RESERVATIONS IN PROMOTIONS

RESERVATIONS IN PROMOTIONS

Why in News?

The Central Government has demanded for a review of 2018 Supreme Court Verdict in Jarnail Singh vs Lachhmi Gupta Case, related to reservations in promotions for SC/ST about creamy layer in Promotions.

RESERVATIONS IN PROMOTIONS

Waiting for the verdict | Reservations in promotions for SC/ST

Background

Nagaraj vs Union of India Case (2006)

The Supreme Court upheld the constitutional validity of reservations for SCs and STs to include promotions with three conditions:

  1. Quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST)
  2. The facts about their inadequate representation
  3. The overall administrative efficiency

What is Creamy Layer

  • The concept has its genesis in the Indira Sawhney Case (1992). Supreme Court asked the Government to define the criteria by fixation of income, property or status.
  • Currently creamy layer criteria is applicable to Other backward classes (OBCs) in reservation.
  • At present, Group A and Group B officers of both Central and State Government, Employees of Armed Forces and PSUs along with people earning more than 8 lakh per annum come under the purview of Creamy layer.

Center’s Contention about reservations in promotions for SC/ST:

The Center approached supreme Court that the verdict in the M Nagraj case put unnecessary conditions in granting quota benefits, as it affects the reservations in promotions for SC/ST.  Thus, In Jarnail Singh vs Lachhmi Gupta Case (2018) Supreme Court allowed for grant of quota for promotions in the government jobs to SCs and STs without the need to “collect quantifiable data”. The court also asked the government to examine the possibility of introducing creamy layer for Scheduled Castes (SCs) and Scheduled Tribes (STs) by saying that if some sections bag all the coveted jobs, it will leave the rest of the class as backward as they always were.

  • It declined the demand to refer the case to a 7 judge bench to reconsider its 2006 Nagaraj judgement.
  • Now, the union government has urged the court to reconsider the ruling and refer the issue to a seven-judge Bench.

Arguments for applying the Creamy Layer concept to SCs/STs

  • Improved income and status: The creamy layer within the SCs and STs has improved socio-economic mobility and by that virtue does not face discrimination of similar intensity.
  • Article 335: It states that Affirmative action should be subject to the overall efficiency of Public Administration. Reservation in promotions may affect the merit-based culture of the organization.
  • Prioritizing most marginalized: Supreme Court in Jarnail Singh Case Judgement noted that the benefits, by and large are snatched away by the top creamy layer of the backward caste or class, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.

Arguments for not applying the Creamy Layer concept to SCs/STs

  • Discrimination within service: It is argued that there is widespread discrimination within services. For example, there are about 12,000 cases lying with the SC/ST Commission, complaining about discrimination in service.
  • Not Anti-poverty programme: Reservation for Dalits is not to undo economic backwardness but as a remedy for societal discrimination based on untouchability. Thus, it may not possess a direct correlation with economic status.
  • Difference between OBCs and SCs: OBCs don’t face the kind and extent of discrimination faced by SCs. Generally, if OBCs manage to cross a certain economic threshold, the extent of social discrimination reduces substantially.

Way Forward

  • Consultative Approach: Reservation is a very sensitive topic, thus any decision on it should be in consultation with all the stakeholders.
  • Strengthening Other tools: like encouraging Dalit Entrepreneurship, providing loans (E.g. Stand-up India Scheme), Increasing awareness etc. can also indirectly improve the Socio-Economic mobility of Dalits.

 

Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, 2019

Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, 2019

On November 5, 2019 President Ram Nath Kovind given his assent. It was on 25th September, the NDA government cleared the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015 and sent it to President Pranab Mukherjee for his assent.

Contents

  • Background
  • Salient Features
  • Why this bill needs President’s assent?
  • Gujarat Government’s View
  • Is this law different from existing anti terror laws?
  • Why there is controversy?
  • Are states competent to make laws on National Security?

Background

The bill was initially introduced in 2003 in the Gujarat Assembly when Narendra Modi was chief minister of Gujarat. It was returned back earlier twice in 2004 and 2008 by then Presidents A.P.J. Abdul Kalam and Pratibha Patil.

