Judging and Politics: Using an American lens to raise some questions about the Indian situation

The latest issue of the New Yorker has a short but interesting assessment of the judicial output of the U.S. Supreme Court over the last year. The author of the article is the noted legal analyst, Jeffrey Toobin (who, like most established legal journalists in the U.S., has a law degree from an elite law school). The piece adopts a fairly standard American approach to conducting an assessment of the judicial record of the highest court of the land. By standard, I mean an analysis that is extremely (perhaps overly) sensitive to the political backgrounds of judicial actors - while this is becoming common in other jurisdictions, America is still perhaps the only jurisdiction where this realist awareness is taken to such degrees. So, in Toobin's analysis, the most important factors which explain why American judges decide the way they do, are their personal political beliefs, which in turn causes Presidents to appoint them to the Court. Here are some extracts from the piece which set out this view:

"In the next week or so, the justices will begin their summer recess. The first full term in which Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., have served together will thus be completed, and the changes on the Court, and their implications for the nation, have been profound.

The careers of Roberts and Alito have been emblematic of the conservative ascendancy in American law. Both men, shortly after graduating from law school, joined the Reagan Administration, where Edwin Meese III, who was for a time the Attorney General, and others were building a comprehensive critique of the Supreme Court under Chief Justices Earl Warren and Warren E. Burger. The conservative agenda has remained largely unchanged in the decades since: Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade, and allow states to ban abortion. As Alito wrote in an application for a Justice Department promotion in 1985, his work on abortion and race cases, among other Reagan Administration priorities, had given him the chance “to advance legal positions in which I personally believe very strongly.”

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda.

[The next few paragraphs of the article detail some important decisions handed down over the past year, which appear to confirm Toobin's claims].

All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.

... ... ...And that, ultimately, is the point. When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. Presidents pick justices to extend their legacies; by this standard, Bush chose wisely. The days when justices surprised the Presidents who appointed them are over—the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the Presidents who appointed them. At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly."

What is striking in this analysis, is the assertion that decision-making in the U.S. Supreme Court is guided almost entirely by the personal political beliefs of individual judges. Toobin does not seem to think that there are any other factors which can work towards constraining a judge in deciding disputes. In an important new book, the American scholar Brian Z. Tamanaha has called such a view "instrumental" or the idea that the law is merely a means to an end. Tamanaha asserts that under this view, "people see law as an instrument of power to advance their personal interests or the interests or policies of the individuals or groups they support." According to Tamanaha, such a view "is taken for granted in the United States, almost a part of the air we breathe," and perceives the law "as an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends." The rest of Tamanaha's book is devoted to detailing the problems which accompany such a worldview. In its stead, Tamanaha proposes what he calls a "consciously rule-bound orientation." Tamanaha accepts that personal political views and experiences will colour and affect how judges decide cases. Yet, he asserts , a judge can and should aspire for objectivity in legal decisions, which is both real and achievable in the conscious attitudes and motivations of judges.

Coming to the point of this post, I wonder about the extent to which such views of the law shape how we in India react to decisions of our own Supreme Court. As a perceptive student pointed out in a recent class discussion on constitutional theory in India, the structure of the Indian Supreme Court, and the operational details it adopts, precludes a straightforward adoption of American modes of analysis. This is because judges in the Indian Supreme Court do not sit together to decide cases, and decisions of the Court are actually handed down by twenty-six judges sitting together in benches consisting of 2 or 3 judges. On any given day, therefore, a decision of the Supreme Court of India could be given by any of ten different benches of the Court that are sitting concurrently and handing down decisions. All this is not to suggest that this makes the personal political views of judges irrelevant for decision-making. They are certainly relevant, but to conduct an analysis of how exactly they influence decisions will require a more sophisticated methodology, which accounts for the more complex practices of the Indian Supreme Court.

