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End of Caste-based Reservations? IX Schedule verdict

Thursday, 11th January 2007 will go down in the history of independent India as a historic day indeed. It was on this day that the Supreme Court came out with yet another land mark judgment. A nine-judge bench’s unanimous judgment held that laws taking shelter under the IX Schedule of the Constitution of India is subject to judicial review. The ruling has warmed millions of hearts and has been welcomed by legal luminaries in India.

The ninth schedule was Nehru’s brainchild to keep land reform laws outside judicial purview. Nehru, the shrewd politician, probably foresaw that such provisions would be abused. But apparently he was a mute protagonist, hindsight would tell us. Even he could not have foreseen what succeeding generations of politicians would be up to. As has been the wont of this super class of India, this provision was grossly abused over the past six decades. They packed behind the IX Schedule almost 300 laws to escape judicial scrutiny. Sadly, many of these legislations have made a mockery of the citizen’s fundamental rights – to equality and justice against discrimination on the grounds of religion, race, caste, sex or place of birth and the equality of opportunity in matters of public employment – guaranteed by the Constitution, and hence needed a protective cover. These legislations were craftily designed to create, sustain and pander to a constituency – a pandering that widened the gulf between the politicians and the spirit of India. In the context of caste-based reservations, these fundamental rights were reduced to non-justiciable piece of text. It should be noted that of late, much has been made in the media of ”judicial activism”. A dispassionate examination of the arguments presented by the learned counsels during the hearings as well as the verdict in this case or for that matter the verdicts in other cases that have riveted the nation’s attention in the immediate past do not show any “judicial activism”. It is but a fictitious invention of the media and a hyper sensitive political class that have a vested interest in morphing the truth. The verdict in question has, after six long decades, put the judiciary on an equal footing with the legislature and executive. Let there be no doubt that the ultimate protector of the Constitution in a democracy is the judiciary and the Supreme Court of India has staked its claim.

The land mark judgment will open the door to a flood of litigations. Prominent among them would be those seeking to expunge the Tamil Nadu Act of 1994 that provides for 69% reservation, quantum of reservations for other backward castes (OBCs), Delhi (Special Provisions) Act, COFEPOSA and other well known laws. It would be interesting to watch the sheer number of litigations that are likely to come up before the courts. Many laws will not pass muster and are likely to be struck down. However, it would be ingenuous to expect the political class to take this lying down. In any case, the outcome of these litigations will chart a new course in the political history of India.

It will be interesting to see the impact of this ruling on India’s future. It is easy to foresee far reaching consequences in the spheres of reservation, economics and politics. Most welcome impact is that it will put the fear of Courts in the minds of our politicians. That by itself is no mean achievement.

The biggest impact will be seen in reservation related litigations. Whether it is the validity of caste-based reservations, exclusion of creamy layers, reservations in promotional opportunities or for that matter reservations in private sector – all will be reviewed and decided afresh. The verdict is a loud and clear death-knell to the present avatar of reservations!!! This is indeed historic. The author has written earlier against caste-based reservations. For sixty years, in the name of affirmative action, a legal perversity was perpetrated on India’s youth. Over the years, the poorest of poor among the scheduled castes and tribes have been heartlessly denied their full share, as Manmohan Singh would like to call, of the fruits of development. Also, thousands of bright young minds from financially weaker sections were denied professional education or promising careers in public service only because they were born in so called forward castes. The fruits, on the other hand, were funneled to the elite among a group of well organized, obstreperous caste formations that provided patronage to the politicians. Caste-based reservation, in reality, was a subterfuge deployed by this small but influential group to hoard for itself the so called fruits of development at the cost of every other section of society, in particular the poorer sections.

When such injustices and rank discriminations were questioned in the courts of law, the blind lady of justice could provide no redress to the plaintiffs. The principal obstacle was the protection proffered by the IX Schedule. Probably a direct consequence was the flight of human capital from India and a simultaneous but gradual build up of economic deprivation and poverty. The young India that protested Arjun Singh’s reservations last year – I am referring to the hundreds of doctors, engineers and people from every walk of life who took to street protests – stands vindicated. This verdict of the 11th of January 2007 is no small victory for them.

The economic consequences are rather indirect. The immediate consequence is the hope that the litigations that follow will end discrimination in educational and professional opportunities. Logically, opportunities in education and profession for all people will empower the underprivileged families economically. It will slow the flight of talent from India. With or without political patronage, the poor will have a level playing field. It is useful to remind here that over 50% of India is below the age of 35. With most of their productive lives ahead of them, their contributions to nation building will be enormous. The scheduled castes and tribes will receive their share of the fruits of development with out being waylaid by undeserving groups.

