A Desperate SOS Call from CJI for achhe din (अच्छे दिन) of Judiciary and Litigants

An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient numbers of Judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. It is well known that justice delayed is justice denied. Time and again the inadequacy in the number of Judges has adversely been commented upon. Emotional and tearful appeal of the CJI TS Thakur to the Central and State Governments to augment the judicial strength while addressing a joint conference of chief ministers and chief justices of high courts, with Prime Minister Modi and Union Law Minister D V Sadananda Gowda present on the dais has again brought to the fore the issue of acute inadequacy of Judges' strength and resultant mounting pendency of cases leading to a virtual "DOCKET EXPLOSION". However, in all probabilities, the impassioned appeal is likely to fall on deaf ears seeing the lukewarm responses of Governments to the recommendations/directions made/issued in the past qua the issue of inadequacy of judicial strength in India as narrated below:

1.     120th Law Commission Report in 1987 had recommended that the judge –population ratio be increased to at least 50 judges per million population . However, 30 years  later, the ratio remains just 15 judges per million in a Country which has swelled by 25 crore  in population in last 3 decades. . Indian Judge on an average decides 2600 cases every year compared to 81 cases by an American judge. Now in 2016,  a strength of 18000 judges is grappling with a pendency of 3 crores cases although way back in the year 1987 for a lesser population/lesser cases the LCI report had recommended the Judges' strength of 40000.

2.     Shri Pranab Mukherjee Ji led  Parliamentary Standing Committee 85th report, submitted in February, 2002, to Parliament, had recommended that there should be an increase in the number of Judges. The said committee had noted the Judge-population ratio in different countries and adversely commented on the Judge-population ratio of 10.5 Judges per 10 lakh people in India. The report recommends the      acceptance, in the first instance, of increasing the Judge strength to 50 Judges per 10 lakh people as was recommended by the 120th Law Commission Report.

3.     In  All India Judges Association And  vs Union Of India (Uoi) And Ors. (8 February, 2002 ), the Hon’ble Supreme Court of India directed  increase, in the first instance, in the Judge strength from the existing ratio of 10.5 (or 13)  per 10 lakhs people to 50 Judges for 10 lakh people. The Court had directed  that the existing vacancies in the subordinate Court at all levels should be filled, if possible, latest by 31st March, 2003, in all the States.  The increase in the Judge strength to 50 Judges per 10 lakh people should be affected and implemented with the filling up of the posts in phased manner to be      determined and directed by the Union Ministry of Law, but this process should be completed and the increased vacancies and posts filled within a period of five years. The Court further opined that perhaps increasing the Judge strength by 10 per 10 lakh people every year could be one of the methods which may be adopted thereby completing the first stage within five years before embarking on further increase if necessary.

4.     In Malik Mazhar Sultan & Anr vs U.P. Public Service Commission ( 3 April, 2006) the Supreme Court  inter alia  held that  non-filling of vacancies for long time, deprives the people of the services of the Judicial Officers. This is one of the reasons of huge pendency of cases in the courts. It is absolutely      necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the Regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient number of vacancies does not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All State Governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be operational.
5. MALIK MAZHAR SULTAN AND ANR VERSUS U.P. PUBLIC SERVICE COMMISSION & ORS. (CIVIL APPEAL NO.1867 OF 2006)DOD 04/01/2007 
  http://courtnic.nic.in/supremecourt/temp/186720065412007p.txt
DIRECTIONS: For filling of  vacancies  in  the cadre of  District  Judge in respect of
 (a)  twenty   five   per   cent   vacancies   to   be   filled   by   direct recruitment from the Bar; and
(b)   twenty   five   per   cent   by   promotion   through   limited competitive   examination   of  
Civil   Judges   (Senior   Division)   not having less than five years of qualifying service. For
filling of  vacancies  in  the cadre of  District  Judge in  respect of  fifty  per cent   vacancies  to 
be  filled  by promotion. For   filling   of   vacancies   in   the   cadre   of   Civil   Judge (Senior
Division) to be filled by promotion. For   appointment   to   the   posts   of   Civil   Judge   (Junior
Division) by direct recruitment.

POST SCRIPT: 16/1/2017
 Short of 5,000 judges,2.81 cr cases pending

Lower courts need 15,000 more appointments: Report

http://www.tribuneindia.com/news/nation/short-of-5-000-judges-2-81-cr-cases-pending/350969.html

A whopping 2.8 crore cases are pending in district courts across the country as these face shortage of nearly 5,000 judicial officers.

The situation has led to suggestions in two Supreme Court reports to increase the judicial manpower “manifold” — at least seven times — to overcome the crisis by appointing around 15,000 more judges in the coming few years.

The suggestions and some sharp remarks came out in the reports issued by the Supreme Court — “Indian Judiciary Annual Report 2015-2016” and “Subordinate Courts of India: A Report on Access to Justice 2016” — which also highlighted that nearly 15,000 more judges would be required in next three year to overcome this critical situation.

Data showed that district courts across the country were grappling with a backlog of 2,81,25,066 civil and criminal cases between July 1, 2015 and June 30, 2016. But a large number of matters, 1,89,04,222, were also disposed of during the period.

A key reason for high pendency is the shortage of judges in subordinate courts, which is “a cause for concern”, as 4,954 posts of judge are vacant against the sanctioned strength of 21,324 judicial officers, the report on subordinate courts said. “Based on the study and keeping in mind the future growth in institution of cases, it is found that the present judge strength is insufficient to deal with a huge figure of pendency of cases, which is a cause of concern. In the backdrop of the tussle between the judiciary and the executive over appointments of judges and infrastructure, the report came out with sharp remarks over the failure of the government in dealing with these issues. “The immediate requirement itself shows that enough has not been done to increase the judges’ strength of the subordinate judiciary,” it said. The figures compiled in the annual report till June 30 last year show the district courts in Gujarat, Bihar and Uttar Pradesh were the worst affected as they were short of 794, 792 and 624 judges, respectively.

