1 Indian Society
Indian Society is predominantly a Hindu Society. This society is based on chaturvarnya – the 4 varnas, viz., (i) Brahmins – the priestly class, (ii) Kshatriyas – the warrior class, (iii) Vaishyas – the trader class, and (iv) Shudras – the service class. These four varnas are divided into thousands of castes. This social structure is based on the principles of graded inequality and ascending scale of reverence and descending scale of contempt. The social division is not horizontal but vertical with Brahmins at the top of the ladder and Shudras at the bottom. Below these strata are the outcastes, the Untouchables who are an appendix of the Hindu society.
2 The Untouchables
Constituting 15% of India’s population, the untouchables were denied temple entry, drawing of water from public tanks & wells, and other basic human rights. They were allowed residences only at the outskirts of the villages and were not allowed to wear good clothes and their women good ornaments. They were subjected to humiliations, insults, indignity, forced labor, and unclean professions. They were condemned to untouchability, unseeability, and inapproachability. They were debarred education. For thousands of years they have been tortured, persecuted, exploited, oppressed and suppressed. By completely banning education for them, society ensured that they were perpetually kept under ignorance.
2.2 The tragedy was that their untouchability and graded inequality had religious sanction. The ingenious theory of Karma and Rebirth, forced them to resign to their lot, by emphasizing that their pathetic position was due to their destiny, attributable to the sins which they had committed in their past life. There was no escape. Accordingly the Untouchables could not dare to revolt for fear of worse life in their next birth. Their condition was completely wretched and miserable and was worse than the slaves and the Jews under the Nazis.
2.3 Ironically, it was under the British rule that Untouchables were recruited for their military services and education was not denied to them. It was this availability of education, which enabled some people from this stratum to realize the extent of their exploitation.
3 Dr Ambedkar
One individual who managed to break free of the shackles of caste dominated Hindu society was Dr B R Ambedkar, an untouchable, who fought against all odds and obtained higher university education in UK, USA and Germany. He went on to become one of the most highly educated and learned personalities of India. He saw the mischief, injustice and harm done to the Untouchables by the Hindu religion. He was convinced that after the British transfer power to the Hindus of India, the future of the Untouchables cannot be safe and they would be subjected to indignities. Their exploitation and persecution would continue and the Untouchables would never get justice from the Hindus. Dr Ambedkar made the emancipation of the Untouchables and enlightenment of the Indian society as his life’s mission. Towards this end, he devoted his life for securing constitutional safeguards and protections for the weaker sections of the society, particularly the Untouchables and the Tribals; who were later designated as Scheduled Castes and Scheduled Tribes.
3.1 In his forceful submissions before the Simon Commission in 1928-29, and the three Round Table Conferences held at London during 1930-32 Dr Ambedkar very scholarly and successfully advocated for the case of the untouchables and secured them safeguards to be included in the future constitution of India.
4 Before the Simon Commission
4.1 In his memorandum to the Simon Commission Dr Ambedkar stated, “…administration cannot merely consist in applying the law. It includes the making up of rules, which have the force of law, and of working them out. This system of legislation by delegation has become a very common feature of all modern governments and is likely to be on the increase in years to come. It must be accepted as beyond dispute that such wide powers of rule making affecting the welfare of large classes of people cannot be safely left into the hands of the administrators drawn from one particular class which as a matter of fact is opposed to the rest of the population in its motives and interests, does not sympathize with the living forces operating in them, is not charged with their wants, pains, cravings and desires and is inimical to their aspirations, simply because it comes out best by the test of education."…"officers who are drawn from a particular caste and in whose mind consciousness of caste sits closer than the conscientious regard to public duty, may easily prostitute their offices to the aggrandizement of their community and to the detriment of the general public."
4.2 Dr Ambedkar asserts that the case of Indianisation did not rest upon efficient administration. It rested upon considerations of good administration. Dr Ambedkar was of the view that European bureaucracy constituted the most efficient government possible. But, European bureaucracy, efficient though it was, was condemned as it was found to be wanting in those qualities, which make for humane administration. On the same logic Dr Ambedkar says that for not only an efficient government but for a good government, the admixture of various sections of the society needs to be ensured by providing reservations for them. He said that the disadvantages arising from the class bias of the officers belonging to Brahmin and allied castes has outweighed all advantages attending upon their efficiency and that on the whole they have done more harm than good. He feels that admixture of different communities in public services may perhaps import a small degree of inefficiency but it will supply a most valuable corrective to the evils of class bias. This has become all the more necessary because of the social struggles that are now going on in the country. The struggles between the Brahmins and the non-Brahmins, between Hindus and Mohammedans, between Touchables and Untouchables for the destruction of inequalities and the establishment of equality, all with all their bitterness, cannot leave the judges, magistrates, civil servants and the police without being influenced in their judgment as to the right or wrong of these struggles. Being members of the struggling communities they are bound to be partisan, with the result that there may be a great loss in the confidence reposed by the public in their servants.
