01 Nov 2022: UPSC Exam Comprehensive News Analysis

B. GS 2 Related

Category: SOCIAL JUSTICE

1. Ambiguity of reservations for the poor

Syllabus: Mechanisms and Laws for Protection & Betterment of These Vulnerable Sections

Mains: Analysis of Reservation in India

Context: On September 27, 2022, a Constitution Bench led by Chief Justice of India U. U. Lalit heard multiple petitions against reservations based solely on economic criteria introduced by the Constitution (103rd) Amendment Act, 2019. 

Introduction: 

• After extensive hearings, a five-judge Constitution bench reserved its verdict on a batch of pleas challenging the validity of the 103rd Constitution amendment providing 10 per cent reservation to economically weaker sections (EWS) persons in admissions and government jobs.
• The legal question is whether the EWS quota violated the basic structure of the Constitution.
• Earlier, the Union government in 2019, had also told the Supreme court that the amendment, granting a 10% quota for EWSs, was brought in to promote “social equality” by providing “equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status”.

Background: 103rd Constitutional Amendment Act

• The 103 Constitutional Amendment Act brought in a 10% reservation for Economically Weaker Sections (EWS) of society other than Backward Classes, Scheduled Castes, and Scheduled Tribes for admission to central government and private educational institutions and recruitment in central government jobs.
  • The Amendment Act modified Article 15 to allow the government to provide for the progress of economically weaker sections.
• The 103 Constitutional Amendment Act also covers private unaided educational institutions, except minority educational institutions.
  • It amended Article 16 to facilitate the reservation of economically weaker sections for up to 10 percent of all posts.
• The amendment leaves the definition of ‘economically weaker sections’ to be determined by the state on the basis of ‘family income’ and other economic indicators. 

Issues raised against the 103rd Constitutional Amendment Act: 

• The legal challenge to the validity of the 103rd amendment is a ‘basic structure challenge’.
  • As the Amendment violates the principle of equality
  • The Amendment breaches the 50% ceiling on reservations, and
  • The Supreme Court has consistently ruled that for reservations to be reasonable and not to defeat the main right to equality, the total reservations should not be greater than 50 per cent. However, this ‘50 per cent ceiling’ stands effectively breached by the 103rd Constitution amendment.
  • One of the reasons for the quota limit of 50% is explained in Indra Sawhney where the Constitution was seen as enabling “appropriate representation” and not “proportionate representation”.
• Under Article 16(4), reservations for backward classes (SC/STs, OBCs) are dependent on beneficiary groups not being ‘adequately represented’ but that has been omitted in the newly inserted Article 16(6) for EWS. 
• The amendment through Article 16(6) ends up making it easier for the state to provide reservations in public employment for EWS than the requirements to provide reservations for ‘backward classes’ under Article 16(4).

Constitutional examination of reservations in India:

• The State of Madras v. Smt. Champakam Dorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation. The case led to the first amendment to the Constitution.
  • The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favour of the backward class of citizens, no such provision was made in Article 15.
  • Pursuant to the Supreme Court’s order in the case, the Parliament amended Article 15 by inserting Clause (4).
• In the Indra Sawhney Case of 1992, the Supreme Court while upholding the 27 percent quota for backward classes, struck down the government notification reserving 10% government jobs based purely on economic criteria and called it unconstitutional.
  • The Supreme Court in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population.
  • The Supreme Court’s reasons included the position that income/property holdings cannot be the basis for exclusion from government jobs, and that the Constitution was primarily concerned with addressing social backwardness.
• The Parliament enacted the 77th Constitutional Amendment Act in 1995 which introduced Article 16(4A).
• The Supreme Court in M. Nagaraj v. Union Of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:
  • The SC and ST communities should be socially and educationally backward.
  • The SC and ST communities are not adequately represented in public employment.
  • Such a reservation policy shall not affect the overall efficiency of the administration.
• The Supreme Court in various cases had also ruled that economic status cannot be the sole criterion for reservation.
  • Many states had tried to implement Economic Reservation, however, they were subsequently quashed by Courts.

