A Constitution Bench of the Supreme Court on Monday, in a 3:2 majority decision, upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation in government jobs and educational institutions to the ‘economically weaker sections of the society but excludes the ‘poorest of poor’ among Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope.
Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala delivered the majority opinions on the five-judge Bench in an hour-long session which saw the pronouncement of a Constitution Bench judgment live-streamed for the first time. Chief Justice U.U. Lalit, on his last working day, and Justice S. Ravindra Bhat, gave the minority view, which Justice Bhat authored.
On whether reservation on the sole basis of economic criteria violated the Basic Structure of the Constitution, Justice Maheshwari took the expansive view that reservation was an “instrument of affirmative action by the state” and should not be confined to just SCs, STs, SEBCs, and the non-creamy layer of OBCs, but also include “any class or sections so disadvantaged as to answer the description of ‘weaker section’”.
Justice Trivedi noted that “the legislature understands and appreciates the needs of its own people”. The three judges in the majority held that reservation on economic criteria alone did not violate the Basic Structure of the Constitution.
In their minority view, Justice Bhat and Chief Justice Lalit held that though quota on the basis of economic deprivation, destitution and poverty was “per se permissible/valid” and even “constitutionally indefeasible”, the “othering” of socially and educationally disadvantaged classes, including the SC/ST/OBC/SEBC communities, on the ground that they already enjoy the benefits of a pre-existing 50% reservation on the basis of their caste and class origins, would amount to heaping injustice based on their past disability.
He said such an exclusion was simply “Orwellian” as the government’s statistics itself showed that the “bulk of economic deprived section of the society belonged to SC/ST/SEBC/OBC”. He said the SCs make up 38% of the population, STs make up 48.4%, and OBCs constitute 13.86% of the 31.7 crore people living under the poverty line in the country. Forward castes or the unreserved category occupy only 5.85% of the Below Poverty Line (BPL) population.
The petitioners had argued that the exclusion of SC/ST/SEBC/OBC had left only the “middle class” among the forward castes drawing less than ₹8 lakh as annual family income to reap the benefits of the EWS quota.
Justice Bhat said the exclusion from the EWS quota based on social or identity origins struck at the essence of the “Non-Discriminatory Rule” and destroyed the Equality Code of the Constitution. It amounted to a “hostile discrimination” of the poorest members of the society, who were already socially and educationally backward and subjected to caste discrimination.
“The court for the first time in seven decades of the Republic has sanctioned an avowedly exclusionary and discriminatory principle,” he referred pointedly to the majority law which would become the law.
“Our Constitution does not speak the language of exclusion,” Justice Bhat underscored. He said the poorest of poor among SC/ST/OBC/SEBC had been kept out of EWS quota on the delusion that they benefit from the existing 50% reservation and were thus “somehow more fortunate”. The government, Justice Bhat said, believed that including SC/ST/OBC/SEBC members in the EWS quota would bestow them a “double benefit”.
Existing reservation should not be seen as a “free pass to equal opportunity” for these backward classes, he noted, but as a reparative and compensatory mechanism to level the field for those crippled by social stigmatisation.
But Justice Trivedi countered that the 103rd Amendment only created “a separate class of EWS without affecting the special right of reservation provided to SEBCs, STs, SCs and OBCs”. Even the SC/ST/SEBC/OBC members had been treated as a separate category for the purpose of the 50% reservation. Now, they cannot be treated at par with citizens belonging to the general or unreserved category, Justice Trivedi said.
“The Amendment certainly cannot be termed as a shocking, unscrupulous travesty of equal justice. Just as equals cannot be treated as unequals, unequals cannot be treated equally. Treating unequals as equals will offend the doctrine of equality in Article 14,” Justice Trivedi reasoned.
Justice Maheshwari dismissed the argument that the 10% EWS quota would breach the ceiling limit of 50% on reservation. He said the 50% rule formed by the Supreme Court in the Indira Sawhney judgment in 1992 was “not inflexible”. Further, it had applied only to SC/ST/SEBC/OBC communities and not the general category.
In his spirited dissent, Justice Bhat responded that permitting the breach of 50% ceiling limit would become “a gateway for further infractions and result in compartmentalisation”.
However, both Justices Maheshwari and Bhat agreed on the state’s power to make special provisions for implementing reservation in private unaided institutions, including professional colleges. Justice Maheshwari held that the Amendment “cannot be said to violate Basic Structure by permitting the state to make special provisions in relation to admission to private unaided institutions”. Justice Bhat said reservation in institutions where education was imparted cannot “per se be violative of the Basic Structure”. He said the Amendment would be valid were it not for the fact that it excluded the other backward classes.