5 THE ROUND TABLE CONFERENCE
5.1 At the Round Table Conferences, Dr Ambedkar very brilliantly and forcefully put forth the case of the essential rights and safeguards for the Untouchables. He submitted that the Depressed Classes, and other minorities, fear that any future Constitution of India by which majority rule will be established, (and there can be no shadow of doubt that that majority rule would be the rule of orthodox Hindus), there is great danger of that majority with its orthodox Hindu beliefs and prejudices contravening the dictates of justice, equality and good conscience. There is a great danger that the minorities may be discriminated against either in legislation or administration or in the other public rights of citizenship. Therefore it is necessary to safeguard the position of the minorities in such a manner that the discrimination, which is feared, shall not take place. From that point of view what is asked is that the minorities shall have representation in the Legislature and the Executive and they shall have representation in the public services of the country.
5.2 Dr Ambedkar demanded that the Depressed Classes must be given sufficient political power to influence legislative and executive action for the purpose of securing their welfare. He said that the Depressed Classes have suffered enormously at the hands of the high caste officers, who have monopolized the public services, by abusing the law or by misusing the discretion vested in them in administering it to the prejudice of the Depressed Classes and to the advantage of the caste Hindus, without any regard to justice, equity, or good conscience. This mischief can only be avoided by destroying the monopoly of caste Hindus in Public Services and by regulating the recruitment to them in such a manner that all communities including the Depressed Classes will have an adequate share in them.
5.3 Dr Ambedkar said, “I am not going to allow the majority to select my candidate. No, under no circumstances.” He very strongly pleaded for separate electorate for the Untouchables fully justifying the essential need for that course to be adopted. Since the Indian delegation could not reach an agreement they left it to the Chairman of the Round Table Conference, the Prime Minister of Britain, Ramsay MacDonald, to give his Award. However when Ramsay MacDonald announced his Communal Award, which included Separate Electorate for the Untouchables, Gandhi vehemently opposed it, staking his life. Ultimately Dr Ambedkar was coerced to compromise and enter into an agreement (Poona Pact) on 24 Sept 1932, sacrificing separate electorate, which was substituted by joint electorate for 10 years, which later on was transformed into general electorate with reserved seats for the Scheduled Castes and Scheduled Tribes for a period of 10 years which are being extended every 10 years. But the so-called representatives of the Scheduled Castes/Scheduled Tribes are thrust on the Scheduled Castes/Scheduled Tribes since they can be elected even without a single vote of the Scheduled Castes/Scheduled Tribes being cast in their favor. This was a great fraud played on the Scheduled Castes and Scheduled Tribes.
6 Dr Ambedkar's Concern
6.1 In his serious concern and deep anxiety to secure safeguards for the Scheduled Castes/Scheduled Tribes to be included in the future Constitution of India, Dr Ambedkar dashed to London and met Clement Attlee, the Prime Minister of Britain, and Winston Churchill, and had useful discussions with them in Oct-Nov 1946. Dr Ambedkar was very pleased with these discussions, as he told us, when we the SC/ST Scholars studying in UK hosted Reception in his honour on 2 Nov 1946.
6.2 Dr Ambedkar was very keen to enter the Constituent Assembly with the sole purpose of ensuring that suitable provisions in the Constitution of India would secure the interests of the Scheduled Castes/Scheduled Tribes. But this was made difficult from his home state Maharashtra in face of the opposition of Vallabhbhai Patel and others. Ultimately he successfully fought the election from Bengal and remained Constituent Assembly Member representing Bengal from Dec 1946 to July 1947. Later he was unanimously elected from Bombay in the vacancy of Dr. M R Jayakar who had resigned. Dr Ambedkar was made Minister for Law on 6 Aug 1947 and Chairman of the Constitution Drafting Committee on 29 Aug 1947. He made certain that Scheduled Castes/Scheduled Tribes Safeguards were included in the Constitution of India.
6.3 "We, the People of India" on 26 Nov 1949, adopted the Constitution of India with a solemn resolution to ensure to all its citizens among other things, social justice and equality of status and of opportunity. That Constitution provides certain safeguards and reservations for the Scheduled Castes and the Scheduled Tribes.
7 Some of the important provisions are as under:
7.1 Political Reservations
Art. 330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People – Seats shall be reserved in the House of the People for
(a) The Scheduled Castes,
(b) The Scheduled Tribes except the Scheduled Tribes in (i) the tribal areas of Assam, (ii) Nagaland, (iii) Meghalaya, (iv) Arunachal Pradesh, and (v) Mizoram.
(c) The Scheduled Tribes in the autonomous districts of Assam.
Art. 332 Provides for reservation of seats for Scheduled Castes/Scheduled Tribes in the Legislative Assemblies of the States.
Art. 334 Provides for time limit to the reservations under articles 330, 332 for Lok Sabha and State Assemblies for 10 years which parliament can extend from time to time. The current extension is up to 2000 AD.
7.2 Reservations in Services and Posts
Art. 335 Claims of Scheduled Castes and Scheduled Tribes to services and posts: -
The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
Art. 46 Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections: -
The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
7.3 Rather than honestly and sincerely implementing the safeguards these are being opposed and questioned by very dominant sections of the society including the executive and the judiciary. The idea of social justice and equality are foreign to the Indian culture. Only political reservations are being implemented in full, but the fact remains that MPs and MLAs who are supposed to represent the Scheduled Castes/Scheduled Tribes can be elected without even a single vote of Scheduled Castes/Scheduled Tribes being cast in their favour.