POST SCRIPT: 18/1/2017

SC forms panel on recruitment of judges in lower judiciary

http://www.livemint.com/Politics/pVXHoadzL8Q00z5CNsMqWP/SC-forms-panel-on-recruitment-of-judges-in-lower-judiciary.html

The Supreme Court says the panel will look into the issue of bringing uniformity in the recruitment process of judicial officers in the lower judiciary across the country. The Supreme Court has set up a committee of judges to look into the issue of bringing uniformity in the recruitment process of judicial officers in the lower judiciary across the country. A bench headed by chief justice J.S. Khehar said the committee would deal with issues like fixing the date on which advertisements for filling up the vacancies would be issued, dates of examination, interviews, issuance of the appointment letter and the joining date. Senior advocate Vijay Hansaria, who is amicus curiae in the matter, pointed out to the court that the matter relating to appointment of judges in subordinate judiciary has not been listed for hearing for quite some time and there was a need to bring uniformity in the selection process. He said a similar schedule was drawn up by the apex court by its judgment on 4 January 2007, but it has not been compiled by the states including the high courts in letter and spirit. The top court by its 4 January 2007 judgment had said that the process for the recruitment of judicial officer in the subordinated judiciary including for the posts of district judges would commence on 31 March of a calendar year and the entire process would concluded on 31 October, the last date of joining for successful candidates.

POST SCRIPT:

SUO MOTU WRIT PETITION(C) No. 1/2017

 IN RE : CENTRAL SELECTION MECHANISM FOR SUBORDINATE JUDICIARY Date : 09/05/2017

 This petition was called on for hearing today. CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE A.M. KHANWILKAR For the Parties UOI Mr. Ranjit Kumar, SG Ms. Binu Tamta, Adv. Mr. R. Bala, Adv. for Mr. M.K. Maroria, AOR State of Karnataka Mr. V. N. Raghupathy, Adv. Mr. Chinmoy Deshpande, Adv. State of Jharkhand Mr. Ajit Kr. Sinha, Sr. Adv. Mr. Gopal prasad, Adv. NCT of Delhi Ms. Rashmi Malhotra, Adv. for Mr. B.K. Prasad, AOR State of HP Mr. Varinder Kr. Sharma, Adv. State of Jharkhand Mr. Mohd. Waquas, Adv. Mr. Aditya Pratap Singh, Adv. for Mr. Tapesh Kumar Singh, AOR State of Haryana Mr. Anil Grover, AAG Ms. Nupur Singhal, Adv. Mr. Sanjay Kumar Visen, AOR Govt. of Puducherry Mr. V.G. Pragasam, Adv. Mr. Prabu Ramasubramanian, Adv. State of Odisha Mr. Shibasis Misra, Adv. Ms. Sylona Mohapatra, Adv. UT of Andaman & Ms. G. Indira, Adv. Nicobar 2 State of Arunachal Mr. Anil Shrivastav, Adv. Pradesh Mr. Ritu Raj, Adv. State of Gujarat Ms. Hemantika Wahi, Adv. Mr. A.P. Mayee, Adv. Mr. A. Selvin Raja, Adv. Ms. Maha Lakshmi, Adv. for Mr. M.Yogesh Kanna, AOR Mr. Krishnanand Pandeya, Adv. UPON hearing the counsel the Court made the following O R D E R Union of India, as also, all the State Governments (including the Union Territories), have been duly served through the standing counsel nominated for this Court. Liberty is granted to the Union of India, as also, all the State Governments (including the Union Territories) to file their response and suggestions, if they are so advised. Response and suggestions by way of affidavits be filed, on or before 30.06.2017. Post for further consideration on 10.07.2017 at 3: 00 p.m. (Renuka Sadana) (Parveen Kumar) Assistant Registrar AR-cum-PS

S.M.W.(C)No.1 of 2017 IN RE : CENTRAL SELECTION MECHANISM FOR SUBORDINATE JUDICIARY VERSUS UNION OF INDIA & ORS. Respondent(s) Date : 04-08-2017 This petition was called on for hearing today

UPON hearing the counsel the Court made the following O R D E R 1. Mr. Arvind P. Datar, learned Senior Counsel, in his capacity as an Amicus Curiae, on our asking, has prepared a Concept Note with reference to the proposed centralization of the District Judiciary Recruitment Examination. 2. We are of the view, that the aforesaid Concept Note should be circulated to all State Governments and High Courts. Accordingly, the Registry of this Court is 3 directed to forward the Concept Note to Registrar Generals of all High Courts, and Secretaries in the Ministry of Law of all State Governments. The needful be done within two weeks from today, immediately by e-mail, to be followed by furnishing hard copies. The concept note may also be posted on the Supreme Court Website, so as to enable the High Courts and Secretaries to the State Governments, to make suggestions. 3. Suggestions, if any, shall be forwarded by the respective State Governments and the Registrar Generals of the High Courts to this Courts, so as to reach this Court on or before 16.08.2017 4. Post for hearing on 18.8.2017, at 2.00 p.m. (Sarita Purohit) (Renuka Sadana) COURT MASTER Assistant Registrar 