Also, I wonder whether what Tamanaha calls the "instrumental view of the law" is as prevalent in India. While one does see examples of this kind of analysis in India (evident, for instance, in how some newspaper commentators reacted to the interim stay order in the Thakur case), I suspect that even during the height of PIL jurisprudence (a jurisdiction which seems more amenable to allowing a judge to inject his personal views in actual decision-making) , a considerable number of people think that judges are not simply paying politics when they intervene in executive and legislative decisions. The fact that the Supreme Court consistently comes out near the end of the top of public institutions ranked for credibility, shows that it is generally perceived as enjoying legitimacy. (Of course, one way of interpreting this is that the people in general know that judges are playing politics, but simply approve of the politics that they are engaging in).

Recent discussions on this blog have focused on how Justice Pasayat, while exercising jurisdiction as part of the Vacation Bench of the Supreme Court, has handed down decisions which are apparently inconsistent. I refer here to previous posts by V. Venkatesan on the Supreme Court's orders in the Dera Sacha Sauda and Gujjar riots episodes. In analysing these decisions, both my fellow bloggers and the various commentators who reacted to these posts, have adopted explicitly "instrumental" views of the law, implying that Justice Pasayat's personal views may account for such seeming inconsistencies. On the current Supreme Court, Justice Pasayat, at least in the calender year 2007, is enjoying an undue amount of attention in part because he has had to decide some extremely controversial issues. While he was allotted the Thakur case, his decisions in the Dera Sacha Sauda and Gujjar riots episodes came about because he happened to be on the Vacation Bench. How a judge on the Supreme Court gets allocated particular cases is a matter within the administrative powers of the Chief Justice, but the general understanding of current practices is that in most cases, bench allocation happens through computerisation, and the role of individual discretion is greatly circumscribed. Still, from time to time, especially when it comes to the constitution of benches for sensitive constitutional questions, this becomes a matter of speculation and controversy. These events act as a possible counter to my speculative conclusion that Indian analysts are perhaps not as committed to instrumental views of the law, and harbour a belief that judges are subject to constraints (of text, history, and precedents, to name a few).

I invite comments, counterpoints and other responses from fellow bloggers and readers on these speculations, as well as on ways of analysing judicial decisions in India more generally.

CONSTITUTIONAL VICE OF CASTE BASED QUOTAS IN PRIVATE EDUCATIONAL INSTITUTIONS

In the OBC reservation debate, a key issue – and a more serious issue – which took a backseat is the imposition of caste based quotas in private educational institutions. The 93rd Constitutional Amendment introduced a new clause in the Constitution (Article 15(5)) enabling the State to make a special provision for advancement of socially and educationally backward classes in private educational institutions, irrespective of whether they receive aid from the state. It has an express exemption for minority-run-educational-institutions. In effect, this Amendment enables the State to impose caste based quotas in unaided private educational institutions. This Amendment is subversive of some of the most basic liberties in this country. The fact that it did not generate a strong debate in Parliament and in the media is indicative of extent of political correctness in public discourse. Thankfully, we have a Constitution where “liberty” is not a dirty word, something to be sacrificed at the altar of “equality”. After the Supreme Court’s ruling in Keshavanada Bharti (1973) – India’s unique contribution to field of Constitutional Law – any constitutional amendment which negates the basic structure of the Constitution is unconstitutional and does not have any effect. The 93rd Amendment violates the basic structure of the Indian Constitution in a four-fold manner.