8 Reservation in Services
8.1 There is a complete misunderstanding about the reservations in services. The misunderstanding could be due to lack of knowledge and information, or could be deliberate since they have never reconciled to the idea of reservations. After passing through crushing miseries and endless trouble throughout his life and fighting his powerful opponents, Dr Ambedkar secured reservations for the Scheduled Castes/Scheduled Tribes. The Indian society has done unpardonable wrong to the SCs/STs over thousands of years. The learned Dr Ambedkar rightly came to the conclusion that the SCs/STs cannot expect justice from Hindu society because their mindset formed and developed by the Hindu scriptures, cannot allow them to be fair and just to the SCs/STs. He therefore wanted that SCs/STs should get their share in running the affairs of the country. The most important objective was that the SC/ST officers should occupy executive and strategic posts and watch and safeguard the interests of Scheduled Castes/Scheduled Tribes community as a whole.
8.2 When the reservations only ensure the Scheduled Castes/Scheduled Tribes their due share, and is never at the cost of others, it is strange that the reservations are being opposed by the high and mighty of the country, including the government and the judiciary. These people are doing a great harm to the interests of the Scheduled Castes/Scheduled Tribes, by discouraging efforts to protect them from human rights denial. They are also insulting the Constitution of India. Certain illustrative examples mentioned below will reveal the extent of their misunderstanding of and opposition to the safeguards of the Scheduled Castes/Scheduled Tribes.
8.2.1 Marc Gallanter
Reservations have been described as compensatory discrimination by Marc Gallanter, American scholar, while delivering Dr Ambedkar Memorial lecture at New Delhi on 9 March 1992 . I pointed out to him that the reservations for Scheduled Castes/Scheduled Tribes is not a compensation for the wrongs done to these people by the society in the past but they are safeguards for the future. Since the reserved quota is their legitimate due share on which others cannot have a claim, there is no element of discrimination. He readily agreed to my point of view.
8.2.2 Indira Gandhi
During the 1981 Gujarat anti-reservation agitation the Lok Sabha stood as one person to support the reservations policy stating that it was not negotiable. This was the second standing ovation on the floor of the Parliament, the first being at the time of 1971 war victory. However, during this discussion earlier, Indira Gandhi had stated that when she was told that a first class Gold medallist handicapped person was denied a seat in Medical Science, as it was reserved for Scheduled Castes, she thought that the reservation had gone too far and Scheduled Castes could not continue their crutches for long. Why must the handicapped boy get the seat from Scheduled Castes/Scheduled Tribes quota only and not from the balance 77 ½% unreserved seats?
8.2.3 BK Nehru,
The then Governor of Jammu & Kashmir, while delivering CC Desai lecture at Administrative Staff College, Hyderabad on 26 Oct 83 had stated that the privileges have certainly reduced efficiency, competence and integrity to the disadvantage of the entire community. He further stated that, "It was hoped that within 10 years for which these reservations were granted, the political and administrative powers thus given to them would enable them to catch up." It is a sad reflection that a person of B K Nehru's eminence should make such irresponsible and contemptuous statements. 10 years limit was only for political reservations and not for services. Reservation in services has no time limit.
8.2.4 BD Sharma,
The then Governor of Madhya Pradesh, while talking to the Doctors' Club at Bhopal on 18 Dec 83, had said that providing reservation was a mistake. This was for 10 years, but we kept on extending the period and are continuing the mistake and because of votes nobody wants to abolish the reservations. He also said that the Scheduled Castes doctors would help reducing the population. This person has also betrayed his contempt for the Scheduled Castes and ignorance about the 10-year period, which does not apply to the service reservations.
8.2.5 NS Saksena,
UPSC member (now retired) has contributed two articles in the Times of India in Oct 83 and May 85. He stated that because of reservation many obtained promotions for which they do not have experience or expertise and that the reservations create unnecessary bickering and spoil relations with general category. He states that in MP the total reservation in services would mount to 80% for Scheduled Castes/Scheduled Tribes, Backward Classes - inclusive of 4% below poverty line, 3% freedom fighters, 3% ex-servicemen and 15% women leaving only 20% for general merit. Saksena is unnecessarily exaggerating and misleading. It must be noted that 80% reservation enumerated by Saksena covers 96% of the people leaving only 4% population to compete for 20% posts. In other words availability of the general merit posts are 500% of their share. Why is Saksena bickering?
8.2.6 YV Chandrachud,
Chief Justice of India (now retired) while giving opinion on reservations, had stated that government should take all steps to improve the conditions of Scheduled Castes/Scheduled Tribes within a short time and suggested that the reservations should be terminated at the end of 15-year period (i.e. by 2000 AD).
8.2.7 HK Paranjape,
An eminent personality, in his article in Times of India, has also suggested termination of reservations by 2000 AD.
8.2.8 Prof. BM Bambah,
President of the 71st Indian National Science Congress at Ranchi held on 3rd January ‘84, suggested setting up schools for the gifted. Similarly most of the Vice Chancellors of universities who were interviewed by UNI, were in favor of restricting the university education to the meritorious. They were also against reservations in university and technical education.