ALSO READ "The mounting unfilled vacancies in judiciary also negates constitutional mandate" @

 http://rajkhushiniti.blogspot.in/2011/07/mounting-unfilled-vacancies-in.html

RESERVATION AT GUN POINT: VIOLENCE PAYS

The current upheavals in perennially simmering cauldron of clamor for reservation /quotas bears out that the quota based reservation policy, a kind of affirmative action envisaged as a tool of egalitarianism, has now become a “prized booty”. It is begotten out of amalgamate of “brute majority and/or brutal muscle power, blood-shed, vandalism, tacit political cum administrative patronage and above the all, rampant political opportunism”.  We saw Gujjars in Rajasthan and Jats in Haryana reaping the dividends of unprecedented violence and vandalism unleashed by them for pressing-up their demand for reservation by way of  grant of quotas to them by obliging Governments through Legislative Laws.  The fierce Patel agitation of 2015 compelled the Gujarat government to make provisions for scholarships, free coaching and relaxation in age limits and in the number of attempts for government jobs for the members of economically backward upper-castes. Reportedly, in the wake of resurrected Patel agitation 2016, now the Gujarat Government is seriously mulling over inducting 5-6% quota for economically backward persons belonging to general category. Be that as it may, the Hon’ble Apex Court  has unequivocally held that “in every case where the State decides to provide for reservation it has to collect quantifiable data pursuant to a scientific survey showing backwardness of the caste/class to such an extent that people belonging to such caste/class are not able to compete in open/general category and thereby resultant inadequacy of representation of that caste/class in public employment”. Thus, need of hour is to conduct such  survey of all castes already in the BC pool, and other castes seeking inclusion therein and then retain/induct accordingly only those castes which strictly satisfy the above test of the Supreme Court.   Moreover, no creamy layer criteria (rule of exclusion) in SC/STs and a very feeble & narrow such criteria in OBCs have not allowed the benefits of reservation to percolate down to actually distressed and poor sections of  reserved castes resulting into perpetuation of overall backwardness in such castes.  Unless the things are set right as above, skeptics of quotas may not be wrong in holding a view that present form of affirmative action in practice in our Country is a politically sponsored, constitutionally enabled and judicially sanctioned fraud with masses. Hence, it has become imperative to review the entire policy and efficacy of quotas in the present form. 

Conundrum of Mandal Commission, Jat Reservation, Dy PM’s Resignation, Justice Gurnam Singh Commission, Ramji Lal Commission and simmering Cauldron of Reservation in Haryana

THE TRIBUNE, APRIL 11, 2016
Facts on Jats

MG Devasahayam's article “Lopsided development & Haryana cauldron” (March 29) highlights the skewed “development model” and the plight of the peasantry in Haryana. However, it has many factual errors. Firstly, only two subgroups — “Chillon Jats and Gutka Jats” — constituting a miniscule segment of Jats in Haryana were identified as backward by the Mandal Commission Report. But he purports to say that the entire Jat caste was identified so. Secondly, Devi Lal had resigned from the VP Singh government not because of being at loggerheads with him on the issue of Jat reservation, but due to a host of other issues, including that concerning his son OP Chutala. Thirdly, the Justice Gurnam Singh Commission was instituted by the then government (although working under the tutelage of Devi Lal) to identify the other backward castes/classes in Haryana for reservation in Haryana only. The Centre/Deputy Prime Minister per se had no role to play in it. Fourthly, based on the Justice Gurnam Singh Commission Report, Hukam Singh-led then Haryana Government had declared Ahir, Gujjar, Jat, Sikh, Jat, Bisnoi, Saini, Ror, Tyagi and Rajput as backward castes. But the next government of Bhajan Lal, following the Supreme Court order in the Indira Sawhney case (1992), constituted another BC Commission in 1993 under Ramji Lal and based on its report  dropped out Jat, Jat Sikh, Bisnoi, Ror, Tyagi and Rajput from the list of OBCs. 

RAJENDER GOYAL, Bahadurgarh

Full piece entitled “Factually incorrect” reads thus:

Factually incorrect

I read M.G. Devasahayam’s Article “Lopsided development & Haryana cauldron” (THE TRIBUNE, 29^th  March, 2016).

(Available at:  http://www.tribuneindia.com/news/comment/lopsided-development-haryana-cauldron/214734.html ). Learned author has aptly highlighted about the skewed “development model” and consequent plight of peasantry community, amongst others, in Haryana. However, it is replete with many factual inaccuracies in certain material aspects. Firstly only two subgroups namely “Chillon Jats and Gutka Jats[1]” constituting a miniscule segment of Jat caste in Haryana were identified as backward  in the Mandal Commission Report although he purports to say that entire Jat caste in Haryana was identified so. Secondly Ch. Devi Lal Ji had resigned from VP Singh Government not because of being at loggerhead with him on the issue of Jat reservation, but due to a host of other issues, including that concerning his son Sh. OP Chautala.[2]  In fact, Late Ch. Devi Lal and Chautalas consistently frowned upon caste based reservations and strongly advocated for reservations based on economic criteria before a sudden volte-face taken during Jat Reservation agitation of February 2016. Moreover, around the time Mandal Commission Report was implemented (and even for a quite long time thereafter), Jat caste in Haryana used to perniciously look down upon reservations. Thirdly the Justice Gurnam Singh Commission was, however, instituted by the then Government of Haryana  led by Sh. OP Chutala (although working under the tutelage of Ch. Devi Lal) in 1990 to identify the other backward castes/classes in Haryana for reservation in the State of Haryana only. The Central Govt/Dy Prime Minister of India per se had no role to play in it. Fourthly, based on Justice Gurnam Singh Commission Report, Sh. Hukam Singh led the then Haryana Government had notified Ahir, Gujjar, Jat, Sikh, Jat, Bisnoi, Saini, Ror, Tyagi and Rajput as backward castes (although Justice Gurnam Singh Commission had not identified Rajputs as backward). But next Govt. led by Ch. Bhajan Lal did not implement the said notification and in the guise of following Supreme Court order in the Indira Sawhney case (1992) constituted another Backward Class Commission in 1993 headed by Sh. Ramji Lal and based on its report the Jat, Jat Sikh, Bisnoi, Ror, Tyagi and Rajputs were eventually dropped out. The record may be put straight accordingly.

