SC/ST candidates already apply at a cut-off that is 15 per cent lower than that for the general category."

Other alumni of St. Stephen's have protested against the new policy. (Ramachandra Guha's spirited response is available on Outlook, but viewing it requires a free subscription: a brief discussion of his views is available at this post on Nanopolitan's blog). Vir Sanghvi, while weighing in on the issue (and clarifying that he is not an alumnus of the college), called for a national debate over the issue. His editorial also examines some of the reasons behind the furore over the issue, focusing on the high status enjoyed by St. Stephen's college among educational institutions in India.

The current Principal of St. Stephen's has responded to these criticisms in a series of op-ed articles. Here is a link to his op-ed in the Times of India, dated June 29, 2007. A few days later, he wrote this op-ed in the HT. And this is his editorial in today's issue of the Hindu.

While others have focused on the prudential and normative basis of the policy, I hope we will be able to discuss the legal arguments for and against the policy. In her passionately argued piece, Barkha Dutt alludes to the fact that the college may have a sound legal basis for its new policy, but disputes its soundness on other grounds:

"St Stephen’s College is legally within its rights as a minority institution to bring in these new quotas (despite the fact that 95 per cent of its expenses are met by the University Grants Commission). But the college that taught us all to never accept inherited wisdom must now turn its innate questioning spirit to itself. It must answer why it has chosen to self-destruct and walk down a path that will kill the very liberalism that has defined it for decades."

Focusing on the Principal's latest response in today's Hindu, he too raises both normative and legal arguments to back the new policy. Among other policy-based arguments, he focuses on what he sees as the basic problem with higher education in the country today:

"The foremost tragedy in this country is not illiteracy. It is a system of education — from the primary level to higher and professional education — that perpetuates the status quo, aggravates social cleavages, obstructs national integration, and shuts the door on the hopes and aspirations of the poor. A veneer of legitimacy is cast over this systemic injustice with the label of ‘merit.’ Merit, as an American billionaire said some years ago, often implies little more than the accident of being “conceived in the right womb.” The time has come for us to make a distinction between ‘individual merit’ and the merit of a society. A meritorious society is one in which the hidden merit of all its members is enabled and expressed fully. Seen in this light, we are an ‘anti-merit society.’ Our very notion of merit militates against merit in the social sense. It is high time we shifted from a hierarchic to a democratic and socially pro-active idea of merit, the sort of merit that would have found favour with the Father of the Nation."

He then provides the legal basis for the new policy:

"What holds the field in the domain of minority rights today is the 2002 judgment of the Supreme Court of India’s 11-judge bench in T.M.A Pai Foundation & Ors. vs. the State of Karnataka and Ors. This judgment holds: “ ;To effectuate Article 30(1), minority educational institutions, while giving preference to students of that community, may admit students of non-minorities up to 50% . . .” It is thus obvious that admission from all other communities and categories to a minority educational institution should not exceed 50 per cent. This is so because, as the Supreme Court acknowledges, admissions have a shaping influence on the character of an institution. A minority institution loses its minority character when the minority community becomes a minority in that institution. Article 30(1) is meant, primarily, to enable religious and linguistic minorities to meet their educational needs.

According to the Guidelines for Admission 2007-2008, 40 per cent of the seats in St. Stephen’s are set apart for Christian applicants and an equal percentage for non-minority applicants. Both admissions are done strictly on the basis of inter se merit. Of the remaining 20 per cent of seats, 5 per cent is meant for sports admissions and the remaining 15 per cent accommodates social justice (SC/ST students). It is out of the 40 per cent seats for Christian applicants that 25 per cent (or 10 per cent of the total seats) is set apart for Dalit Christians. The admission of Christians from socially degraded backgrounds, or Christian Dalits, does not therefore affect the interest of non-minorities in any way."

Convinced of the legal soundness of his position, Principal Thampu expresses concerns that that by itself may not be enough to ensure that the new policy is allowed to be implemented:

" .... I am a law-abiding citizen, first and foremost. The dilemma I face is whether or not I am free to obey the law of the land within the matrix of prestige in education. Respect for the rule of law is, sadly, not a strong point in our society yet. Not infrequently, people showcase their clout by defying the law. The verdicts of the Supreme Court have the effect of ‘law declared.’ They are binding on citizens, regulatory authorities, and governments. As a law-abiding citizen of India, I am bound by the pronouncement of the Supreme Court of India to which I have to give effect, whether or not it humours certain lobbies.

It will be frightfully embarrassing if teachers and other self-styled custodians of excellence in education cry wolf against implementing the law of the land. Nobody has said yet that the Admission Guidelines for 2007-2008 fall foul of law. It is only assumed tacitly that the prestige of St. Stephen’s exempts it from the pronouncements of the Supreme Court regarding the rights and responsibilities vis-À-vis minority rights. That is dangerous and unacceptable.

The proposed national debate should not mistake a tree for the forest. It should not be about a few seats this way or that in St. Stephen’s. It should be about the mythology of higher education in this country and the operative socio-political consensus that conspiratorially excludes the vast majority of young men and women from the fruits of national development and material progress. Only 7 per cent of India’s children in the corresponding age group can, as of now, afford the luxury of higher education of any sort. The discourse on 9 per cent GDP growth needs to be humanised and humbled with the corollary as to who is benefiting from it and what needs to be done, via education, to ensure that economic development is coupled with distributive justice and human dignity. “A system that enables,” wrote President Lyndon Baines Johnson in the 1960s, “a man born of a poor peasant as I was some sixty years ago to become the President of the U.S. is the system that deserves to be ranked among the best philosophies of the world.”"