8.2.9 Supreme Court,
While dealing with Mandal Commission recommendations for Backward Classes' reservations, ruled, without making the most affected people, the Scheduled Castes/Scheduled Tribes a party that reservation in promotion of Scheduled Castes/Scheduled Tribes should end within 5 years, i.e., by 1997. This was a bolt from the blue and most damaging to the interests of the Scheduled Castes/Scheduled Tribes.
8.2.10 Justice Katju
Of Allahabad High Court, on 23 June 92, said, "The time has come when it must be boldly and clearly said that there can be no compromise in the field of science and technology."
8.2.11 Balram Jakhar, Chandrashekhar, Devilal
and a host of others have been suggesting (i) economic criteria, (ii) excluding the forward castes from Scheduled Castes, (iii) denying reservation beyond one generation of beneficiaries etc. etc. These were all suggestions to scuttle down the reservation policy. Even a highly esteemed friend of Scheduled Castes, Justice VR Krishna Iyer has said. "Even among the Scheduled Castes the upper layer snaps up the benefits and the promised constitutional renaissance remains a dope and unfulfilled hope." Surprisingly well known SC leaders like Jagjivan Ram and BP Maurya have also been under confusion. They wanted the cream of Scheduled Castes/Scheduled Tribes should desist from reserved posts. They also favoured a 10% reservation for poor Brahmins. They least realized that they were inflating the Brahmins' proportion, which was already excessive by adding 10% poor Brahmins. Again by SC/ST cream desisting from reserved posts, we would deny the services of these intellectuals to the society and encourage impoverishment, defeating the very purpose of reservations i.e. protection of the weaker section of society as a whole and not improvement in status of a few individuals.
9 Enemies of Reservations are very strong and formidable. They have queer, cunning and crafty ways of working. They have been instigating people and creating dissentions. They have been playing one caste against the other by pointing out that some particular castes have cornered reservation benefits beyond their share denying the other lesser brothers their legitimate share. The gullible SC/ST people fall in the mischievous trap of these forces and do a serious damage to the Ambedkarite movement and the unity of the society. It must be realized that caste-wise share has never been the purpose of reservation. Reservation is for Scheduled Castes collectively as a whole and not for individual castes or group of castes.
10 Consensus – Some people have been suggesting a national consensus on reservations. This is a very ridiculous suggestion. How can one expect that the hostile majority would ever vote for continuation of reservations?
11 Time Limit – applies only to political reservations. Time limit does not apply to reservations in services or in educational institutions and facilities. They are permanent and can come to end only under two conditions. One, when the Scheduled Castes/Scheduled Tribes develop to that stage and status that they could secure more services than their quota in general competition and feel that quota hinders them, they would themselves ask for abolition of reservations. Second, when the society is so developed and enlightened that caste system and chaturvarnya have disappeared and social justice and equality have been established, the reservation would become superfluous.
Some of our friends are of the view that once the quota of Scheduled Castes/Scheduled Tribes is fulfilled, reservations can be abolished. This is a very wrong and dangerous approach. Reservations enable the Scheduled Castes/Scheduled Tribes to get their due share in national affairs. This has to be so and they must continue perpetually. You cannot be satisfied with one time fulfillment of the quota.
12 Scope of SC/ST Reservations Art. 335 has a universal application. Only condition to be followed is that the appointments should be made consistently with the maintenance of efficiency. This should be followed honestly and sincerely but this was not done and a big fraud was played on the Scheduled Castes/Scheduled Tribes. While providing reservations for SCs/STs, a large chunk of appointments were excluded fraudulently from the purview of reservations. Such an action was not only unwarranted under Art. 335, but also contravened the spirit of the constitution. The government had no business to exclude from the purview of the reservations:
(i) Vacancies filled by transfer or deputation
(ii) Vacancies filled by promotion in certain posts.
(iii) Scientific and technical posts required for research etc.
(iv) Defence forces.
(v) Number of posts in the establishments of the President, PM, Ministry of Law, Planning Commission etc. etc.
12.1 The share of the Scheduled Castes/Scheduled Tribes has been denied continuously. Ways and means have been designed to deprive the Scheduled Castes/Scheduled Tribes of their legitimate share. Executive has always been averse to the Scheduled Castes/Scheduled Tribes. But surprisingly the Judiciary has also been inimical to the interests of the Scheduled Castes/Scheduled Tribes. It appears as if the executive and the judiciary have been working hand in hand to deprive the Scheduled Castes/Scheduled Tribes of their legitimate rights. It has been found that whenever the judiciary gave a judgment, which was in favour of Scheduled Castes/Scheduled Tribes, the executive would be reluctant to implement it, but whenever the judgments were adverse to the Scheduled Castes/Scheduled Tribes, the executive would show extra haste in issuing orders detrimental to the interests of the Scheduled Castes/Scheduled Tribes.
13 President of India and CJI Controversy
13.1 It would be relevant and pertinent to refer to the controversy between the President and the Chief Justice of India brought to light by India Today in their issue of January 25, 1999.
13.2 While giving his assent to the names on the file on November 28, 1998, the President of India Mr. Narayanan wrote, "I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with Constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like Scheduled Castes and Scheduled Tribes, who comprise 25% of the population, and women are given consideration." The President further noted, "Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work which the Supreme Court is required to handle."