First and foremost, this Amendment destroys the very essence of academic freedom. Although not expressly enumerated in the Indian Constitution, academic freedom – like the right to free press – is a special concern of the constitutionally guaranteed right to free speech and expression (Article 19(1)(a)). The right to free speech and expression is an integral part of a democratic set up and is part of the basic structure of the Constitution. Any constitutional amendment which negates the very essence of the constitutional right of free speech and expression is liable to be struck down as unconstitutional.
What constitutes academic freedom? The eminent judge, Justice Felix Frankfurter of the American Supreme Court gave a cogent working definition by outlining the "four essential freedoms" that should constitute academic freedom. He said academic freedom entails the right of a university to “determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" (Sweezy (1957)) The 93rd Amendment enables the State, instead of the concerned educational institution, to determine “who may be admitted to study”. The State is going to decide the criterion for admission. If this Amendment is upheld, the State could then be empowered, by a constitutional amendment, to decide who may teach, what may be taught and how it should be taught in private institutions. While nationalization of economic activity may be constitutionally permissible (even though economically indefensible), nationalization of educational process is not only constitutionally impermissible, but marks the end of democracy. The eminent educationist and former President Dr. Sarvepalli Radhakrishnan in his report on University Education in 1956 poignantly observed – “We must resist, in the interests of our own democracy, the trend towards governmental domination of the educational process.” Chief Justice Kirpal, speaking for a bench of eleven judges in T.M.A. Pai (2002), made the same point when he spoke about the right of private educational institutions to “pursue intellectual excellence and being free from governmental controls.” The 93rd Amendment suffocates the constitutionally protected freedom of academic institutions by trying to control their admission process.

Second, the 93rd Amendment violates the essence of the equality clause in the Constitution. The Supreme Court in a number of cases right from Keshavananda Bharati decision in 1973 to the Indra Sawhney-II decision in 2000 has affirmed that equality is part of the basic structure of the Constitution. If the stated theme of the 93rd Amendment was to impose the obligation of social justice on private unaided educational institutions, there is no justification for excluding it when it comes to minority unaided educational institutions. The irrelevance of the objective of giving preferential treatment comes out in sharp contrast when it comes to professional education, which has little nexus with the minority status. Why should a Christian or a Muslim professional educational college be exempt from admitting students from a backward class into engineering or a medical course when the same obligation is imposed on other colleges? If the objective of the government was to preserve the minority character of these institutions, the Amendment could have obligated these institutions to admit students from the respective minority communities. Secularism mandates that State cannot use religion as a basis for either imposing a duty or denying a benefit. The 93rd Constitution Amendment uses religion as the basis for discriminating against non-minority educational institutions and minority students. At a practical level, this Amendment would encourage “institutional conversion” whereby non-minority institutions would try to get members from the minority community on board and designate themselves as a minority institution to escape from the affirmative action obligation. This has happened in the past – the most glaring example being Ramakrishna Math claiming to be a minority institution! Our constitution makers conceptualized minority rights to be anti-discriminatory provisions. The 93rd Amendment turns this upside down by making it a charter for reverse discrimination. This is a violation of Equality and Secularism which form part of the Basic Structure of our Constitution.

Third, the 93rd Amendment destroys the very essence of liberty – the right to be let alone. Every individual has the right to pursue his own interests as long as he is not causing any harm to the public. The Indian Constitution does recognize this conceptualization in Article 19 which gives the citizen five valuable liberties (freedom to speak and express, move, associate, assemble and the right to practice trade, occupation or business). The Constitution does enable the State to impose restrictions on these invaluable rights, but they have to be “reasonable”. The Constitution even identifies the grounds on which these “reasonable restrictions” can be imposed. (Articles 19(2) to 19(6)) Very few constitutions have used such an approach to protect liberty. The message is unequivocal – one cannot trust law makers when it comes to the protection of our basic liberties. This carefully erected balance – between liberty and public interest, between liberty and responsibility, and between liberty and equality – forms part of the basic structure of the Indian Constitution.
The 93rd Amendment upsets this carefully erected balance by ostensibly trying put equality over liberty. A bench of seven judges of the Supreme Court in Inamdar held that caste based quotas in private institutions would amount to an unreasonable restriction on the right of private educational institutions to run the institution. The 93rd Amendment tries to overrule this Supreme Court ruling by enabling the State to impose unreasonable restrictions on the right of individuals to run an educational institution and in the process upsets carefully erected balance created by the Constitution in Article 19. As Justice Lahoti pointed out in the Inamdar case, state regulation of admissions would amount to “nationalization of seats” which cannot be a “reasonable restriction”. If the 93rd Amendment is upheld, it will create a wrong precedent. There will be no constitutional constraint in the future to stop the government from imposing an unreasonable restriction on the other liberties. Equality alone cannot be a valid justification for narrowing the scope of an already truncated liberty clause. While it’s true that liberty without equality would lead to anarchy, it’s also equally true that equality without liberty would lead to tyranny. By enabling the State to impose unreasonable restrictions on liberty, the 93rd Amendment sounds a death-knell for the liberty clause in the Constitution which is part of the basic structure of the Constitution. The 93rd Amendment validates an old maxim – our liberties are in great danger when the legislature is in session.