Need to update NPR again to incorporate changes due to birth, death and migration: MHA annual report
There is a need to update the National Population Register (NPR) again to incorporate the changes due to birth, death and migration for which demographic and other particulars of each family and individual are to be collected, the Ministry of Home Affairs (MHA) has said in its 2021-22 annual report published on November 7, 2022.
The NPR, first prepared in 2010 and updated in 2015 by collecting information of all usual residents of the country has been opposed by many Opposition-ruled States as the register, according to Citizenship Rules 2003 is the first step towards compilation of a National Register of Citizens (NRC). The Union government has clarified on multiple occasions that there was no proposal to compile the NRC as of now.
The report said that the NPR is prepared under various provisions of the Citizenship Rules, 2003, framed under the Citizenship Act, 1955. “In 2015, a few fields such as name, gender, date and place of birth, place of residence and father’s and mother’s name were updated and Aadhaar, mobile and ration card numbers were collected. To incorporate the changes due to birth, death and migration, there is a need to update it again,” MHA said. The NPR that has a database of 115 crore residents is to be updated along with the first phase of Census that has been indefinitely postponed due to COVID-19.
MHA said NPR could be updated through self-enumeration as it is proposed to allow residents to update their own data fields after following some authentication protocols on a web portal.
The report, a compilation of all the achievements and functions of the ministry, however, does not mention the Citizenship Amendment Act, 2019 (CAA). The legislation passed in 2019 that fast-tracks the citizenship of six non-Muslim undocumented communities from Pakistan, Afghanistan and Bangladesh who entered India before December 31, 2014 is yet to be implemented as the rules haven’t been framed yet.
MHA’s annual 2020-21 report had said that CAA is a “compassionate and ameliorative legislation” which does not apply to Indian citizens and “therefore, it does not in any way take away or abridge the rights of any Indian citizen.”
After the CAA was passed, there were apprehensions that if and when a country-wide NRC is done, non-Muslims excluded from the proposed citizens’ register will benefit while excluded Muslims will have to prove their citizenship. The government has denied that CAA and NRC are linked. As many as 83 persons were killed in protest and riots linked to CAA/NPR/NRC from December 2019-March 2020 in Assam, Uttar Pradesh, Karnataka, Meghalaya and Delhi after the CAA was passed.
In the COVID-hit year of 2021, from April-December, as many as 1,414 citizenship certificates were granted to members of non-Muslim communities from Pakistan, Afghanistan and Bangladesh, the report said.
The report said that the Central government delegated its powers to grant Indian citizenship by registration or naturalisation with respect of foreigners belonging to Hindu, Sikh, Jain, Buddhist, Christian or Parsi community from Pakistan, Bangladesh and Afghanistan who entered India on valid passport and visa to Collectors of 29 districts and Home Secretaries of nine States. “The delegation (of powers) will speed up the process of granting Indian citizenship to aforesaid category of migrants as the decision would be taken at local level,” the report said.
As many as 2,439 Long-Term Visas (LTVs) were granted by MHA for minority communities from three neighbouring countries between March-December 2021. “This includes Pakistan (2,193), Afghanistan (237) and Bangladesh (9),” the report said. LTV is a precursor to Indian citizenship.
PILs seeking probe into money-laundering allegations against Soren not maintainable: SC
The Supreme Court on Monday held that public interest petitions filed against Jharkhand Chief Minister Hemant Soren seeking a CBI probe into allegations of money laundering are not maintainable.
Soren had approached the Supreme Court after the State High Court had held that the PILs against him for alleged money laundering through shell companies and obtaining a mining lease was maintainable.
Jharkhand Chief Minister Hemant Soren. | Photo Credit: PTI
The Bench which gave relief to Soren was headed by Chief Justice U. U. Lalit.
“We have allowed the appeals holding that the PILs are not maintainable,” Justice Sudhanshu Dhulia, on the Bench, said. The judgment is yet to be uploaded.
The Supreme Court had earlier stayed the Jharkhand High Court proceedings against Soren while reserving his appeals against the High Court decision for judgment. The PILs against Soren had also alleged violations of provisions of the Representation of People Act.
Taking cognisance of the controversy, the Election Commission of India (ECI) had sent a notice to Soren in May seeking his version on the mining lease issued in his favour while holding the Mining and Environment portfolios.
In its order on June 3, the HC had concluded that the “writ petitions cannot be thrown away on the ground of maintainability”. Prior to that, on May 24, the top court had asked the HC to first hear the preliminary objections on the maintainability of these petitions.
The allegations in these petitions include the setting up of several shell companies to launder money siphoned off from different welfare funds meant for Jharkhand. They allege that Soren and several others were involved in the formation of these shell companies.
Sharma had sought investigation by the CBI and the Enforcement Directorate (ED) into the allegations of corruption, misuse of office and money laundering against Soren. The Chief Minister had strongly denied the allegations levelled against him.