13.3 In putting down his advice, the President, who is the Supreme Constitutional Authority and oath bound to preserve, protect and uphold the Constitution of India, has done his constitutional duty in pointing out to the Chief Justice of India, that it would be consonant with Constitutional principles and nation's social objectives, if Scheduled Castes/Scheduled Tribes and women are given due consideration. Instead of taking this advice as a directive, unnecessary controversy was raised. Rather than brushing aside the advice of the President it would have been in larger interest of social justice to examine ways and means to ensure that the Scheduled Castes/Scheduled Tribes do not go unrepresented at the Apex Court. The most poor, the most despised and discriminated, the most vulnerable, the most persecuted, the weakest and the most exploited Scheduled Castes/Scheduled Tribes who constitute 25% of the country's population cannot be denied representation at the Apex Court.
14 Efficiency and Merit
14.1 Art 335 speaks only of ”consistently with the maintenance of efficiency”. As long as the minimum qualifications prescribed for the post are satisfied the requirements of maintenance of efficiency are met. Art 335 does not call for top efficiency, super efficiency, top merit or super merit etc. The bogey of merit has been unnecessarily raised, resulting in denying the SC/ST their due share. Dr Ambedkar had stated before the Simon Commission that the disadvantages arising from class bias of the officers belonging to Brahmin and allied castes has outweighed all the advantages attending upon their efficiency and that on the whole they have done more harm than good. He feels that admixture of different communities in public services may perhaps import a small degree of inefficiency but it will supply a most valuable corrective to the evils of class bias.
14.2 It would be pertinent to quote that great jurist Justice VR Krishna Iyer on Merit and Suitability. In an article on Backward Classes and Reservation (1985), compiled in Dynamics of Reservation Policy edited by Mehta and Patel, Mr. Mahesh Dave writes: - Looked from another angle if merit also includes grit, determination, ability to fight odds and sympathy for the masses then the Backward classes are much more meritorious than the privileged merit mongers. Justice Krishna Iyer captures this last aspect of social merit in the following words in ABSK Sangh Railway case: “The fundamental question arises as to what is ‘merit’ and ‘suitability’. Elitists whose sympathies with the masses have dried up are, from the standards of the Indian people, least suitable to run Government and least meritorious to handle state business, if we envision a Service State in which the millions are the consumers. A sensitized heart and a vibrant head, tuned to the tears of the people, will speedily quicken the developmental needs of the country, including the rural stretches and slum squalor. Sincere dedication and intellectual integrity – these are some of the major components of ‘merit’ and ‘suitability’ – not degrees from Oxford or Cambridge, Harvard or Stanford or Simian. …Unfortunately, the very orientation of our selection process is distorted and those like the candidates from the SC and ST who, from their birth, have had a traumatic understanding of the conditions of agrestic India have, in one sense, more capability than those who have lived under affluent circumstances and are callous to the human lot of the sorrowing masses. Moreover our examination system makes memory the master of ‘merit’ and banishes creativity into exile”.
15 Supreme Court Judgment dated 10 Aug 1999 on Special provisions for SC/ST/OBC in Medical and Engineering Courses.
15.1 A number of parties/persons petitioned the Supreme Court against the GOs issued by UP and MP Govts. for admission of SC/ST/OBC to Medical / Engg. Courses. The petitioners were not at all affected by the GOs and therefore they did not have a case. However the Supreme Court accepted their petitions for consideration.
15.2 UP Govt. by their GO dated 11/10/94 had fixed 45% marks as cut off percentage as a minimum qualifying marks (MQM) in the Post Graduate Medical Entrance Examination (PGMEE) for general category candidates to the PG Courses in Medicine and 35% cut-off point for SC/ST/OBC. Thereafter by another GO dated 31/8/95 the Govt. of UP completely did away with the cut-off %age for reserved category candidates so that there was no MQM for PGMEE. Supreme Court by its judgment dated 19/2/97 struck down this GO on the ground that merit would be sacrificed altogether. UP Govt. thereafter issued another GO dated 2/4/97 under which cut off %age for reserved category was restored to 35%. However the UP Govt. moved an application that they should be given liberty to reduce cut off marks from 35% to 20%. Without waiting for a decision UP Govt. by Ordinance dated 15/6/97 reduced cut off marks to 20%. This was covered by UPPGME Reservation for SC/ST/OBC Act 1997. Lower % of MQM for SC/ST/OBC was for reserved seats numbering 21% for SC, 2% for ST and 27 % for OBC.
15.3 State of MP also reserved certain seats for SC/ST/OBC but did not fix any cut-off point for general as well as for reserved categories. Supreme Court advised the MP Govt. to fix up the MQM. MP Govt. by their GO dated 7/6/97 fixed MQM @ 20% for SC, 15% for ST, 40% for OBC.
15.4 Issue before the Supreme Court was whether any special provisions in the form of lower qualifying marks in the PGMEE could be prescribed for reserved category.