Fourth, the 93rd Amendment also violates the right to free speech and expression by compelling institutions to endorse caste as a criterion for admission. An educational institution that intends to run the institution for the benefit of backward sections of the society, but does not intend to use caste as a criterion for admission, will now be compelled to endorse caste since the government identifies "backward classes” primarily based on caste. The educational institution is precluded from designing its own social justice mechanism and is compelled to adopt a selection process which will entail an enquiry into the caste of the applicant. Even if the institution is against caste, the Amendment leaves it with no option but to admit students on the basis of caste. Compelling private educational institutions to use caste as a criterion amounts to “compelled speech” and this goes against the freedom of expression since right to express also includes within its ambit right not to express.
Further, caste is a prohibited criterion under the Indian Constitution for identifying backward class and by a convoluted interpretation, it became a permissible criterion. Even if it is permissible for the government to use caste in the admission process in state institutions and in the hiring process for state employment, thrusting it on private institutions violates the core of the liberty clause in the Constitution.

The pernicious effect of this Amendment can be illustrated by two real life examples. The truck drivers in the State of Tamil Nadu raised funds and constructed an engineering college to increase the educational opportunities for their children. Similarly a NRI constructed a college in Maharashtra with the sole objective of advancing the interests of Scheduled Tribe students. Nothing in the Constitution should stop these educational institutions from admitting students to serve their objective since they are not relying on the State for support. Not so under the 93rd Amendment. The State is now going to decide the admission policy and the institutions have no option but to comply. The 93rd Amendment creates a command and control mechanism in higher education.

The Amendment is now before the Supreme Court and the Basic Structure Doctrine amply equips the Court to strike down this Amendment. The Basic Structure Doctrine was intended to be used in the rare case when the core values enshrined in the Indian Constitution are under threat. The 93rd Amendment attacks the core values of Liberty and Equality in the Indian Constitution and I hope the Court strikes it down.

UPDATE

The Comments section makes an interesting point about severability – once the exemption for minority institutions is taken out, Article 15(5) can still stand on its own. This argument is inconsistent with established constitutional jurisprudence on severing the unconstitutional part from the constitutional part. (See the classic judgment of Justice Venkatram Ayyar in 1955 in RMDC case which outlines the principles of severability). The essence of these principles can be summarized as follows:
For a legislation to be severed, it has to satisfy two conditions
First, the constitutional part must be able to stand on its own, after the unconstitutional part has been severed.
Second, the Court in the process of severing the legislation cannot go against the intention of the Parliament.
In the case of 15(5), the first test is satisfied. Article 15(5) can stand on its own after removing the exemption. But severing the exemption for minority institutions would violate the second test. The effect of severing the exemption is that state will now be empowered to impose caste based quotas in minority institutions. This goes against the express intention of Parliament not to impose the obligation of affirmative action on minority institutions.
Therefore, the entire Article 15(5) has to sink once the Court comes to the conclusion that the exemption violates Secularism and Equality.

