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

Effect of Hindu Succession (Amendment) Act, 2005 remains intact

I read the article “A quiet burial to women’s rights in patrimony?” (23 Dec) penned  by the most erudite Prof Virendra Kumar wherein he contended that the Hindu Succession  (Amendment) Act, 2005 has been  surreptitiously struck off the Statute Book by the Repealing and Amending Act, 2015 and thereby attempt to dismantle disparity between sons and daughters in the matters of equitable division of ancestral property has been done to death .  However, it is respectfully submitted  that  said Act of 2015 merely had the effect of  repealing the Acts enlisted therein  which had become redundant since appropriate  amendments had already been made in various principal legislations pursuant thereto. Since the provisions of the amending Act of 2005 had already been incorporated in the principal legislation ie Hindu Succession Act, 1956 and hence, effect of  Hindu Succession (Amendment) Act, 2005 still remains intact notwithstanding its repeal by the Repealing and Amending Act of 2015. Therefore, record needs to be put straight.

Dr RAJENDER GOYAL, Bahadurgarh

( I emailed the above piece to the TRIBUNE on 27 Dec 2015 but it was not published. However, a clarification from THE MOST ERUDITE & ACCLAIMED JURIST Prof Virendra Kumar appeared in the TRIBUNE in the form of “LETTER TO THE EDITOR” on 28 Dec 2015 which reads thus:)

Burial to women's rights

THE TRIBUNE, NEW DELHI, 28 Dec 2015

In my piece “A quiet burial to women’s rights in patrimony” (December 22, 2015), I concluded by saying that “should we repeal the amending Act of 2005 that sought to destroy perpetuation of discrimination merely on grounds of sex, and give it a quiet  burial for returning to the hoary past without any debate, discussion or deliberation?”

While doing so, inadvertently I failed to take note of the silent saving contained in Section 4 of the Repealing Act, 2015, which has been interpreted recently by a Division Bench of the Karnataka High Court by holding that “by virtue of the Repealing and Amending Act 2015 the amendment made to Hindu Succession Act in 2005 became part of the Act and the same is given retrospective effect from the day of the Principal Act came into force in the year 1956 as if the said amended provision was in operation at that time.” Though the retrospective-effect-proposition of the Bench is flawed in view of the latest ruling of the SC, the former proposition stands. 

But, I still feel, as I have stated earlier, “The aberrations to the amending Act should be removed by giving the daughter an equal share in patrimony without resorting to the quick-fix of making her a ‘coparcener’ as envisaged in Section 6 of the amending Act of 2005. This would do justice to the daughter, without disrupting the joint family setup.”

Virendra Kumar, Chandigarh

Release inevitable

                                The Tribune, New Delhi, 26 December 2015

                                                  Release inevitable

In the context of the juvenile convict's release, Article 20(1) provides protection against ex post facto law, ie no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor he be subjected to a penalty greater than that might have been inflicted under the law in force at the time of the commission of the offence. Thus, legally speaking, the release of the said juvenile offender was inevitable even if some stringent law would have been enacted before his release since no criminal substantive law can be administered retrospectively.  

Dr RAJENDER GOYAL, Bahadurgarh

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

There is a sense of revulsion all across that our Parliamentarians have failed to provide justice in Nirbhaya case for want of timely passage of stringent Juvenile Justice Bill 2014 in Rajya Sabha. Hysterical discussions transpired in Electronic Media have left an impression that - had the Rajya Sabha passed the said Bill followed by Presidential assent and Gazette notification before December 20, 2015 ( the day juvenile offender was released) he would have been made to stay in incarceration beyond the maximum period of three years as prescribed in JJ Act of 2000.

 However, it is no gainsaid to emphasize that Article 20(1) of the Constitution provides necessary protection against ex post facto law ie no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor he be subjected to a penalty greater than that might have been inflicted under the law in force at the time of the commission of the offence. Thus, legally speaking, the release of said juvenile offender was inevitable even if some stringent law would have been enacted before his release since no criminal substantive law can be administered retrospectively.  