15.5 Supreme Court says, that special provisions for advancement of SC/ST/OBC mentioned in Art 15(4) is not a provision which is exclusive in character so that in looking after the advancement of those classes the State would be justified in ignoring altogether the advancement of the rest of the society. Supreme Court has not appreciated that in the UP and MP Govts.’ actions, merit is not being sacrificed altogether, neither is advancement of the rest of the society being ignored. These Govts. have not at all banned the admissions to the general category people. Hence forcing the Govts. to dilute their special provisions for advancement of the reserved category is against the interests of the SC/ST/OBC and also against the Constitution. The Supreme Court is limiting the authority of the States to make special provisions for advancement of the weaker sections of the society, by taking a hypothetical case and scaring the people. The hypothetical case was: - If the problem of BCs in a state is of such a magnitude that it requires the reservations of all seats in the higher educational institutions it would be open to the State to take that course, ignoring altogether the advancement of the rest of the society.
15.6 This can occur only under special and emergent circumstances viz. filling up backlog etc. But this can be only once in a while and that too due to the fact that the general category candidates have been usurping the share of the SC/ST/OBC. Under such circumstances the State will have to apply brakes on the advancement of the general category people and restore justice to the weaker sections. Hence the dilution of Art 15(4) is wrong and harmful to the interests of the SC/ST/OBC. The safeguards provided in the Constitution guarantee the legitimate share to the SC/ST etc. and all that is being done by the States is to secure their share to them. In doing so the States are not at all denying the share of the general category.
15.7 The maximum reservations or the special provisions for the SC/ST/OBC is in fact much less than their due and cannot exceed 50%. This caters to the 77% people of the country and 50% vacancies are left for 23% of the people which is too much in excess of their due. Why did the Court strike down the 68% reservations for the BCs has not been clarified. Prima facie it does not seem fair since 68% reservation was for 77% of the people leaving 32% for 23 % of the general category, which is too excessive. The Supreme Court states that the special provisions must be within reasonable limits. The Supreme Court has not quantified what is reasonable limit. Only a scare has been created by stating that the admissions were to Institutions of higher learning and involved professional and technical colleges. Of course that is so and the SC/ST/OBC are candidates for such higher courses only and not for craftsmen etc courses. Such remarks are contemptuous and insulting to the SC/ST/OBC and are objectionable. The Court says that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservations of seats in all technical, medical or engineering colleges or Institutions of that kind. The issue has been unnecessarily exaggerated. Wholesale reservations have never been sought. So why create this bogey? If it is necessary sometime, it has to be done and that does not warrant creation of unnecessary alarm.
15.8 The Supreme Court states that at the level of PhD, MD, or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations we have expended upon lose their potency where equality measured by matching excellence has more meaning and cannot be diluted much without grave risk. The Supreme Court says, “We cannot allow excellence to be compromised with any other considerations because that would be detrimental to the interests of the nation”. How it is detrimental has not been fully explained. The Supreme Court further says that – “To devalue merit at the summit is to temporise with the country’s development in the vital areas of professional expertise”. The Supreme Court continues, “the higher you go in the ladder of education, the lesser should be the reservation”.
15.9 When the States want to fulfill their obligations under 15(4), the Supreme Court has been becoming an impediment in their way. This goes against the constitutional provisions. The Court is leading to make Art 15(4) inoperative. The Supreme Court states “This court has repeatedly said that at the level of Super specialization there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest level of professional and educational training. …It would be detrimental to the national interest to have reservations at this stage. Opportunities for such training are few”. At another place the Supreme Court says that the facilities for training and education at this level are not available in abundance. These have to be made available to persons of high calibre. The Supreme Court states that at Specialty level special provisions should be minimal. They say that there cannot, however, be any such special provisions at the level of super specialties.
15.10 The Supreme Court sees no logic or rationale for the difference in MQM between the reserved category and general category to be larger than the differential in MQM for MBBS course. The logic and rationale is that the Govts are not getting adequate number of the reserved candidates and in order to fulfill their responsibility under Art 15(4) they have to widen their field of selection. The Govt. had fixed 20% as MQM for SC/ST for PGMEE to facilitate availability of adequate number of candidates to fulfill their quota. At lower levels i.e. for MBBS course, adequate number of reserved category candidates would be available with 35% cut off point, but for PG level the cut-off point will have to be still lower. As a matter of fact, the States of UP and MP were right in not fixing any cut-off point for the reserved category. The MQM or the cut-off points have no logic or rationale. How has 45% been fixed as MQM for general category? If we have to select n number of students for admission to PG course and we fall short of that number even with 45% MQM we will have to go below 45% to fill up the requirement. We cannot allow the facility set up to cater for n number to be starved of students. Similarly to fill up the quota for SC/ST/OBC we have to select the best from that category to the extent that their quota is filled fully. There cannot be MQM for them. If by fixing up 20% MQM, adequate candidates do not get qualified then the %age has to be reduced and go even down to the lowest level with 0% marks since the candidate has already passed MBBS and is eligible for admission to PG course. Unnecessary confusion is being created by saying that merit would suffer and it would be detrimental to the national interest.