SC'S INTERVENTION IN GUJJAR VIOLENCE: A FEW QUESTIONS

The Supreme Court's suo motu notice to the DGPs of four States on what action they have taken or proposed to take against the perpetrators of the violence, triggered by the Gujjars' bandh is interesting. This is perhaps the first time that the Supreme Court has taken suo motu notice when there was large scale destruction of public and private property, due to the call for bandh by any group of people. There can be no two opinions that the organisers of the bandh must be asked to pay for the resultant losses, whether the bandh is peaceful or not. There can be a debate on whether bandh is an effective medium to register a protest, or even whether the protestors have the right to force the non-protestors to join the bandh, by creating unfavourable circumstances like road blockade etc. The Gujjars' bandh was anticipated. Therefore, why the DGPs did not take preventive action, to stop destruction of property and disruption of normal life could have been the right question which should have been posed by the Court, which would have helped the country to face similar situations in future. Therefore, the Court's question to the DGPs - on what action was taken or why no action was taken - may not really bring the desired results. Action could be taken only if the police knows who are the culprits, and this requires investigation, and the setting in motion of a legal process.
The urgency shown by the Court stems from the fact that it was disturbed by the images shown on the television by many channels. On the destruction of public and private property, it needs to be asked whether the channels identified the culprits, whether the culprits could be identified by virtue of the TV clips. If it is possible, no doubt action must be taken against them.

I would not be surprised if a proper investigation reveals that the violence was to some extent abetted by these channels, who were vying with one another to sensationalise the issue. The repeated manner they were showing the 'violent' clips during the week-long disturbances even made the I&B Minister so disturbed to call these channels and advise them to follow some code of behaviour, so that they don't unwittingly contribute to the spread of violence. A serious discussion in Parliament on any issue makes no news; but pandemonium does. Similarly, a peaceful protest makes no news to these channels; a violent protest does. Since you cannot show killings, show destruction of property, encourage and abet a peaceful crowd to do that in order to gain publicity on T.V. is the in-house unwritten code for many of the television journalists. "As the electronic media shows, the offenders feel that they have done some heroic or laudable thing because they show their beaming faces when the TV camera is focused on them," the court in its brief order recorded. Therefore, in its anxiety to ensure justice to the victims of this national shame, the Court should not close its eyes to the shame within the media.

Having said that, certain disturbing questions are bound to be asked about the merits of Court's intervention in this case. No doubt, the Court was moved by a genuine concern that justice be meted out to the victims of violence. But, only on June 4, the Vacation Bench rejected a plea to intervene in the violence instigated against the Dera sect in Punjab. The plea of the petitioners was for a direction to the authorities to ensure protection of the lives and properties of the followers of the sect, and the sect itself in the wake of the threats from the hardline Sikh groups. But the Court rejected the plea saying only State could handle religious conflicts. The Court said it was a religious issue on which no writ mandamus could be issued. It also stated that the tension arising out of the situation was purely a law and order problem that had to be essentially handled by the government agencies.
Reacting to the plea of Dera Sacha Sauda counsel Rajiv Dhawan that the deras faced a threat of closure, apparently from Akal Takhat, the Bench said, "Sensitisation of the issue should not involve the court… it is not the court’s job to decide where the BSF or Army should be deployed… for that, you have to approach the government."
As Dhawan said the problem was not confined to the jurisdiction of Punjab and Haryana High Court but some other states like Rajasthan, Uttar Pradesh and Jammu region of Jammu and Kashmir were also involved, the Bench said, "The genesis of the problem is essentially Punjab."
Personally, I am not at all convinced by the distinction sought to be drawn by the Court between the violence resulting from the Gujjars' demand and the one following the threat to the Dera sect in Punjab. If the Court could intervene in the former, they could do so in the latter also with justification.

Update: In the comments section, Mr.Harish points out the inconsistencies in the Court's intervention. Just one instance would suffice to show why I find Justice Pasayat's judicial philosophy, with utmost respect to him, wholly puzzling. In the AIIMS Doctors' strike during the height of their anti-reservation stir, he had extracted a promise from the ASG that the striking medicos would not be deprived of their salary during the strike period, even though they were not entitled to it in accordance with the principle, no work no pay, as a court-mediated solution to end their stir. The striking doctors caused immense chaos to the health services during the strike period, still the court was keen to condone their action, and even reward them for their strike. The contrast with Gujjars needs no explanation.