Dr RAJENDER GOYAL, Bahadurgarh

Juvenile offenders

The Tribune, New Delhi, 23 December 2015

Juvenile offenders

The alarming scourge of juveniles involved in heinous offences and the impending release of Nirbhaya gangrape juvenile offender owing to inadequacies in the Juvenile Justice Law of 2000 warrant for immediate passage of “The Juvenile Justice (Care and Protection of Children) Bill” pending in the Rajya Sabha which was passed by the Lok Sabha on May 7, 2015. The Bill permits juveniles above the age of 16 years to be tried as adults for heinous offences by children’s courts if the Juvenile Justice Board finds the juvenile fit to be tried as an adult based on a preliminary assessment with regard to his mental and physical capacity to commit such an offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. 

Dr. Rajender Goyal, Bahadurgarh

Delhi Janlokpal Bill, 2014 & Delhi Janlokpal Bill, 2015: MYTH vs FACT

1.  Selection committee:

There is some dilution on this score.. However, in the Bill of 2014, the Chairman of Selection Committee was Chief Minister…in the Bill of 2015, Chairman of Selection Committee is Chief Justice of Delhi High Court and Chief Minister, LOP and Speaker are other members..It is clear that no appointment can be made unless supported by Chief Justice or LOP (both are non-governmental appointees).

The Selection Committee in Central Act of 2013 is  the Prime Minister—Chairperson with other members viz.  Speaker & LOP (LokSabha), CJI or a Judge of SC as CJI’s nominee, one eminent jurist, as recommended by the Chairperson and Members above. Supreme Court held in NJAC case that selection of eminent person by a majority of political members has every apprehension of selection of said member being vitiated by political influence. The same holds good for selection of eminent jurist above. Hence, it can be said that inclusion of 5^th member as eminent jurist selected by 3 political persons and one non-political person does not add to political bi-partisan character of selection committee.  

POST SCRIPT:

On December 04, 2015, Delhi Legislative Assembly passed the DJLP Bill, 2015 after amending S. 3(1) thereof  and adding three additional members in selection committee:

1.       An eminent personality chosen by the Chief Justice of Delhi High Court, Speaker, LOP   and CM

      2.       A Delhi High Court Judge

      3.       A Former Delhi Janlokpal

2. Search Committee, Public participation etc qua Selection of Delhi JanLokpal:

Provision for Search Committee, public participation qua Selection process may be put in place by regulations framed by DJLP under S. 3(1) and rules framed by government under Section 30(2)(a) & (i)

3. Independent investigation agency: 

 Section 10(1) of the Bill of 2015 specifically sets out that  Janlokpal may appoint ..as investigation officers (called “Janlokpal Investigating Officer”). Further Section 10 (2) says a Janlokpal Investigating Officer shall have all the powers which are vested in a police officer while investigating offences under the Code of Criminal Procedure, 1973 (2 of 1974).  Besides, Section 10(3) says that the Chairperson and all Members of the Janlokpal and all other officers of the Janlokpal, superior in rank to a Janlokpal Investigating Officer, may exercise the same powers as may be exercised by such Janlokpal Investigating Officer. Thus, section 10(1)(2)(3) provides for an independent investigation agency under Delhi Janlokpal.  

It is noteworthy that Delhi Assembly does not have power to legislate qua police. It is further compounded by MHA notifications of 25 July 2014 and 21 May 2015. However, judgment of Delhi High Court in the case of Anil Kumar on  25.05.2015 is silver lining. Jury is still out to decide whether investigation apparatus/machinery/power emanates from Entry 2 (Police) of List 11 (State List) or from Entry 2 (Criminal Procedure) of List 111 and consequently to ascertain legislative competence of Delhi Legislative Assembly under Article 239AA of the Constitution. 

4  Jurisdiction:

 Alleged overreach in Central domain in both bills of 2014 and 2015 are substantially same.

 Delhi JLP Bill 2014: S. 2(1)(iii) expressly included Delhi Police, DDA, MCD, NDMC (ie Central Government Public servants). Also S.2(m) thereof, by way of implication due 2 inclusive provision included Central Government public servant viz PM, Minister etc. Even an ordinary anti-graft law like  PCA,1988 makes no differentiation/discrimination among various Central Government  public servants (from peon to PM). Be it DDA/Delhi Police/NDMC/MCD employees/functionaries or PM, Central Ministers etc...POA, 1988 sway equally applicable. Meaning thereby, if DELHI JANLOKPAL can exercise jurisdiction over Central governments public servants qua Delhi Police, DDA, MCD, NDMC, same holds good for other Central Public servants viz. PM, MPs, Central Ministers etc if they indulge in corruption within NCT of Delhi.