The Then President Dr.A.P.J. Abdul Kalam didn’t Give His Assent Because Of Few Controversial Points Which Are Listed Below.

  1. Delete Clause 16 – Clause 16 relates to the confession made before a police officer being admissible in court
  2. Substitute the word “may” for “shall” after the words Special Court occurring in clause 20(2) and bring the proviso in line with the proviso to Section 43 D (2) of the Unlawful Activities (Prevention) Act(Amendment), 2008, – Clause 20 (2) deals with the extension of the detention period
  3. Amend Clause 20(4) to bring it in conformity with Section 43 D (5) of the UAP (Amendment) Act – Clause 20 (4) deals with the powers of the court to grant bail.

Salient Features

  • Section 3 of this bill talks about various punishments for organized crime and terrorist activities. The punishment for any terrorist activity which may result into death of any person is death or life imprisonment; and a fine of Rs. 10 Lakh. The act provides varying amounts of punishments for persons related to any organized crime syndicate.
  • The bill makes provisions for attachment and forfeiture of property of a member of organized crime syndicate under Section 4.
  • It establishes special courts for trial of the terrorists under Section 5.
  • Section 14 of this bill says that evidence collected through the interception of wire, electronic or oral communication under the provisions of any other law shall be admissible as evidence against the accused in the Court.
  • Section 15 says that if the accused has any unaccounted property, it will be deemed to be or derived by his illegal activities. Further, if the accused has abducted any person, it will be deemed to be for ransom.
  • Section 16 of this bill is most controversial. This section makes confessions before police officers admissible in court as evidence against the accused.
  • Section 18 says that any movable and immovable property related to organized crime or terrorism is subject to forfeiture.
  • The bill provides immunity to the Police officers from legal action done in “good faith”. This provision appears to be draconian.
  • There is no bail and it extends the probe period from 90 days to 180 days.

Why this bill needed President’s assent?

  • Governor can reserve any bill (other than money bill) passed by assembly of a state for presidential assent on his discretion. Since this legislation has provisions overlapping with existent national laws such as Indian Evidence Act; the state needs president’s assent for such bill to become an act.

Gujarat Government’s View

  • This bill is drafted on the lines of Maharashtra Control of Organised Crime Act (MCOCA), 1999. The state government brought the bill over concerns regarding the organized criminal syndicates operating in the states whose activities may perpetuate in macro-terrorism.

Is this law different from existing anti-terror laws?

  • Not substantially. We have Maharashtra Control of Organized Crime Act (MCOCA) in place which had faced similar protests. Further, central acts UAPA (Unlawful Activities (Prevention) Act) 1967 and POTA (Prevention of Terrorism Act)  2002 in place to counter terrorism and organized crime in the country. Under GCTOC, the evidence collected through interception is admissible in court whether of wire, electronic or oral communication. The state government can seek permission for interception 10 days before trial. The MCOCA act has similar provisions though, the permission process is little difficult. In UAPA, the interception provisions and process are same as GCTOC.

Why there is controversy?

  • Any such stringent law faces opposition on account of human rights and fundamental rights. Those who oppose this bill say that it has draconian provisions which can be used suppress dissent. Since there is no bail and person can be detained for 180 days on the basis of phone records, this bill is susceptible to misuse by the government. If investigation recovers arm or explosives from accused or even his fingerprints from the site of incident court may draw adverse inference, unless proven otherwise.

Are states competent to make laws on National Security?

  • It has been argued that the Gujarat state assembly is not competent enough to make such a law on national security, which comes under purview of the union government. The Gujarat assembly has passed the bill backing it with the argument that “Public law and order” is a state subject. We note here that Article 245 and 246 of the Constitution along with seventh schedule demarcate the law making power of union and states. In the seventh schedule, it doesn’t expressly mention “terrorism” , however, Parliament has powers to make laws related to defense of the country. Also, the Union parliament has residual powers to make laws on matters not listed anywhere in seventh schedule. On the other hand, the state legislatures have exclusive powers to make laws on “public order”. Further, “criminal law” and “criminal procedure.” are concurrent subjects on which both union and states have power to make laws.