GUJJARS' STIR: THE TRUCE AND THE MESSAGE

The Gujjar leaders' acceptance with alacrity of the Rajasthan chief minister's peace formula will be widely admired. Never in the history of such violent protest movements, a protesting group was too eager to grab an olive branch, even though it was predominantly at the receiving end of the state violence. Not just that. A bit of Gandhigiri was also evident; its leader sincerely apologised to the nation for the violence unleashed by the community to express its protest. It is nobody's contention that the formula unveilded by the Government - the appointment of a commission headed by a retired Judge of the High Court - could lead to a solution which would be entirely satisfactory to the warring groups. It could at best give the Government and the stake-holders a respite from the period of madness which characterised the week-long violence which paralysed life in much of North India, and threatened to unleash a large-scale civil war involving the two dominant communities. Now that peace has returned, the focus must now be on rebuilding the social fabric in Rajasthan and elsewhere, and depoliticise the issue. Today's story in Business Standard finally focusses on the merits of Gujjars' demand - a point which I had tried to analyse in my earlier post. Sociologist Nandini Sundar's article in HT here provides an academic perspective on the issue. The state Government must also act quickly, without further waste of time, in creating sub-categories within the OBC-fold, and apportion a specific percentage for Gujjars within the OBC, without waiting for the Commission's report. In any case, inclusion in the ST list is a lengthy process, and Gujjars, like others already waiting, cannot aspire for quick decisions in their favour.

LIBERALISM IN INDIA: INCONSISTENCY EXPLAINED

My post on what it means to be a liberal in India elicited insightful responses on the limits of liberalism. Here, I bring to our attention, an article written by Mukul Kesavan in the Telegraph on May 31 here. (Thanks to Mr.Abi for the link) He handles the problem of liberal inconsistency - an issue of concern to some of us - in historical context, which should be of interest to all of us. He says in this crucial paragraph: "Being inconsistent in these matters is not always a dishonourable position, because liberal inconsistency has some warrant in the history of the republic. The Indian state’s policies were often less than even-handed because it needed to manage anxiety and vulnerability and difference. The decision not to extend the uniform civil code to Muslims, for example, was one of these inconsistencies. Many liberals criticized Nehru’s ‘failure’ to draw Muslims into the ambit of a uniform civil law, but equally there were many who sympathized with his decision because they agreed with his sense that the Fifties was a time when a Partition-torn Muslim community needed reassurance, not ‘robust’ reform. You can argue that the exemption of Muslims bought the young republic time to make its Muslim population feel at home. You can equally argue that it was a timorous and cowardly unwillingness to grasp the nettle which gave the Hindu right a stick to beat secular liberals with. In a country as diverse and complicatedly troubled as India, one size doesn’t always fit all. But those of us who cite our Republican history as precedent, who argue that circumstances alter cases, and believe that consistency is, sometimes, a poor guide to policy, must also accept that there will be times when our inconsistency will be exploited by our ideological enemies to attack people and institutions that we value."

GUJJARS’ FURY (PART II): MERITS OF THEIR DEMAND

THERE has been little media attention on the merits of Gujjars’ demand to get into the ST list. Most commentators have pointed to the origin of Gujjars’ demand, and assumed that if Jats had not been included in the OBC list, Gujjars would not have sought entry into the ST list, even though under the ST list too, they would have faced stiff competition from the more powerful Meenas in the State.
First, the facts. The Scheduled Tribes are specified in accordance with the provisions of Art.342. The first list in relation to a State/UT is by a notified Order of the President, after consultation with the State Government concerned. Any subsequent modification can only be effected through an Act of Parliament, as it requires an amendment of the Constitution. The first list was thus promulgated on Sep.6, 1950 and is known as the Constitution (ST) Order 1950.
The criteria fixed for inclusion of a community in the list of STs are:
1. Indications of primitive traits,
2. Distinctive culture,
3. Geographical isolation,
4. Shyness of contact with the community at large, and
5. Backwardness.
The communities fulfilling the above criteria are considered for being notified as STs, in accordance with the modalities approved by Government in June 1999. (in the case of OBCs, the criteria is mainly about social, educational and economic backwardness, whereas in the case of SCs, it is untouchability. The National and State BC commissions should normally operate independently in their fields, namely the Central and State lists, though I am not sure of this). These modalities have laid down a procedure to be followed with regard to inclusion or exclusion of any community in the list. Before a Bill is introduced in Parliament for this purpose, any representation on these matters must first be sent to the State Government for comments. If the State Government recommends that the request be acceded to, the proposal with the recommendation of the State Government will be sent to the Registrar General of India. If the RGI agrees with the comments of the State Government, the proposal is then sent by the Ministry of Tribal Affairs to the National Commission for SC and STs. (it has now been split into one for SCs and another for STs).