---

[1].Gutka (गुटका), a small sect, some 60 souls in number, of the Bhall section of the Jats found in Hadiara, a village in Lahore. They are descendants of one Gurbakhsh Singh, a Sikh Jat who earned the nickname of Gutka (" a collection of all that is bad ") by his thieving propensities not long before the British conquest of the Punjab. He owned little land, and poverty compelled his descendants to continue his career of crime.

See at: http://www.jatland.com/home/A_glossary_of_the_Tribes_and_Castes_of_the_Punjab_and_North-West_Frontier_Province_By_H.A._Rose_Vol_II/G

It may also be noted that no such subgroup by the name of “Chillon Jats” in the Jat caste in Haryana exists to the best of the knowledge of the present author.

[2]. See at: https://books.google.co.in/books?id=HY7cAAAAQBAJ&pg=PT299&lpg=PT299&dq=devi+lal+resigned+from+the+post+of+deputy+prime+ministership&source=bl&ots=ds6HXOZJA5&sig=pXUApYjw9xXmndnfFtiqAJjogdI&hl=en&sa=X&ved=0ahUKEwiwhMXx6-XLAhXLGI4KHS1yB0AQ6AEIJTAC#v=onepage&q=devi%20lal%20resigned%20from%20the%20post%20of%20deputy%20prime%20ministership&f=false

Also see at: 

https://books.google.co.in/books?id=0VjYS-2SA_sC&pg=PA193&lpg=PA193&dq=devi+lal+resigned+from+the+post+of+deputy+prime+ministership&source=bl&ots=62CIRhTCA7&sig=s_cYNLEvBGGId42GHE7j21eDatU&hl=en&sa=X&ved=0ahUKEwiwhMXx6-XLAhXLGI4KHS1yB0AQ6AEIOjAG#v=onepage&q=devi%20lal%20resigned%20from%20the%20post%20of%20deputy%20prime%20ministership&f=false

APPEASEMENT in the guise of RESERVATION

The Haryana Government is going to town on the recently passed Reservation Bill ie Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Bill, 2016 paving the way for quotas of 50% in Group A and Group B services, and of 67% in Group C and Group D services and admission in Government/Government aided Educational Institutions. Certain sections of beneficiaries are also very upbeat about it. However, it all seems very premature and uncalled for owing to highly precarious fate of the said desperate piece of appeasement disguised as Reservation Bill at the altar of impending judicial scrutiny in view of discussions held here-in-after.  The Hon’ble Supreme Court of India has repeatedly held that “in every case where the State decides to provide for reservation it has to collect quantifiable data pursuant to a scientific survey showing backwardness of the caste/class to such an extent that people belonging to such caste/class are not able to compete in open/general category and resultant inadequacy of representation of that caste/class in public employment”  ( See Indra Sawhney etc  vs UOI, 1992 ; M. Nagaraj and others vs UOI and others, 2006;  Ram Singh & others vs UOI , 2015; Ram Kumar Gijroya vs Delhi Subordinate Services Selection Board & Anr 2016) .  Moreover, Supreme Court in  I.R. Coelho case (2007) unequivocally held that “9^th Schedule does not provide a blanket immunity to a  law that abrogates or abridges Fundamental Rights . Such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article14, Article 19 of the Constitution and the principles underlying there under and such law may be invalidated in exercise of judicial review power of the Court in appropriate cases”. The Supreme Court has also held that “Reservation in employment in services, and admission in educational institutes shall not ordinarily exceed 50% of the appointments or posts or seats barring certain extra-ordinary situations (See Indra Sawhney 1992, Ashoka Kumar Thakur  2008). 

Therefore, the State is free to exercise its discretion of providing for reservation to certain caste(s)/class(es) [in addiition to SC/STs] subject to Constitutional and Supreme Court's laid down limitations, namely, the ceiling-limit of 50%; the principle of creamy layer; the compelling reasons, namely, backwardness, inadequacy of representation, and the overall administrative efficiency.

The only contemporaneous data of backwardness available in Haryana is in the form of Justice KC Gupta Report 2012 which was found flawed and unworthy of being acceptable by the Supreme Court  in the  case of Ram Singh & Ors vs Union of India 2015 (quashing the Central OBC Jat Reservation notification and following which Chandigarh High Court stayed the Special Backward Classes (SBCs) reservation notification in Haryana). Thus, it would be apt to conduct such survey of all castes already in the BC pool, and other castes seeking inclusion therein and then retain/include only those castes which satisfy the aforesaid test of the Supreme Court. Distressed farmers stuck in the whirlpool of agrarian crisis are at the centre of current reservation agitation in Haryana. But the existing creamy layer criteria wrt BCs are too narrow & ineffective to allow any substantial benefit of reservation to percolate down to the said most needy segment of society. Induction of some creamy layer criteria wrt SC/STs would also be apt.

 Hence, it is a fit case for the Hon’ble SC/HC to take suo moto cognizance of the matter to obviate the travesty of rule of law and to preserve the majesty of judiciary.  