However, the Bill of 2014 had specifically excluded judiciary from its purview, whereas the jurisdiction clause in the Bill of 2015 is all-encompassing.  Section 7 of the Bill of 2015  reads thus:

“Subject to the provisions of this Act, on receiving complaints from the Government or from members of the public or suo motu, the Janlokpal may proceed to inquire or investigate into the allegation of ‘corruption’ occurring in the National Capital Territory of Delhi.

Definition of Public servant in S. 2(m) in DJLP Bill 2014 was ALL-INCLUSIVE except Judiciary.  ALL–INCLUSIVE means that not only includes within its fold the entities specifically included but also deemed to have included all other entities not specifically excluded. Thus, S. 2(l) & (m) of DJLP Bill 2014 includes  within its fold all public servants (Central+NCTD) except judiciary. Central public servants of Delhi Police/DDA/MCD/NDMC specifically included in S.2(l) of DJLP Bill 2014. Delhi CM, Ministers, MLAs etc specifically included in S. 2(m) of DJLP Bill 2014. Rest of public servants (central + NCTD) except JUDICIARY impliedly included in S. 2(m) of DJLP Bill 2014 owing to all-inclusive definition. S. 7 of DJLP Bill 2015 covers all public servants (Central + NCTD) including JUDICIARY  Hence, outreach, if any, in domain of centre is same in Bills of 2014 & 2015 in view of  S. 2 (l) & (m) of 2014 n S. 7 of 2015.

 S. 2(m) of DJLP Bill 2014 consists of 3 parts. 1. Gen clause ..all inclusive

2. specific inclusion

 3. specific exclusion  .

The remit of part 1 (gen clause) limited by specific exclusion in part 3 (ie judiciary)..everything else comes into its fold . Needless to say executive power co-extensive with legislative power . If Delhi Govt’s  ACB can file a case against Central Minister (V. Moily) n MP (M. Deora) along with Mukesh Ambani. WPs(c) 2775, 2946/2014 in Delhi HC against said FIR filed by ACB still pending, no adjudication yet. FOR A STRONGR REASON, Delhi Assembly can confer same power on DJLP vide a law ie DJLP Bill-2015

It is pertinent to note that even Prevention of Corruption Act, 1988 does not exclude judiciary from its ambit. 

In the case of K. Veeraswami v. Union of India   (1991) 3SCC 655  The Hon’ble SC of India held qua HIGHER JUDICIARY that :

“Thus, in order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filling FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with the advice given by the Chief Justice of India. If the Chief Justice of India is of the opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the President shall not accord sanction to prosecute the Judge. This will save the Judge concerned from unnecessary harassment as well as from frivolous prosecution against him. Similarly in the case of Chief Justice of India the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and the President shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court.”

In the case of Delhi Judicial Service  vs State Of Gujarat And Ors. Etc-Etc (1991 AIR 2176, 1991 SCR (3) 936) the Supreme Court of India held qua LOWER JUDICIARY that:

(A) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.

(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The facts of such arrest should be immedi- ately communicated to the District and Ses- sions Judge of the concerned District and the Chief Justice of the High Court.(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge. (F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, it' available.

(G) There should be no handcuffing of a Judi- cial Officer.

5      False complaint and Punishment:

The bill of 2014 vide Sections 22(5) and 35 provided for equally stringent fine and punishment.

6. REMOVAL:

S. 6(1) & (2) qua removal of Lokpal (Chairman/member) in Delhi Janlokpal Bill 2015 is   analogous to removal of SC/HC Judges provided in Art.124(4)(5) & 217(1)(b) of the Constitution. Everyone seems to be hooked on S. 6(1) and wittingly or non-wittingly losing sight of provision envisaged in S. 6(2) .

SECTION 6 OF DELHI JANLOKPAL BILL 2015 READS THUS:

 (1) The Chairperson or a Member of the Janlokpal shall not be removed from his office except by an order of the Lieutenant Governor passed after an address by the Legislative Assembly supported by a majority of the total membership of the legislative Assembly and by a majority not less than two thirds of the members thereof present and voting has been presented to the Lieutenant Governor in the same session for such removal on the ground of proved misbehavior or incapacity.

(2) The procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of the Chairperson or a Member of the Janlokpal under sub-section (1) shall be as prescribed in the Rules.

ARTICLE 124 (4) (5) OF THE CONSTITUTION READS THUS:      

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than twothirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).