Russian businessman Prigozhin admits interfering in U.S. elections
Russian businessman Yevgeny Prigozhin said on Monday he had interfered in U.S. elections and would continue doing so in the future, the first such admission from a figure who has been formally implicated by Washington in efforts to influence American politics.
In comments posted by the press service of his Concord catering firm on Russia’s Facebook equivalent VKontakte, Prigozhin said: “We have interfered (in U.S. elections), we are interfering and we will continue to interfere. Carefully, accurately, surgically and in our own way, as we know how to do.”
The remark was posted on the eve of the U.S. midterm elections in response to a request for comment from a Russian news site. “During our pinpoint operations, we will remove both kidneys and the liver at once,” Prigozhin said. He did not elaborate on the cryptic comment.
Prigozhin, who is often referred to as “Putin’s chef” because his catering company operates Kremlin contracts, has been formally accused of sponsoring Russia-based “troll farms” that seek to influence U.S. politics.
In July, the U.S. State Department offered a reward of up to $10 million for information on Prigozhin in connection with “engagement in U.S. election interference”. He has been hit by U.S., British and European Union sanctions.
Prigozhin kept a low public profile until recently but has become more outspoken in the course of the Ukraine war, including by criticising the performance of Russia’s generals.
In September he admitted to founding the Kremlin-aligned Wagner Group mercenary group, which is active in Syria, Africa, and Ukraine. Last Friday it opened a defence technology centre in St. Petersburg, a further step by Prigozhin to highlight his military credentials.
Gunathilaka denied bail by local Sydney court, Sri Lanka Cricket suspends him from all forms of cricket
Sri Lankas Danushka Gunathilaka was on Monday denied bail by a local court in Sydney after being charged with sexual assault of a woman while his country’s cricket board suspended him from all forms of the game with immediate effect.
The 31-year-old Gunathilaka, who was arrested in the wee hours of Sunday ahead of the Sri Lankan team’s departure from Australia, attended the hearing via video link in Downing Centre Local Court from Surry Hills cells.
Gunathilaka was handcuffed and wearing a grey T-shirt and blue jeans during his virtual attendance at the hearing, according to a report in ‘Sydney Morning Herald’. His lawyer Ananda Amaranath made a bail application during the “closed court” hearing and magistrate Robert Williams refused it.
“Certainly, we are considering an application to the Supreme Court and that will be done as soon as possible,” Amaranth was quoted as saying in the report. The Sri Lankan team had left Australia without Gunathilaka after being eliminated from the T20 World Cup on Saturday.
Amaranath said he understood “some team officials remained in the country”.
In Colombo, Sri Lanka Cricket (SLC), which has been instructed by the country’s government to launch an enquiry into the incident, suspended him. “The Executive Committee of Sri Lanka Cricket (SLC) decided to suspend national player Danushka Gunathilaka from all forms of cricket with immediate effect and will not consider him for any selection after being informed that Gunathilaka was arrested and charged with sexual assault of a woman in Australia,” the board said in a statement.
“Furthermore, Sri Lanka Cricket will take necessary steps to promptly carry out an inquiry into the alleged offense, and, upon conclusion of the aforementioned court case in Australia, steps will be taken to penalise the said player if found guilty”.
Sri Lanka Cricket said it adopts a ‘zero tolerance’ policy for such conduct by a player and will provide all the required support to the Australian law enforcement authorities to carry out an impartial inquiry into the incident.
The left-handed batter played against Namibia in the first round match of the ongoing showpiece and was out for a duck. Later, he was ruled out of the tournament due to an injury even as the team qualified for the Super 12 stage. The Lankan team finished fourth in Group 1.
According to local media reports, Gunathilaka and the woman were in touch for a number of days after connecting via an online dating app.
Gunathilaka is no stranger to controversies. In 2021, he was suspended by Sri Lanka Cricket for one year after he breached the team’s bio-secure bubble on the tour of England along with teammates Kusal Mendis and Niroshan Dickwella.
The board also handed him a six-month ban in 2018 after he had broken the team curfew. In the same year, Gunathilaka was also suspended after his unnamed friend was accused of raping a Norwegian woman. In 2017, the board suspended him for six limited-overs games after it found out about Gunathilaka missing training sessions and turning up for a game without his cricket gear. He has represented Sri Lanka in eight Tests, 47 ODIs and 46 T20 Internationals.
In Brief:
The Gujarat High Court on Monday took suo motu cognizance of the Morbi bridge collapse incident. The Chief Justice of the High Court said it was a disheartening incident wherein 100s of citizens died an untimely death. The court sought a report from the State in 10 days regarding the steps taken so far. It also sought a status report from the chief secretary and home secretary by next Monday when the matter will come up for hearing. The State Human Rights Commission has also been directed to file a report in the matter by November 14.
Evening Wrap will return tomorrow.