PATRIOTIC vs UNPATRIOTIC DEBATE

THE TRIBUNE, NEW DELHI, March 28, 2016

http://epaper.tribuneindia.com/c/9344409

Patriotic vs unpatriotic

There are two intimate friends: A & B. A fondly, proudly and vociferously chants "Bharat Mata ki jai, Vande Mataram, Jan gan man." B may not chant what A chants, but nevertheless he/she with equal fondness and pride chants "Saare jahan se achha Hindustan hamara, Madar-e-watan zindabad, Maa tujhe salaam, Jai Hind, Hindustan zindabad". What is the tiff? Where is the question of more or less patriotism or need for triggering off a hysterical debate of patriotic vs unpatriotic? Both have their own way of expressing their love for India. Steer clear of sectarian forces based on religion, region, caste etc and be a calm, happy, progressive and proud Indian.

RAJENDER GOYAL, Bahadurgarh                  

FULL PIECE READS THUS:

There are two intimate friends namely A & B. A fondly, proudly and vociferously chants “Bharat Mata Ki Jai, Vande Mataram, Jan Gan Man Adhinayak Jay Ho Bharat Bhagy Vidhata”. B may not chant what A chants but nevertheless B, with equal fondness, pride and vociferousness, chants “Sare Jahan Se Acha Hindustan Hamara, Madar e-Watan Zindabad, Maa Tujhe Salaam, Jai Hind, Hindustan Zindabad”.  What is the fuss? Where is the tiff? Where is the question of more or less patriotism or need for triggering off a hysterical debate of Patriotic vs Unpatriotic? Both have their own way of expressing their reverence, love and gratitude for their MOTHER LAND & GREAT NATION  in a secular, pluralistic, democratic Republic INDIA. However, A & B unequivocally hold that their freedom of  speech, expression,  conscience, and of free profession, practice and propagation of religion  can never be used/displayed/manifested/expressed  in a way that it will end up hurting the sentiments of either of them. They also say that it is ripe time to steer clear of sectarian & divisive forces of all hue and colour (based on religion, region, caste etc) and stay calm, happy, progressive and PROUD INDIAN.

JAI HIND, JAI BHARAT, HINDUSTAN ZINDABAD, LONG LIVE INDIA, BHARAT MATA KI JAI, VANDE MATARAM, INQLAB ZINDABAD

CONSTITUTIONAL, STAUTORY AND JUDICIAL  MATRIX:

1.      CONSTITUTION OF INDIA:  Article 51A (a) Fundamental Duty .- to abide by the Constitution and respect its ideals and institutions, the National flag and theNational Anthem

2.      THE PREVENTION OF INSULTS TO NATIONAL HONOUR ACT, 1971: Section 3.-  PREVENTION OF SINGING OF NATIONAL ANTHEM- Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.

3.      SUPREME COURT OF INDIA: Bijoe Emmanuel & Ors vs State Of Kerala & Ors ( 11 August, 1986): held that there is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in S. 3 of the Prevention of Insults to National Honour Act.

Need to Re-work Extant System of Reservation/Quotas

The current upheaval in perennially simmering cauldron of clamor for reservation /quota[1]  stands to reason that the quota based reservation policy, envisaged as a tool of egalitarianism, now has become a “prized booty” . It is begotten out of an AMALGAMATE of  “brute majority and/or brutal muscle power, blood-shed, vandalism, tacit political/administrative patronage and above the all, rampant political opportunism”. Let me clarify, at the very outset, that caste based reservation to a certain extent is still the indispensable need of hour keeping in view the most abhorrent & pernicious discriminations & prejudices heaped on a sea of humanity in the name of castes  from time immemorial in our Country. Although, extant form of reservation policy in practice in our Country is a politically sponsored, constitutionally enabled and judicially sanctioned FRAUD with the MASSES of all hues. Hence, it has become imperative to review the entire policy and efficacy of quotas in the present form. Amidst forbidding clamor for/against reservations all around, I venture out to put forth certain suggestions to possibly remedy the ills plaguing the extant system of reservation:

 
1. Free, assured and quality school education to children of “have-nots”.  To ensure maximum enrollments and minimal drop-outs accompanied by emphasis on skill development of such children.

2. To classify various castes in SC and OBC categories (by and large all states have some classification wrt OBC category. Central government should also sub-categorize the 27% central quota. The NCBC had also proposed the same to the central government in the 2015) and assignment of differential quotas to consequent sub-classes, and induction of some creamy layer criterion wrt SCs[2]. And to widen the scope of extant quite narrow CREAMY LAYER criteria wrt BC/OBC[3] so that all castes of these reserved categories, and actually deprived persons of these castes equitably reap the benefit of reservation.

3. To gradually move away from sole caste based criterion. To begin with let us reduce the present caste based quota of 50% to 35% and carve out a new category based on individual/class/occupation linked income criteria and assign it 15% quota besides 1%-5% horizontal quota for Sportspersons/Ex-servicemen/PWD/Women etc.  For example, from the standpoint of an individual all persons placed below poverty line (BPL) or persons forming part of some identifiable tangible class viz. rickshaw pullers, construction workers, farm laborers, domestic workers, small farmers, small traders etc may be made eligible for reservation. In Indra Sawhney 1992 Supp. (3) SCC 217, the Hon’ble SC held that “it is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised.”

PRINCIPLE OF QUEUE

Moreover, the benefits of reservation should accrue to those who need it most, from the marginalized groups. Therefore, those who have already availed the benefits of reservation should be placed at the end of the queue. In this manner, the benefits of reservation would go to those who are the most needy.