In case the State Government, the RGI, and the NCST all agree, the Ministry then approaches the Cabinet for approval. After the Cabinet approves the Bill, it is sent to Parliament.
In case the State Government agrees but the RGI does not agree, the proposal is sent back to the State Government along with the RGI’s comments. It is then open to the state Govt. to try to convince the RGI with new facts and figures. Where the State Government and the RGI both agree, but if the NCST does not, then the Ministry of TA has to reject the proposal.
While considering a particular claim for inclusion, it is necessary that it must by and large satisfy the five-point criteria mentioned above. There is no weightage assigned to each of these criteria. Now, let us take some of the recent instances considered for inclusion. (There has been no inclusion to the ST list for the past three years, even though some 1016 proposals are under various stages of consideration, according to an answer given to an unstarred question no.941 on 6-3-07 in Lok Sabha).
In 2001, the demand to include Gowada, Kunbi, Velip, and Dhangar communities of Goa in the list of STs was considered. The Centre had failed to extend the Constitution (ST)Order 1950 to the U.T. of Goa, Daman and Diu, immediately after the liberation of Goa in 1961. Although in 1968 the Goa, Daman and Diu (ST) Order 1968 was promulgated, it declared only tribes from Daman and Diu as STs, while those from Goa were excluded.
The Government of Goa recommended the inclusion of these four communities in the ST list of the State. The RGI and the NCBC (The NCSC or NCST were not in existence then) concurred with the State Government with regard to Gowada, Velip and Kunbi communities. The RGI did not favour Dhangar’s inclusion. A Parliamentary committee which examined the issue, however, favoured Dhangar’s inclusion. The MTA told this Committee in 2001, that it was preparing a Cabinet note for the inclusion of the other three communities. The MTA also told the committee that it was merely a post office in finalisation of such claims, an admission which the Parliament committee had then deplored. Accordingly, the three tribes were added to the ST list. One does not know whether the non-inclusion of the fourth community was an election issue at all in the recently concluded Goa assembly elections.
In another instance, the West Bengal Government recommended the inclusion of ‘Deswali Majhi’ community in the ST list. The West Bengal government claimed in 1999 that this community might have some association with the Santals in the long past, but at present it is a separate community. The RGI in 1981 did not favour its inclusion on the ground that they had given up Santal language, and they were not considered by Santals as belonging to their community. The community fulfilled only two of the five-point criteria for inclusion – 1 & 5. However, a Parliamentary committee found in 2001 enough historical evidence suggesting that it was a tribe, and asked MTA to seek RGI to expedite reconsideration of the State Government’s recommendation in this regard. As in the Goa case, the current ST list for West Bengal does not include this community, and one does not know the views of RGI and NCST in this regard.
The statement furnished in the Lok Sabha in response to a question in March this year reveals that Assam tops the list of proposals being considered for inclusion in the ST list (113). There are 18 proposals from Rajasthan. But if the reports are any indication, the State Government is yet to forward its recommendation on Gujjar’s demand to the Centre; therefore, Gujjar is certainly not one of these 18 proposals.
Gujjars have been recognized as STs in Himachal Pradesh and J&K, but not in other States, underlying the geographical differences. Despite their recent fury, there has been no attempt on the part of their leaders to articulate their demand for inclusion in the ST list, or how they qualify the criteria. Merely because Meenas, a community similarly placed, has been in the ST list, does not ipso facto sustain their claim. It is said that only Bhil Meenas in South Rajasthan, especially in Udaipur belt, are the real STs, and that other Meenas have been wrongly included. If it is so, then it has to be shown with proof, to convince the authorities concerned, without taking recourse to agitations, which would politicize the issue, and make it beyond resolution.