The most delectable fall-out is the demise of vote bank politics. It will be extremely difficult to design laws that are meant to divert political largesse to well entrenched voting blocks. Ultimately it may even spell the death of such political vehicles in India. For a pluralistic society like India, this will be a major leap forward. No longer can the likes of Arjun Singh think of creating reservations that are impinging on the rights of others. They have work to hard and come up with new ploys to win elections.

Finally, it will be difficult even for ”progressive judges” to undo the fundamental rights of citizens through grandiloquence and subtle and nuanced judgments that had so far helped reservations rob the future out of hundreds of young Indians.

The Supreme Court of India has, with a stroke of the pen, saved India from 56 years of a perverse legislative provision, but in the process has also opened the flood gates to a very welcome litigious year(s).

January 15, 2007

Also posted at :

Boloji.com         Indiacause.com        Bharathwaves.com       Youth4Equality-Chennai

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Posted by on January 20, 2007 in Reservation

 

Undoing India through Caste Reservations

The anti-reservation protest in India has attracted wide attention and anger among most Indians. Almost all reasonable citizens and non-citizens have condemned the move to establish quotas in educational institutions. Many have written on this issue. The common theme has been to expose the attempt by Arjun Singh and his backers to divide India on caste basis under the guise of affirmative action. There was rising public anger against Arjun Singh for designing a problem which was at best forgotten and against a weak Prime Minister whose repeated assurances on the issue fell on deaf ears. We have seen how these gambles have already snow balled into a disaster for the present government. The issue is now being considered by the supreme court of India.

The visuals – of doctors being lathi-charged, women students being water cannoned or fasting students lying in shamianas – have evoked strong emotions across the country . Middle class India – that symbolizes today’s India – sympathized with the striking doctors. The issue is far larger than a problem the doctors and would be doctors alone had to fight. The middle class automatically identified the problem as theirs too. Even corporate India had a stake. The middle class in India has been sized by several market research estimates at about 300 million. Assuming a 10% margin of error, the middle class translates to at least 270 million Indians. Even if we assume only 50% of this group is against reservation – I am being very conservative here – this still is a huge number – 135 million Indians had every reason to be angry. In other words, here is an emerging constituency of almost 10% and counting of the total population thanks to the government’s ill conceived and cunning move.

Well, let us face it. Nobody is against affirmative action. The poor and under privileged in India need to be provided quality medicare, primary and secondary school education, reasonable chances to pursue college degrees and better economic opportunities. But since Independence, the political parties have lost credibility by playing the caste card under the guise of affirmative action. Even if half hearted attempts had been made, fifty years is a long time for bleeding hearts like Arjun Singh to better the lives of India’s poor. But the sad fact is that today the largest collection of the world’s poor live in India. Pray tell us, Arjun Singh, what did you do as Chief Minister to really better the lives of OBC in your state? Millions in your state remain impoverished in spite of your benevolence. Bottom line, the middle class does not buy Arjun Singh’s concoction. So that explains the reservation rubbish. But what is new?

Unlike the times of Mandal-I, today’s India’s rapid reduction in poverty is well documented. The economy has seen very rapid growth rates and is touching 8.4%. Forex reserves are north of US$ 130 Billion. Agriculture and industrial growth have been impressive. MNC investments in India are routine news. More people are well employed resulting in rising per capita incomes. Planned and/ or forced economic reforms – depends on how you see it -over the years has quietly changed India’s face – the economic one at least. So when Arjun Singh speaks of Mandal-II he is addressing an India that has come a long way from Mandal-I. There began his miscalculation.

Mandal-II or shall we say Arjun Singh-I had more differences. Probably for the first time the private sector raised its voice. Several industry leaders have spoken up unequivocally against reservations in educational institutions as well as the corporate sector. This new confidence of India Inc. stems from successes it had seen both in India and abroad against global competition, thanks to meritocracy rather than quota-cracy. Secondly, the demise of license-raj has severely limited the political class’s ability to punish or harass a private sector.

Protesting doctors and students found endless supplies of cash donations, food, bottled water, cooling fans and other goodies streaming into protest venues. Retired Chief Justice Lahotia and other legal luminaries offered legal counsel to the students. The message was clear. The student protest threatened to get out of control. Well, only those who were insulated from reality would have been oblivious to the consequences anyway. It now appears Arjun Singh is one of them. Even in his wildest dreams he could not have foreseen the middle class response and consequent consolidation. Or is he really shrewd and playing Shakuni to destroy the Congress party where he never had a chance anyway? Or is a new chapter in India’s political history unfolding? But one thing is clear. The political class can no longer play the reservation game without shooting itself in the foot in the first place. It will be interesting to watch the battle to undo India through caste reservations move from the streets to the Supreme Court. Stay tuned folks.

June 3, 2006

Article also posted at

Boloji.com            Indiacause.com 

 
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Posted by on January 20, 2007 in Reservation

 
 
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