The arguments of those who oppose this act is that the state governments have power to make laws on public order so long it does not relate to national security; while the parliament should deal with the national security issues so long as it does not impinge on public order issues that have nothing to do with national security. We note here that the MCOCA act deals with the organized crime and not terrorism exclusively; and on this ground, Supreme Court held it constitutionally valid when challenged.

Conversely, the GCTOC defines terrorism as an “act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the State …..”

Thus, this particular clause may come in future under Supreme Court scrutiny and may be strike it down as unconstitutional.

 

Citizenship Amendment Act, 2019

Introduction:

Citizenship Amendment Act, 2019

Citizenship Amendment Act, 2019

The Parliament of India has cleared the Citizenship (Amendment) Bill, 2019 that sought to amend the Citizenship Act, 1955, to grant citizenship to illegal immigrants from Pakistan, Bangladesh and Afghanistan, belonging to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians Religions, if they faced religious persecution there. 

Salient features of Citizenship (Amendment) Act 2019:

Definition of illegal migrants: The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship. The amended provisions of the Act provides that the following minority groups will not be treated as illegal migrants: 

 

  • Hindus, 
  • Sikhs, 
  • Buddhists, 
  • Jains, 
  • Parsis and 
  • Christians 

 

from Afghanistan, Bangladesh and Pakistan. 

However, to get this benefit, they must have also been exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government.

How is citizenship acquired in India and How does the Act seek to change the criteria for determining citizenship? In India, citizenship is regulated by the Citizenship Act, 1955.  The Act specifies that citizenship may be acquired in India through five methods – 

  1. by birth in India, 
  2. by descent, 
  3. through registration, 
  4. by naturalisation (extended residence in India), and 
  5. by incorporation of territory into India.  

The amended provision of the Act specifies that the specified class of illegal migrants from the three countries will not be treated as illegal migrants, making them eligible for citizenship. 

 

Citizenship by naturalization: The 1955 Act allows a person to apply for citizenship by naturalisation if he meets certain qualifications. One of these is that the person must have resided in India or served the Central Government for a certain period of time: 

  1. for the 12 months immediately preceding the application for citizenship, and 
  2. for 11 of the 14 years preceding the 12-month period. For people belonging to the same six religions and three countries, the Act relaxes the 11-year requirement to five years.

Thus, the Act allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years.  For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.  

 

Consequences of acquiring citizenship: The Act says that on acquiring citizenship: 

  1. such persons shall be deemed to be citizens of India from the date of their entry into India, and 
  2. all legal proceedings against them in respect of their illegal migration or citizenship will be closed.

 

Are the provisions of the Amended Act applicable across the country?

 

The Act clarifies that the amendments on citizenship to the specified class of illegal migrants will not apply to certain areas. 

 These are: 

  1. the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and 
  2. the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873.  These Sixth Schedule tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.   Further, the Inner Line Permit regulates visit of all persons, including Indian citizens, to Arunachal Pradesh, Mizoram, and Nagaland.

 

How does the Amended Act change the regulations for Overseas Citizens of India?

 

The Act also amends the provisions on registration of Overseas Citizens of India (OCI). OCI cardholders are foreigners who are persons of Indian origin. For example, they may have been former Indian citizens, or children of current Indian citizens. An OCI enjoys benefits such as the right to travel to India without a visa, or to work and study here.  At present, the government may cancel a person’s OCI registration on various grounds specified in the Act.  In case of a cancellation, an OCI residing in India may be required to leave the country. 

The Amended Act adds another ground for cancelling OCI registration — 

Violation of any law notified by the central government.  However, the amended act does not provide any guidance on the nature of laws which the central government may notify.  The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers.  Therefore, the powers given to the government under the amended act may go beyond the permissible limits of valid delegation. 

 

IS THE DIFFERENTIATION AMONG THE SPECIFIED CLASS OF ILLEGAL MIGRANTS AND ALL OTHER ILLEGAL MIGRANTS REASONABLE?

 

The Act makes only certain illegal migrants eligible for citizenship.  These are persons belonging to the six specified religious communities, from the three specified countries, who entered India on or before December 31, 2014, and do not reside in the Sixth Schedule areas or in the states regulated by the Inner Line Permit states. This implies that all other illegal migrants will not be able to claim the benefit of citizenship conferred by the amended act, and may continue to be prosecuted as illegal migrants. 