GUJJARS’ ANGER: A WAY OUT – PART I

I thank Mr.Vivek Reddy for initiating a debate on Pratap Bhanu Mehta’s article. For the present, I will hold my comments on his stand on the issues being referred for consideration by the Constitution Bench on the Mandal II matter. It is important to note that the Constitution Bench, to be set up by the CJI, is not bound to consider all the issues which have been framed for consideration by the PP Bench. Some of the issues, including the one cited by Mr.Reddy in his short comment, are debatable, and doubts have been expressed privately whether they need to be referred and considered at all. Prof. Upendra Baxi, for instance, has expressed his surprise that one of the issues being referred is whether Mandal II law has violated the Universal Declaration of Human Rights. He has termed it as ‘Globalisation of Human Rights”, a view which requires some elaboration. The Constitution Bench is free to conclude that some of these issues don’t deserve to be considered at all, and if they do so, it is easy to find justification for it. I notice that some of the responses in the Comments section to Mr.Vivek Reddy’s view, has already echoed this sentiment. Therefore, I am not dealing with the Mandal II matter here for the moment.
I come back to Mr. Mehta’s article. He is in fact suggesting that caste mobilization to secure the OBC/ST label is seen as the solution, and the political class aggravated it by not taking timely steps to defuse the situation.
Two things: One, how did the Jats get into the OBC category in Rajasthan? No doubt, mobilization helped those responsible to consider their demand. But nobody looks at the reasons the NCBC gave to justify their inclusion in the OBC. The NCBC has done a detailed study running into nearly 100 pages, examining historical and social evidence. One important conclusion which they reached was that the Jats, excluding those in Bharatpur and Dholpur, were tenants historically, and were always involved in the struggle against landlords. As tenants, they had not secured their rights, and land reforms were delayed because of entrenched feudal elements in the State. The Government, too, while including the Jats in the OBC category, has consciously excluded Jats of Bharatpur and Dholpur, as in these two areas, Jats were the rulers. (The former external affairs Minister, Natwar Singh is a Jat from Bharatpur, for example.) In Ajmer, which was under the administration of the Commissioner during the British rule, Jats were included as the BCs. In any case, if there is a genuine complaint, that Jats were unjustly included in the OBCs, then it could be represented to the NCBC for a review of its decision. There is no point in suggesting that inclusion of one community in the OBC list left the other communities in the list with no option but to demand their inclusion in the ST list.

Secondly, Rajasthan seems to have learnt no lessons from the manner other States have learnt to manage similar social tensions. The BJP unjustly promised the Gujjars that their demand for inclusion in the ST list would be considered. Instead of promising this, the BJP could have sub-divided the existing OBC quota, and fixed percentages for different communities. Tamil Nadu defused a similar violent protest by Vanniars, by creating MBCs within the OBCs. Andhra Pradesh and Karnataka have four categories within the OBC quota. Kerala has eight. Ezhavas, the largest OBC community in Kerala, is a very backward class, and has 14 per cent reservation. Beyond this, the Ezhavas have to compete on merit. There is grumbling, but it is all manageable. The Gujjars’ grievance stems from their perception that Jats’ entry into the OBC list has created some sort of imbalance: the answer is to create a semblance of balance, by protecting the Gujjar’s quota, by creating a new most backward class category within the OBCs. Uttar Pradesh under Rajnath Singh had done a similar thing, when he included Jats of U.P. in MBC category. It is, therefore, curious why Rajnath Singh as Party President, has not advised the Rajasthan Chief Minister to try a similar method, when Gujjars first made their displeasure known about Jats’ entry into the OBCs. Tomorrow, I intend to discuss more on the Gujjars’ demand for inclusion in the ST list.