Analysis:

• The Constitution of India redresses the historic injustices and corrects the manifest imbalance in matters of higher education and public employment by delineating an “equality code”. 
  • Article 14 guarantees equality before the law and equal protection of the law for everyone. The principle of Equality is an essential feature of the Basic Structure.
• Any alteration of this ‘Equality Code’ must stand the widely accepted tests of ‘Identity’ and ‘Width’ as laid out in the M. Nagaraj case. These tests were developed to ensure that the balance between equality in law and equality in fact is maintained whenever an Amendment is formulated in regard to reservations.
  • Thus, any alteration in the existing structure of the Equality Code would be tantamount to violating the Basic Structure itself.
• In M.G. Badappanavar v. State of Karnataka (2000), the Supreme Court ruled that “equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals would violate the basic structure of the Constitution ”. 
  • Therefore, the income limit for determining economic backwardness should be lower and should not be the same as that for determining the ‘creamy layer’ for Other backward classes.
• Reservation is not the remedy to the problem of poverty but reservation is about compensating for social and institutional barriers to representation. This makes mandating reservations on economic disadvantage arbitrary.
• As per the Supreme Court’s observation, the poorer sections among the upper castes could be elevated through different affirmative actions like providing them with scholarships and other financial help. 

Read more on Reservations in India.

Nut Graf: A five-judge constitution bench set down major legal issues including violation of Basic Structure to be debated for scrutinising the validity of the 103rd Constitutional amendment act which provided for quota benefits to the EWS in public employment and educational institutions.

E. Editorials

Category: INDIAN POLITY AND GOVERNANCE

1. Sequence of implementation, EWS quota outcomes

Syllabus: Government policies and interventions.

Mains: Concerns with Economically Weaker Sections.

Prelims: Economically Weaker Section reservation.

Details:

• The main objective behind the reservation policy of the newly independent India was to give a fair opportunity to the most marginalized sections of the population. Before independence, these groups were stigmatized and discriminated against due to their birth into specific caste or tribal groups, leading to significant social and economic disparities. 
• These sections were also economically deprived, but this was not the major reason for instituting compensatory discrimination in their favour.
• Over the years, reservation policy has undergone expansion to incorporate more groups under its ambit. This has led to debates on the general principle behind affirmative action as well as the rationale for including various groups as its beneficiaries. 
• These disputes have further resulted in complex legal cases guiding the practical implementation of the reservation policy.

Background details:

• The reservation system in India has two forms: 
  • Vertical reservation (VR): VR was defined for stigmatized and marginalized social groups like Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) till 2019.
  • Horizontal reservation (HR): It is applicable to cross-cutting categories like people with disability (PWD), women,  domicile, etc. 
• It should be noted that when the VR system was based on the social group (till 2019), individuals were not eligible for multiple VR categories. This was because an individual cannot belong to multiple castes or tribal groups simultaneously.
• The 103rd Constitution Amendment Act, 2019, often referred 10% quota for the Economically Weaker Section (EWS), fundamentally altered the original purpose of reservations by opening VR to sections that are not defined in terms of social (caste or tribe) identity.
• Moreover, the status of EWS is transient implying that individuals can fall into or escape from the section, whereas social groups are permanent markers of identity.
• As a result, a person can belong to two VR categories (for instance, SC and EWS). However, the amendment explicitly eliminated people who are already eligible for one VR (SC, ST, or OBC) from the ambit of EWS reservations. This exclusion implies that a person can be eligible for only one vertical category.
• This exclusion was challenged in court on the grounds of violation of the right to equality (mentioned in Articles 14 to 18 of the Indian Constitution).
• A proposal was made to the Constitutional Bench of the Supreme Court that instead of revoking the amendment, it should be interpreted in such a way that it does not debar the social groups from the ambit of EWS reservation.

Overlapping categories and associated concerns:

• Allowing overlapping VR categories would generate ambiguity under the current legal framework, stemming from the judgment of the Indra Sawhney case (1992). 
  • According to Indra Sawhney’s case, any individual of a reserved category who is entitled to an open-category position on the basis of a “merit” score should be awarded an open-category position instead of a reserved position. 
  • This means that open-category positions should be allocated first on the basis of merit and then reserved positions should be allocated to an eligible person in the second step. This procedure is referred to as the “over-and-above” choice rule in the literature. 
  • This is distinct from the “guaranteed minimum” rule that guarantees a minimum number of positions to members of beneficiary groups, regardless of whether they enter through reserved or open category positions.
• If the VR categories are mutually exclusive, it would render the procedure of sequencing vertical categories in relation to each other immaterial. On the other hand, if individuals can belong to two vertical categories simultaneously, then the relative processing sequence of reserved categories becomes very important. This was highlighted by an economist in a research paper.
• Sequencing impacts:
  • If EWS is sequenced first:
    • If EWS positions are filled before other VR categories and immediately after the open category seats, more than 98% of the population will qualify for reservation. This can be attributed to the current income limit for EWS. 
    • The outcome would be similar to open positions. Thus making the EWS reservation redundant.
  • If the EWS is sequenced at last:
    • If EWS positions are filled after the allocation of all other reservations, then every person having incomes lower than the EWS limit will be equally eligible for EWS positions. 
    • This procedure will award the EWS reservation to all eligible candidates on the basis of merit scores. As some of the higher scorers of SCs, STs, and OBCs would be already admitted under their respective quotas, this sequencing will make EWS positions more accessible to members of forward castes.

Analysis of the study:

• The article demonstrates that two procedures can give very different results. 
• If the purpose is to make EWS applicable to all social groups, then EWS-first should be adopted recognizing the fact that this procedure will effectively render EWS similar to open category positions. 
• Whereas if the aim is to minimally interfere with the amendment, then EWS-last should be adopted. It should be remembered that this will tilt the EWS reservation more in favour of forward castes. 
• As the impact of these routes is very different, the aspect of EWS reservation should be carefully studied and integrated into policy implementation.
• If the present income limit of the EWS category is changed, then poorer individuals from all social groups can also become eligible. In this case, the richer individuals of SC, ST, and OBC would be eligible only for the social group-based reservation. However, it should be remembered that changing income limits will make the situation more complex, particularly in the absence of reliable income data. Practically, changing the income cut-off for EWS seems unlikely to many experts.
• The court should carefully consider the implication of adopting different routes and eliminate ambiguities in the reservation rules.

Also read: Economic Empowerment of Weaker Sections

Nut Graf: The implementation of Economically Weaker Section reservation is full of complexity, particularly in terms of overlapping Vertical Reservation categories. The need of the hour is to effectively work out an optimal implementation strategy by carefully analyzing all possible routes.

Category: GOVERNANCE

1. A pathway to citizenship for Indian-origin Tamils

Syllabus: Welfare schemes for vulnerable sections of the society; India-neighbourhood relations.

Mains: Statelessness of Indian-Origin Tamil.

Prelims: Refugee Crisis of Indian Origin Tamils.

Context: Release of a report by the United Nations High Commission for Refugees, titled “Comprehensive Solutions Strategy for Sri Lankan Refugees”.

Details:

• On the basis of technicalities, approximately 30,000 Indian-origin Tamils, over a period of four decades, were classified as stateless persons.
• It is often demanded that the Government of India should extend citizenship benefits to them in accordance with Indian bilateral obligations, international humanitarian principles, and international conventions because they have a genealogical link to India. 

Background details about Indian Origin Tamils:

• The British colonial government sent Indian-origin Tamils to Sri Lanka as indentured labourers for working in plantations there. 
• Due to British policies at that time, they remained both legally undocumented as well as socially isolated from the native Sri Lankan Tamil and Sinhalese communities. 
• Post-1947, Sinhalese nationalism rose in Sri Lanka that left no room for the political and civil participation of Indian-origin Tamils. They did not get citizenship rights and existed as a ‘stateless’ population. Their population rose to nearly 10 lakh by 1960. They were also denied voting rights.
• The bilateral Sirimavo-Shastri Pact (1964) and the Sirimavo-Gandhi Pact (1974) agreed to grant Indian citizenship to about 6 lakh people upon their repatriation. The process of granting citizenship to Indian-origin Tamils (who returned to India till 1982) began. 
• But the Sri Lankan civil war resulted in a drastic increase in Sri Lankan Tamils and Indian-origin Tamils seeking asylum in India. Consequently, the Union Ministry of Home Affairs issued a directive to cease the grant of citizenship to those who arrived in India after July 1983.
• Moreover, the focus of both the Union and Tamil Nadu governments shifted to refugee welfare and rehabilitation. The legal destiny of Indian-origin Tamils became intertwined with that of Sri Lankan Tamil refugees for almost 40 years. Both groups have been assigned the status of ‘refugee’. The reason cited for this is that the Indian-origin Tamils who came to India after 1983 arrived through either unauthorized channels or without any proper documentation. Thus, they were classified as ‘illegal migrants’ according to the CAA 2003. 
• This classification rendered them stateless and blocked all potential legal pathways to attain Indian citizenship.