THE JUDGES (INQUIRY) ACT, 1968 (Relevent extract)

An Act to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court or of the presentation of an address by Parliament to the President and for matters connected therewith.

Investigation into misbehaviour or incapacity of Judge by Committee.

3 (1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-

(a) in the case of a notice given in the House of the People, by not less then one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less, then fifty members of that Council, then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him either admit the motion or refuse to admit the same.

(2) If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute as soon as may be for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three members of whom -

(a) one shall be chosen from among the Chief Justice and other Judges of the Supreme Court;

 (b) one shall be chosen from among the Chief Justices of the High Courts; and

(c) one shall be a person who is in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist 

NOTE:

1.         Parliament in exercise of power under Article 124(5) has enacted Judges enquiry Act 1956 qua procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge

2.         Why should we rule out that Govt of NCTD in exercise of rule making power will not put in place a mechanism qua procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of the Chairperson or a Member of the Janlokpal akin to as provided in JUDGES ENQURY ACT 1956. Constitutional law is supplemented by Central Legislative law, AND Central/State Legislative law with govt rules. Art 124(4) qua SC/HC judges impeachment supplemented by Parliament Law of JI Act,1968 enacted u Art 124(5). SIMILARLY S. 6(1) of DJLP 2015 will be supplemented by Govt rules framed under S. 6(2).  Govt rules framed under a Law requires 2 be laid in Legislature n latter can amend/annul them.

POST SCRIPT:

On On December 04, 2015, Delhi Legislative Assembly passed the DJLP Bill, 2015 after amending S. 6(2) of DJLP Bill, 2015 and thus specifically mandating that for the removal of Delhi JanLokpal, an inquiry by Delhi High Court will precede the impeachment process in Delhi Legislative Assembly as envisaged in S. 6(1) 

3.         Removal procedure envisaged in In Section 22 of Delhi Janlokpal Bill of 2014 was thus: “The Chairman or any other member of Janlokpal shall only be removed from his office after High Court of Delhi on a complaint of any person, on an enquiry held in accordance with such procedure as may be formulated by the High Court of Delhi, recommend that the Chairperson or such Member, as the case may be, ought to be removed. “

            It is no gainsaid to emphasize that there is already docket explosion in every High Court in India. The scourge of pendency of cases is increasing exponentially. The Section 22 of Bill of 2014 had every scope of giving rise to “COMPLAINT EXPLOSION” qua Delhi Janlokpal in Delhi High Court seriously affecting judicial adjudicatory functions of High Court without much  effective time left for constructively & comprehensively enquiring into each and every complaint made to it.

CAVEAT:

TEAM ANNA (consisting of all stalwarts like Anna, Arvind Kejriwal, Prashant Bhushan, Shanti Bhushan, Justice Santosh Hegde, Kiran Bedi etc etc ) drafted JANLOKPAL BILL 2011. Then there was a split in TEAM ANNA. One group led by Anna ji decided to keep on embarking upon  MOVEMENT PATH and other group consisting of Arvind Kejriwal, Shanti Bhushan, Prashant Bhushan etc embraced  POLITICAL PATH. Parliament passed LOKPAL and LOKAYUKTA ACT, 2013 in December 2013 just in the wake of declaration of result of the Delhi Legislative Assembly  Election-2013. ANNA GROUP accepted LOKPAL and LOKAYUKTA ACT, 2013. Then AAP govt drafted Delhi Janlokpal bill 2014 and endeavored to table it in Delhi Assembly on Feb 14, 2014 unsuccessfully. It is noteworthy that neither the LOKPAL and LOKAYUKTA ACT, 2013 accepted by ANNA GROUP  nor Delhi Janlokpal bill 2014 drafted by GROUP consisting of Arvind Kejriwal, Prashant Bhushan, Shanti Bhushan etc   and unsuccessfully  tried to be tabled in Delhi Assembly on 14 Feb 2014  were exact replica of JANLOKPAL BILL 2011 . Meaning thereby, both GROUPS  had climb-down to varying extent from the DRAFT Jankokpal bill 2011.

 So REFERENCE POINT to assess the merit/demerits of Delhi Janlokpal Bill 2015 tabled in Delhi Legislative Assembly on Nov 30, 2015 is not JANLOKPAL BILL 2011. It should be examined on the touch-stone of LOKPAL and LOKAYUKTA ACT, 2013 in general  and Delhi Janlokpal bill 2014 in particular.