15.11 What is national interest? Is the interest of the 77% of India’s population not the national interest? Is only the interest of a few so-called meritorious individuals a national interest? Why should the Supreme Court insist that the disparity in qualifying marks must be minimal at the PG level i.e. the differential should be lesser than 10% so that it would be possible for the reserved category to come up to certain level of excellence when they qualify in the speciality of their choice. They say that it is in public interest that they have this level of excellence. When the students pass the PG course, it goes without saying that, they would be qualified to be PG doctors. Which other level of excellence is expected from the reserved category if no such level is prescribed for passing the PG exams. Why should the reserved category be deprived of their share on the mere imagination that they may not be able to make it if disparity is big and that they may not achieve excellence? It is not right to deprive the reserved category of their share under any pretext. The deprived share is automatically made available to accommodate the rejects of the general category candidates who could not be meritorious enough to come within their share. What sort of merit is ensured when the cut-off point for general category is 45%, which is the lowest of the 2nd class? If you can go to the rock bottom of 2nd class and expect that you could get meritorious people, why can’t you accept that the reserved category people will be suitable if differential exceeds 10%? The Supreme Court has ruled that if the differential in MQM for reserved and general candidates exceeds 10% that would be contrary to the mandate of Art 15(4). This Article empowers the state to make any special provisions for the advancement of SC/ST etc and the question of limiting differential in MQM does not arise.
15.12 The Supreme Court states that a pass mark is not a guarantee of excellence. There is a great deal of difference between a person who qualifies with the minimum passing marks and a person who qualifies with high marks. If excellence is to be promoted at the PG level the candidates qualifying should be able to secure good marks while qualifying. The situation that arises out of this approach of the Supreme Court is, that they have no objection if the general category people get qualified with the minimum passing marks but the reserved category would be denied admission, unless it is guaranteed that they pass with high %age. Minimum passing marks in case of the reserved category is not adequate for the Supreme Court. On this excuse they are denying them a level playing field with even chances for entry and opportunity. This is a definite discrimination. Does it not amount to the highest order of injustice to the reserved category?
15.13 The Supreme Court states that Art. 15(4) and the spirit of reason, which permeates it, do not permit lowering of MQM at the PG level to 20% for the reserved category as against 45% for the general category candidates. The Supreme Court says that Indian Medical Council (IMC) has permitted lowering of MQM to 35% for the reserved category as against 45% for general category. It further states that the marks cannot be lowered further for admission to PG Medical courses; especially when at the super speciality level it is the unanimous view of all the judgments of this court that there should be no reservation. Must we accept Dr Goebbels? Must we accept that a thing constantly repeated must be true and sacrosanct? It would be necessary to know for the benefit of “We, the people of India” (1) Who all contributed to this unanimous view, (2) How many of the judges were belonging to the SC/ST/OBC and (3) How many were committed to the advancement of the SC/ST/OBC and to protect their interests. By striking out any possibility of reservations for SC/ST/OBC at the super speciality level are they not contravening the constitutional provisions, which empowers the state to make special provisions for advancement of the SC/ST/OBC? Art 15(4) and Art 46 mention that the State shall promote with special care the educational and economic interests of ….SC/ST and shall protect them from social injustice and all forms of exploitation. By denying them their due and legitimate share at the highest level, on whatever excuse, the Supreme Court is doing a great harm to the SC/ST/OBC interests. How can the Supreme Court overrule Articles 15(4) and 46? The Supreme Court says that at the level of admission to the super speciality courses, no special provisions are permissible, they being contrary to the national interest. Merit alone can be basis of selection. This is against Art 15(4). The High Court at Chandigarh in their judgment had stated that there could be reservations of seats for SC/ST at PG levels or doctoral levels in medicine and that such reservations would not lead to a loss of efficiency and are permissible under Art 15(4). In the admission notice No. 15/90 issued in the Indian Express of 25/11/90, 6 seats for the super speciality courses of DM/MCH were kept reserved for the SC/ST candidates. KL Narasimhan & Anr challenged this notice.
15.14 In the case of Jagdish Saran & ors v/s Union of India the Supreme Court observed that at the highest scales of speciality, the best skill or talent must be handpicked by selection according to capability. Losing a potential great scientist or technologist would be a national loss. That is why the court ordered that the higher the level of education, the lesser should be the reservation.
15.15 The Supreme Court states that undoubtedly, protective discrimination in favour of BC including SC/ST is as much in the interest of the society as the protected group. At the same time, there may be other national interests such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests.
15.16 On the one hand the Supreme Court says that special provisions must strike a reasonable balance between these diverse national interests. But on the other hand they rule out this reasonable balance and go ahead to state that at the highest level of medical education, excellence cannot be compromised to the detriment of the nation. Admissions to the highest medical courses in the country at the super speciality levels, where even the facilities for training are limited, must be given only on the basis of competitive merit. There can be no relaxation at this level.
15.17 The Supreme Court states, “Even otherwise under Art 15(4) the special provisions which are made at this level of education have to be consistent with the national interest in promoting the highest levels of efficiency, skill and knowledge amongst the best in the country so that they can contribute to the national progress and enhance the prestige of the nation.” This statement of the Supreme Court aims at denying the SC/ST/OBC their share under the excuse of promoting the highest levels of efficiency amongst the best in the country so that they can contribute to national progress and enhance the prestige of the nation. Art 15(4) empowers the state to make special provisions for the advancement of the SC/ST/OBC. It does not speak of the levels of efficiency. But the Supreme Court prescribes its own conditions, which negates and nullifies the powers of the State. Reservation for SC/ST/OBC in super speciality which has been ruled out by the Supreme Court seems to be under extreme fervour of patriotism, but it should not be forgotten that even if the SC/ST/OBC are given their full quota of 50%, that still leaves 50% for the general category. Can these 50% from the general category; the most meritorious of the country not produce a great scientist or technologist? Why do they have to depend upon the seats deprived to the SC/ST/OBC and made available to the general category, for searching a potential talent of a great scientist and technologist in the making?