For more information on India-Sri Lanka relations, read here: India – Sri Lanka Relations

Overcoming Statelessness:

• The constitutional courts of India have not dealt with the issue of statelessness yet, but there were two recent judgments of high courts that have taken up the issue: 
  • P. Ulaganathan vs Government of India case (2019)
    • In the P. Ulaganathan vs Government of India case (2019), the status of citizenship of Indian-origin Tamils at the Kottapattu and Mandapam camps was considered. 
    • The court distinguished between Indian-origin Tamils and Sri Lankan Tamils.
    • It held the view that a continuous period of statelessness of Indian-origin Tamils is against their fundamental right under Article 21 of the Constitution of India. 
    • The court also held that the Union Government has implicit powers to grant relaxation in conferring citizenship and suggested that a humanitarian approach should be adopted to deal with the matter.
  • Abirami S. vs The Union of India 2022
    • In this case, the court held that statelessness should be avoided. 
    • It also suggested that the principles of the CAA, 2019, which relaxes the conditions for citizenship for Hindus from Afghanistan, Pakistan, and Bangladesh, should be expanded to Sri Lankan Tamil refugees. 
• The above judgments have provided categorial judicial guidance to the Union of India on expanding and interpreting the CAA, 2019 more liberally thereby overcoming statelessness.
• De Jure Statelessness
  • The statelessness issue of Indian-origin Tamils is ‘de jure’ and is created from the implementation failure of the 1964 and 1974 pacts. 
  • International customary law recognizes De jure statelessness. Thus, it is obligatory on the part of India to remedy the issue. 
  • In the Chakma refugees case, the Supreme Court (Committee for C.R. of C.A.P. and Ors. vs State of Arunachal Pradesh 2015) directed that an undertaking by the Government of India with respect to the grant of citizenship inheres a right in the stateless or refugee population. 
  • As India has made repeated undertakings in the pacts of 1964 and 1974, it has created a legitimate expectation among the Indian-origin Tamils and made them eligible for citizenship. 
• A similar situation occurred in the United States of America in 1994, where the Immigration and the Nationality Technical Corrections Act was enacted to grant citizenship to all children born to an alien father and citizen mother retroactively. 
• Brazil also through its Constitutional Amendment No. 54 of 2007 retroactively granted citizenship to children under jus sanguinis. These children were stripped of their citizenship rights by an earlier amendment (Constitutional Amendment No. 3 of 1994).
• On similar lines, India should also eliminate statelessness and retroactively grant citizenship to  Indian-origin Tamils by corrective legislative action.

Also read: Civil war in Sri Lanka: Background, Causes and Result

Nut Graf: Indian government should sensitively look at the matter of Indian-origin Tamils and consider granting them citizenship of India. It should take into account the pacts of 1964 and 1974 along with the Citizenship Amendment Act of 2019 that extends citizenship to Hindus from Afghanistan, Bangladesh, and Pakistan.

Q1. Which of the following statements is/are correct? (Level-Moderate)

Q2. Which of the following statements is/are correct? (Level-Easy)

Q3. The term ‘Tiangong’, seen frequently in news, refers to - (Level-Easy)

Q4. Who amongst the below-given freedom fighters were charged by the British under Section 
124A of the Indian Penal Code (IPC)?  (Level-Difficult)

Q5 Which one of the following foreign travellers elaborately discussed diamonds and diamond 
mines of India? (CSE-PYQ-2018) (Level-Moderate)

I. UPSC Mains Practice Questions

1. Elaborate on the underlying issues with the 103rd constitutional amendment act, which have marred this reform with controversies. (250 words; 15 marks) [GS2, Polity]
2. The success of MGNREGA in the coming years would depend upon how much autonomy is given to the local governments to implement the scheme. Comment. (250 words; 15 marks) [GS2, Governance]