4. TO FOLLOW IN LETTER AND SPIRIT THE SUPREME COURT’S DECLARED CONSTITUTIONAL IMPERATIVE THAT “IN EVERY CASE WHERE THE STATE DECIDES TO PROVIDE FOR RESERVATION IT HAS TO COLLECT QUANTIFIABLE DATA PURSUANT TO A SCIENTIFIC SURVEY SHOWING BACKWARDNESS OF THE CASTE/CLASS  TO SUCH AN EXTENT THAT PEOPLE BELONGING TO SUCH CASTE/CLASS ARE NOT ABLE TO COMPETE IN OPEN/GENERAL CATEGORY AND  RESULTANT INADEQUACY OF REPRESENTATION OF THAT CASTE/CLASS IN PUBLIC EMPLOYMENT”. (See Indra Sawhney etc  vs UOI, 1992 ; M. Nagaraj and others vs UOI and others, 2006;  Ram Singh & others vs UOI , 2015; Ram Kumar Gijroya vs Delhi Subordinate Services Selection Board & Anr, 2016. Also see Division Bench judgment of Bombay High Court in Writ Petition (L) No. 2053 of 2014 decided on 14/11/2014 titled as Shri Sanjeet Shulka vs State of Maharashtra & others); Division Bench judgment of Gujarat High Court in Writ Petition (PIL) No.108 of 2016 decided on 04.08.2016 titled as Dayaram Khemkaran Verma s/o Khemkaran Verma vs. State of Gujarat & another; Division Bench order of Punjab and Haryana High Court on 23/9/2016 in CWP No.18514 of 2016 in Kalindi Vashishtha vs. State of Haryana and ors.). The only contemporaneous data of backwardness available in Haryana is in the form of Justice KC Gupta Report 2012 which was found flawed and unworthy of being acceptable by the Supreme Court  in the  case of Ram Singh & Ors vs Union of India 2015 (quashing the Central OBC Jat Reservation notification and following which Chandigarh High Court stayed the Special Backward Classes (SBCs) reservation notification in Haryana in the year 2015).

THUS, IT HAS BECOME IMPERATIVE TO CONDUCT SUCH SURVEY OF ALL CASTES ALREADY IN BC/OBC POOL, AND OTHER CASTES SEEKING INCLUSION THEREIN AND THEN RETAIN/INCLUDE ONLY THOSE CASTES WHICH FULFILL ABOVE SAID TEST LAID DOWN BY SUPREME COURT.

5. Decadal periodic revision of respective OBC lists by Union and state governments as per the Supreme Court's order in Indra Sawhney case in 1992. Such revision of Central OBC list  by the Central Government is also warranted by Section 11 of the THE NATIONAL COMMISSION FOR BACKWARD CLASSES ACT, 1993.

6. Moreover, Supreme Court in  I.R. Coelho case (2007) unequivocally held that “9^th Schedule does not provide a blanket immunity to a  law that abrogates or abridges Fundamental Rights . Such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article14, Article 19 of the Constitution and the principles underlying there under and such law may be invalidated in exercise of judicial review power of the Court in appropriate cases”.

7. The Supreme Court has also held that “Reservation in employment in services, and admission in educational institutes shall not ordinarily exceed 50% of the appointments or posts or seats barring certain extra-ordinary situations (See Indra Sawhney 1992, M. Nagaraj and others Vs Union of India and others 2006, Ashoka Kumar Thakur  2008).

8. Therefore, the State is free to exercise its discretion of providing for reservation to certain caste(s)/class(es) [in addiition to SC/STs] subject to Constitutional and Supreme Court's laid down limitations, namely, the ceiling-limit of 50% (QUANTITATIVE LIMITATION); the principle of creamy layer (QUALITATIVE EXCLUSION); the compelling reasons, namely, backwardness, inadequacy of representation, and the overall administrative efficiency.

9. Moreover, we need to understand that not only peasantry class is under distress due to continual shrinkage of agricultural land holdings but even other castes are no longer comfortably placed  in their traditional occupations/professions since people in significant number from all across the board have joined those occupations/professions  in this age of cut throat competition.  Be that as it may, however, distressed farmers stuck in the whirlpool of agrarian crisis are at the centre of current reservation agitation in Haryana. But the existing creamy layer criteria wrt BCs are too illusory, narrow & ineffective to allow any substantial benefit of reservation to percolate down to the said most needy segment of society.

10. From 1981 onward several anti-reservation stirs took place largely in Gujarat, Maharashtra, Andhra Pradesh, Rajasthan, Haryana, Uttar Pradesh and Delhi. Pro-reservation agitations are post 2000 phenomena. Interestingly, the very same castes which had opposed tooth and nail the reservations in those States in the past are now vociferously demanding for reservations although they are considered politically and socially highly dominant having made progress leaps and bounds in all spheres over the years by dint of hard work as well as owing to immense political clout.

11. It is no gainsaid to emphasize that reservation is neither a mercantile goody nor an agricultural bounty nor a discretionary free-bee by government. It is something which has serious bearing on fundamental rights of citizens enshrined in Articles 14, 19 and 21 of the Constitution and may  be granted only after thoroughly  & strictly complying with the requirements of the law of the land.

   

12. It would be apt to say that Reservation is like an elevator. It should be meant for those who can’t climb the stairs. The Founding Fathers’ idea of reservation policy was like that of the crutches lent to a physically challenged person until his limbs grow up and he stands on his own legs. Contemporary developments mark a paradigmatic shift in the conceptualization of reservation/quota system from a supporting “crutch” to extortionist “might is right.” The time has come at such a pass, paradoxically, where we see that the some of the erstwhile physically challenged persons although now having fully grown-up limbs yet do not want to let go of the borrowed crutches, and the historically able-bodied persons (albeit some of them are no longer strong enough and some others are feigning to have been emasculated) have also started clamoring for the crutches.