15.18 The Supreme Court says that compromising excellence will be detrimental to the interests of the nation. How will that be detrimental? Is it expected that the reserved category people will sabotage and destroy the national interests? The nation belongs to SC/ST/OBC more than anyone else. They have maximum stakes in this country. As a matter of fact, the top scientists and technologists of this country migrate to USA etc. and they hardly serve India. How is that in the best interests of the country? While talking about the enhancement of the prestige of the nation, one needs to appreciate what exactly prestige means. Different people have different values. To some, Pokhran explosions might be a great prestige-building act. But for many it was a very expensive blunder involving billions of rupees, which a poor country like India could not afford. They have shattered India’s economy harming the poor. There is nothing to be proud of. A peace loving country, the land of the Buddha, cannot indulge in such experiments. When we talk about disarmament how can we build up and explode nuclear devices. And our great scientists have helped in this matter. What use is their talent? What use is the Nobel Prize of some people unless their actions contribute to the welfare of the masses? Amartya Sen was very unhappy at our nuclear explosions. Instead he laid a great importance on education, poverty alleviation, health etc.
15.19 Deliberating further on the national prestige, for the sake of which it is proposed to deprive the SC/ST/OBC their share, it would be pertinent to state that conquering Mt, Everest, space flight by Rakesh Sharma, winning World Cup cricket matches, tennis, hockey etc will bring laurels and prestige to India. But how much can these raise the level of the common masses? Unless our great scientists and technologists are oriented to the welfare of the masses they will be a national loss. It must not be forgotten that expert knowledge or top merit alone are not enough. These will have to be supplemented with emotional intelligence. IQ and technical skills are important, but emotional intelligence is the sine qua non of leadership. As Peter Drucker, a world-renowned management expert, says- the knowledge workers have intellectual arrogance causing disabling ignorance. Likewise Dr. MB Athreya, the Management Guru, as he is called, stated, in a seminar at Delhi on September 20, 1999, that a manager need not be a subject expert but he must be a value defender. Accordingly it must be appreciated that our top experts will not be sufficiently useful to the society unless they develop compassion for the under privileged and a balanced view of life and society. These facets are already ingrained in the reserved category.
15.20 Therefore it is wrong to deny their share to the SC/ST/OBC at even the highest level. Because it is their constitutional right and nobody can deny that under any circumstances. The earlier the corrective actions are taken to do justice to more than 75% of the population of India the better.
15.21 A few days ago the Vice President of India Mr. Krishan Kant during his visit to Thailand had assured the king that it would be possible to train in India his daughter. If she is a candidate for super speciality, can she be rejected unless she comes with equal merit? This will not be done. Extra attention will have to be paid and she will have to be trained.
16 So no excuses should be advanced to deprive the reserved category candidates.
17 Political and Social Democracy
17.1 On 25 Nov 1949, while presenting the Constitution Dr Ambedkar, in his famous and greatly lauded speech in the Constituent Assembly asked, “How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we shall do so only by putting our political democracy in peril. We must make our political democracy a social democracy as well at the earliest or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”
17.2 It must be recalled that at the time of Independence the country was divided into India and Pakistan. There was a powerful voice for creation of “Achhutostan”. But Dr Ambedkar, a great patriot and democrat opposed this and cautioned patience and further vivisection of the country was nipped in the bud. India owes a debt to Dr Ambedkar and his followers for having agreed to the rule of the Hindus and their associates subject to certain safeguards. They could have alternatively said in the words of Carson, leader of Ulster to Redmond, leader of Irish Nationalists, “Damn your safeguards, we don’t want to be ruled by you.” Dr Ambedkar was convinced that only those who belong to the servile class could be trusted to protect the interests of that class. This consideration, he said, was so important that the principle of efficiency cannot be allowed to altogether override it.
17.3 But the SCs/STs have been badly deceived. Their Constitutional safeguards of reservations have been opposed from the very beginning. On some excuse or the other, the Executive and the Judiciary have been denying them their due rights.
17.4 It must be understood that the SC/ST, the worst sufferers and the most vulnerable sections of the society are the original inhabitants of this land and have the maximum stakes in the unity, integrity and well being of India. They constitute 25% of India’s population and, therefore, they must own 25% of India’s assets, 25% of National wealth, 25% land, every 4th President, every 4th Prime Minister, every 4th Chief Justice of India, 25% of all appointments within the country as well as abroad must be from the SC/ST community.
Let the so far exploited, deprived, despised, ill treated people not be taken for granted any more. No one should dare to encroach upon their constitutional rights. The society, the executive, the Judiciary must heed the warning of Dr Ambedkar as referred in para 17.1.