There are allegations that the amended act provides differential treatment to illegal migrants on the basis of :

  1. their country of origin, 
  2. religion, 
  3. date of entry into India, and 
  4. place of residence in India. 

Any provision which distinguishes between two groups may violate the standard of equality guaranteed under Article 14 of the Constitution, unless one can show a reasonable rationale for doing so.  The question is whether these factors serve a reasonable purpose to justify the differential treatment.  Therefore, we need to check the Statement of Objects and Reasons (SoR) of the Act. 

STATEMENT OF OBJECTS AND REASONS (SOR): 

While the Statement of Objects and Reasons (SoR) in the Act reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, (however, no reason has been provided to explain the inclusion of Afghanistan).  The SoR also states that these countries have a state religion, which has resulted in religious persecution of minority groups. There are thousands of Hindus, Sikhs, Jains, Buddhists, Christians and Parsis who have entered India after facing religious persecution in countries like Pakistan, Bangladesh and Afghanistan without any valid document.

FURTHER ALLEGATIONS :

There are allegations that there are other countries which may fit this qualification. For instance, two of India’s neighboring countries, Sri Lanka (Buddhist state religion) and Myanmar (primacy to Buddhism), have had a history of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively. Therefore, we need to analyse the historical reasons surrounding the Act.

NEHRU LIAQUAT PACT: 

An agreement between the Governments of India and Pakistan regarding Security and the Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan. The need for such a pact was felt by minorities in both countries following the partition, which was accompanied by massive communal rioting. In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.

Some excerpts from the Pact:

“The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the text of the Pact begins.

“Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively,”

Thus summarily under the Pact both the countries agreed as below–

  • Refugees were allowed to return unmolested to dispose of their property.
  • Abducted women and looted property were to be returned.
  • Forced conversions were unrecognized.
  • Minority rights were confirmed.

The Home Minister Shri. Amit Shah, while defending the bill said that while India protected its minorities, Pakistan failed to do so — and it was this wrong that the CAB would now correct. While equal rights are guaranteed to all minorities in India by its Constitution and under the doctrine of Positive Secularism, Indian Judiciary has allowed positive equality to Minorities. And despite that similar provision exists in the Objectives Resolution adopted by the Constituent Assembly of Pakistan, it has adopted State Sponsored Religion and the Constitution of both Pakistan and Bangladesh doesn’t give equal rights religious minorities. Therefore, religious minorities in Pakistan and Bangladesh, do not get equal rights and they are also religiously persecuted in these countries. Therefore, to finish the unfinished Agenda of Nehru Liaquat Pact, the Government of India has passed the Act to correct the historical wrong to persecuted minorities in Pakistan and Bangladesh, that were once the part of Undivided India. However, the reasons for extending the same treatment to minorities from Afghanistan are still unclear.  

Conclusion:

India has to undertake a balancing act here. India’s citizenship provisions are derived from the perception of the country as a secular republic. In fact, it is a refutation of the two-nation theory that proposed a Hindu India and a Muslim Pakistan. Independent India adopted a Constitution that rejected discrimination on the basis of religion and the birth of Bangladesh undermined the idea that religion could be the basis of a national community. Also we need to balance the civilization duties to protect those who are prosecuted in the neighbourhood. 

Muslims are not treated as a Residual Category in Citizenship Amendment Act 2019; they are equal stakeholders in the constitutional history of India. it is just that Muslims have got best protection under the respective constitutions of India, Pakistan and Bangladesh and therefore if still a section of Muslims illegally enters into India, they definitely cannot be termed as persecuted section of their respective country of origin. 

 

P.S. 

While religious persecution is a reasonable principle for differentiation, it may not be articulated in a manner that dilutes the republican and secular foundations of Citizenship in India, and anything in the Act that goes against constitutional morality that is liable to be struck down by the Constitutional Courts of India; and the issues surrounding the Reasonable Classification And Intelligible Differentia, are set to be decided by Hon’ble the Apex Court of India.