13. The observation of the Hon’ble Supreme Court in Ram Singh and Others vs Union of India, 2015 is also worth taken note of which goes thus “It is in Indra Sawhney’s case that this Court held that the terms “backward class in Article 16(4) ” and “socially and educationally backward classes in Articles 15(4) and 340” are not equivalent and further that in Article 16(4) the backwardness contemplated is mainly social. The above interpretation of backwardness in Indra Sawhney would be binding on numerically smaller Benches. We may, therefore, understand a social class as an identifiable section of society which may be internally homogenous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender). BACKWARDNESS IS A MANIFESTATION CAUSED BY THE PRESENCE OF SEVERAL INDEPENDENT CIRCUMSTANCES WHICH MAY BE SOCIAL, CULTURAL, ECONOMIC, EDUCATIONAL OR EVEN POLITICAL. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India (2014) 5 SCC 438 is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice. The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.”

14. Moreover, we must be alive to the hard fact that reservation is a State's indulgence and one should not seek indulgence of other unless it is not at all possible to stand on one’s own legs due to some insurmountable present compulsions (like victims of calamities, genocides, war, disabilities, acute economic constraints) or historical discriminations/deprivations/injustice.

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   ENDNOTES

[1]  Known as affirmative action in the USA. Reservation in India and Nepal.Positive discrimination in the UK. Also known in a narrower context as employment equity in Canada and South Africa.

[2] In Indra Sawhney 1992 Supp. (3) SCC 217, the Hon’ble SC held that “there is no constitutional bar to classify the backward classes of citizens into backward and more backward categories.” In E.V. Chinnaiah Vs. State of Andhra Pradesh and Ors (2004) , the Supreme Court while relying on the judgment in State of Kerala Vs N.M.Thomas and Ors (1976) held that   by virtue of Article 341 and Presidential notification, the Scheduled Castes constitute a homogenous class by themselves and, therefore, ‘ any executive action or legislative enactment which interferes, re-groups or re- classifies the various caste found in the Presidential List will be violative of scheme of the Constitution and of Article 341 of the Constitution. However, the Hon’ble Supreme Court in HARYANA DHANAK SEWA SAMITI   VERSUS STATE OF HARYANA & ORS. (CIVIL APPEAL NO. 5586 OF 2010) and STATE OF PUNJAB & ORS. VERSUS DAVINDER SINGH & ORS. (CIVIL APPEAL NO. 2317 OF 2011) has expressed doubts on the correctness of view taken in the case of E.V. Chinaiah  and hence referred the matter to a larger Bench. The Referral order reads thus “we are of the view that E.V. Chinnaiah needs to be revisited        in      light       of       Article       338    of    the Constitution of India, and exposition of of  law in Indra  Sawhney case. Moreover,        the       matter      also       involves interpretation      and       interplay     between     Article 16(1), Article 16(4), Article 338 and Article 341 of the Constitution of India as well. In   this   view    of    the   matter,   we     refer   the matter for consideration of the above aspects by the larger Bench. Let the matter be placed before the Chief Justice   on    administrative       side   for     appropriate order."

The Supreme Court will hear a petition to exclude the affluent members, or the creamy layer, of the Scheduled Castes and Scheduled Tribes from the benefits of reservation. A Bench, led by Chief Justice of India Dipak Misra, will hear the petition which argues that the rich among the SCs/STs are “snatching away” the benefits, while the deserving and impoverished continue to “bite the dust.” It is this lack of percolation of benefits to the poor and really backward among these communities that has led to social unrest, Naxalite movements and perennial poverty, it says. This is the first time a petition has been filed urging the Supreme Court to introduce the creamy layer concept for the SCs/STs. The petition, filed by advocate Shobhit Tiwari, refers to the Constitution Bench’s 2006 judgment in the M. Nagaraj case that the “means test [a scrutiny of the value of assets of an individual claiming reservation] should be taken into consideration to exclude the creamy layer from the group earmarked for reservation.”

See “Plea to exclude SC/ST creamy layer from quota”, The Hindu, January 29,  2018. (http://www.thehindu.com/news/national/plea-to-exclude-scst-creamy-layer-from-quota/article22544974.ece)

[3] As per the creamy-layer criteria issued by Government of India DOPT O.M.  No.36012/22/93-Est. (SCT) dated 8.9.1993 (also adopted by Supreme Court in  judgment  in Ashoka Kumar Thakur Vs. Union of India and Ors (Civil writ petition no. 265/2006)    on 27%  OBC  reservation in Central higher educational  institutions) actually the creamy-layer income limit of Rs. 6 lakhs is not applicable to "salary income" of  “government servants and those employed in private sector"  and “farmer’s agricultural income”. Further, Only  those candidates/applicants will be treated in creamy-layer whose farmer parents are having irrigated land which is equal to or more than 85% of the statuary ceiling area and the rule of exclusion will not apply if the land holding of a family is exclusively un- irrigated. In Haryana, there is no qualifying limit of 85%. (Note: Ceiling on land holding varies in different States.) Only “business  income”  is reckoned into creamy layer limit. The Applicants are to be checked by income/posts/landholding made/held by their parents.  In rule- (6) showing creamy-layer limit of Rs.4.50 lakhs (now spiked to 6 lakhs) following explanation is already given:  “Income from salaries or agricultural land shall not be clubbed with income” . In terms of creamy-layer criteria issued by Government of India DOPT O.M.  No.36012/22/93-Est. (SCT) dated 8.9.1993, Government of India clarification dt 14 October 2004 and NCBC Letter to Government of India in July 2016, income from salaries [Government as well as  PSU, Banks Autonomous bodies, private where no equivalence or comparability of posts vis-a-vis posts in government has  been evaluated (in fact no such evaluation at all took place yet as clear from said NCBC letter to Government of India)]  and agricultural land both shall not be clubbed with  the annual income of parents because there is a separate rule number (2) & (3) provided on the  basis of “post held” for salaried persons & rule number (5) is provided on the basis of “land  holdings” for persons holding agricultural land. Government of India DOPT O.M.  No 36033/1/2013-Estt. (Res)dated 27-5-2013 has further raised the income limit from Rs. 4.5 lakh to Rs. 6 lakh per annum for determining the creamy layer among OBCs.