Those who have followed the complicated trajectory of the rights of minority educational institutions will be aware that St. Stephen's College was earlier involved in litigation that resulted in an important judgment delivered by the Supreme Court in 1992. There are thus any number of reasons why legal scholars and experts must focus on this current debate, which has the potential to lead to a rethinking of the existing law on the issue. This issue, like the ruling of the Madras High Court discussed by Dilip in the previous post, will require a close study of the TMA Pai ruling (2002) and may involve an analysis of the Inamdar case (2005). For a quick primer on what these cases held, I provide links to V. Venkatesan's reports on the cases, taken from the archives of Frontline. See this concise summary of the Pai case (which also includes a brief discussion of the St. Stephen's ruling). And, click here for the report on the Inamdar case.

Madras High Court ruling on quotas in unaided educational institutions

Today's Hindu is reporting a ruling by the Madras High Court which, if carried to the Supreme Court (a course of action that seems inevitable, given the issue), has the potential to cause a re-examination of the current jurisprudence on quotas in unaided professional educational institutions. Here are extracts from the report:

"The Madras High Court on Monday upheld the constitutional validity of a State legislation and a consequent Government Order directing the unaided professional colleges to surrender a certain percentage of seats to the State quota and also to follow centralised counselling for admission for management quota seats.

Justice V. Dhanapalan, dismissing a batch of writ petitions filed by various associations of self-financing professional colleges, said the Tamil Nadu Admission in Professional Educational Institutions Act 2006 had been given effect to “taking note of the local needs and, specifically, larger interest and welfare of the student community and to promote merit, achieve excellence and curb malpractices.”

The petitions challenged three specific clauses of the Act relating to the surrender of 65 per cent of the total seats to Government by non-minority institutions and surrender of 50 per cent of seats by minority institutions; admission of students for management quota seats through the centralised counselling or single window system (SWS); and admissions on the basis of marks obtained in the qualifying examinations alone."

The EPW's suggestions for resolving the Mandal II Impasse

A recent issue of Outlook magazine had this interesting piece, which asserted that the EPW's influence on governmental policy-making is considerable. If true, this probably explains why EPW editorials, more than other newspapers, adopt a tone which presume that their views will be considered if not directly acted upon.

In its issue dated April 28-May 04, the EPW 's editorial titled 'Stay the Course' (pun very much intended) has some harsh words to say about the UPA government's handling of the issue of OBC quotas:

"Indeed, so distant is the government from statesmanship that it seems unable to prevail even on an issue supported by all political parties! But the government’s discomfiture is not the point. The real tragedy is that a just cause is being made to look like petty politics. "

The editorial then sets out EPW's position on the issue, providing cites to previously published articles and articulating the background rationale for its stand:

"Over the past year, this journal has been part of the significant strand of national opinion that supports OBC reservations in higher education as a progressive step that is long overdue (‘Merits of Mandal II’, April 15, 2006). We have highlighted the urgent need for reliable evidence on the social composition of elite higher education; the challenges posed by internally differentiated aggregative categories like the OBCs; the imperative of engaging with crucial yet unexamined concepts like merit; and, finally, the need to design affirmative action programmes adapted to the specificities of higher and professional education. We have also expressed our deep disappointment with the Moily Committee (‘Myopic Oversight’, November 4, 2006) for having squandered an invaluable opportunity to provide alternative views on the creamy layer and other critical issues.

The latest setbacks are no doubt the price paid for its inexplicable silences. In its eagerness to save face in the procedural battle over the Supreme Court’s stay order, the government risks losing the larger ideological war over social justice. Even if the special bench constituted by the chief justice of India were to offer it some relief on May 8, this will not undo the damage that the government’s case has already suffered in the eyes of public opinion. Repairing this damage is not easy, particularly since the urban middle classes are a biased “public”, being largely upper caste and devout believers of simplistic notions of merit."

The editorial then lays out its suggestions for what should now be done by the government:

"[A] damage control exercise [should] be initiated that seeks to strengthen the weakest aspects of the government’s case, namely, its inability to adequately address the key issues of evidence and merit. The government must demonstrate its commitment to the collection of reliable nation-wide data on social inequality and backwardness by forming an expert group for this purpose. This would reassure the courts and end the hypocrisy of an establishment that blocks the collection of such data while simultaneously using its absence to question policies of reservation. The group could include social scientists and members of the statistical bureaucracy, along the lines of similar groups on poverty or unemployment. The time to prepare for the Census of 2011 is already here, and the blunder of 2001 – when pleas to include caste were resolutely ignored by the National Democratic Alliance government – must not be repeated.

In a parallel move, another expert committee must be set up to design context-specific affirmative action policies for elite higher educational institutions. To ensure adequate authority and autonomy, this group must be constituted by the prime minister’s office along the lines of the Sachar Committee. The committee would ascertain the social composition of higher education, examine the meanings and measures of merit, and devise detailed plans for introducing reservations without compromising standards.

Since its findings will interest the courts, the committee must include an eminent jurist, along with responsible academics sympathetic to the cause of reservations. Among the biggest obstacles to reliable research in this area are the educational establishments themselves, which have generally denied access to relevant data. This cannot continue, and access must be ensured.

The main task of this committee will be to clarify the widespread confusion between claims based on absolute benchmarks of competence and those based on relative ranking. Once the necessary absolute benchmarks are met, can relative ranking be combined with other relevant criteria to regulate entry? What ethical-legal implications follow? Will standards suffer even if entry and exit benchmarks remain uniform? Such measures will harness the expertise of the intelligentsia, exploit the professional affinity for questions of evidence that it shares with the judiciary, and circumvent the latter’s allergy to the legislature. Above all, they will inject some credibility into a campaign strangely lacking in conviction. They may even decide whether the UPA government stays the course in the fight for social justice, or allows its course to be stayed."

Given how much this issue has provoked debate on this blog, I wonder how both contributors and readers will react to these suggestions.