GOI , Ministry of Personnel, Public grievance & Pension, Dept of Personnel & Training O.M. No. 36033/5/2004-Estt (Res) dt 14^th October 2004 has amply clarified that “THE CREAMY LAYER STATUS OF CANDIDATE/APPLICANT IS DETERMINED ON THE BASIS OF THE STATUS OF HIS PARENTS AND NOT ON THE BASIS OF HIS OWN STATUS OR INCOME OR ON THE BASIS OF STATUS OR INCOME OF HIS/HER SPOUSE. THEREFORE WHILE DETERMINING THE CREAMY LAYER STATUS OF A PERSON THE STATUS OR THE INCOME OF THE CANDIDATE HIMSELF OR OF HIS/HER SPOUSE SHALL NOT BE TAKEN INTO ACCOUNT”.

Present creamy layer criteria is parent specific. Income from salaries and/or  agricultural land should be taken into the annual income of parents of the beneficiary rather than keeping it confined to “business  income” only. Moreover, income/status of candidate/applicant himself/herself should also bear some consideration in determining creamy layer status. The present ceiling of Rs. 6 Lakh should be rationalized and pegged at not more than Rs 3 lakh per annum.  The first ceiling for OBC reservation was fixed at Rs one lakh annually in 1993, which was increased to Rs 2.5 lakh in 2004 and  hiked to Rs. 4.5 Lakh in 2008 and further spiked to Rs 6 lakh in 2013. The present criterion of creamy layer in OBCs’ compared with the limit of below poverty line is highly ludicrous. As per the Government of India, poverty line for the urban areas is Rs. 296 per month and for rural areas Rs. 276 per month. Although, income ceiling vis-a-vis creamy layer in States is not necessarily in consonance with central ceiling and it varies from State to State. For example, in Haryana and Rajastan it is Rs 4.5 Lakh and Rs 2.5 Lakh respectively. (also note the ANNUAL INCOME CRITERIA FOR ECONOMICALLY BACKWARD PERSONS IN GENERAL CASTES CATEGORY in HARYANA: Total annual income of the FAMILY OF THE APPLICANT should not CUMULATIVELY exceed Rs 2.5 LAKHS per annum FROM ALL SOURCES eg. SALARY (PRIVATE, PUBLIC, GOVERNMENT SECTORS), AGRICULTURAL INCOME, BUSINESS, PROFESSIONAL INCOME etc etc. . "Family" for the purpose of applicant seeking reservation as "Economically backward" is defined as follows: (a) Head of the family and his/her spouse; (b) Dependent children and their spouses; (c) unmarried dependent brothers and sisters).

Mgmt quota in schools

THE TRIBUNE, NEW DELHI, JAN 09, 2016

Mgmt quota in schools

Apropos the news report “Delhi govt scraps mgmt quota in private schools” (January 7), to strive for an educated and trained citizenry is the responsibility of the state. However, owing to peculiar resource-based bottlenecks, the State is not living up to expectations in the discharge of this indispensable duty. Hence, private unaided educational institutes have stepped in to supplement the efforts of State in this sphere. Of late, it is seen that these institutes have turned virtually into money-minting centres, fleecing the students/their parents on one pretext or other. The fee norms laid down by the State Fee Committee are flouted with impunity. On the other hand, these institutes miserably fail to provide even bare minimal facilities to the students in terms of qualified faculty and other essential infrastructure. Most of the hapless students do not muster up enough courage to bring their predicament before the authorities concerned. Those who stand up against the highhandedness come across callous or collusive officials at various levels and eventually incur the wrath of the institutes in various forms. All concerned should look into it without delay.

R Goyal, Bahadurgarh        

The original write-up sent to the Tribune reads thus:

MONEY MINTING CENTRES MASQUERADING AS EDUCATIONAL INSTITUTES

Apropos News Report “Delhi govt scraps mgmt quota in private schools” (7 Jan), to strive for an educated and trained citizenry is the paramount responsibility of the State. However, owing to peculiar resource based bottlenecks, the State is not living up to expectations in the discharge of this indispensable duty. Hence, the private unaided educational institutes have desirably stepped in to supplement the efforts of State in this sphere. THE CATENAS OF DECISIONS OF THE HON’BLE SUPREME COURT (FROM TMA PAI TO PA INAMDAR) HAVE ACCORDED SUFFICIENT AUTONOMY TO SUCH INSTITUTES IN THE MATTERS OF ADMINISTRATION AND MANAGEMENT. AT THE SAME TIME, THE CONTROL OF THE STATE OVER SUCH INSTITUTES IN CERTAIN MATTERS LIKE IMPARTING OF QUALITATIVE EDUCATION, FEE, TRANSPARENCY ETC. HAS BEEN RETAINED. Of the late, it is seen that these institutes have turned virtually into money minting centres fleecing the students/their parents on one pretext or other. The fee norms laid down by the State Fee Committee are flouted with impunity. On the other hand, these institutes miserably fail to provide even bare minimal facilities to the students in terms of qualified faculty and other essential infrastructure. The most of the hapless students do not muster-up enough courage to bring their predicament before the authorities concerned for presumable reasons. Those who stand up against the highhandedness come across callous or collusive officials at various levels and eventually incur the wrath of the annoyed institutes in various forms. All concerned should look into it without delay.

R. Goyal, Bahadurgarh