7.7 |
Fulfilling
Reservation and its Object |
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7.7.1 |
Reservation
of appointments of posts in the services
under the State as defined in Article
12 of the Constitution and as interpreted
by the Supreme Court from time to
time, so as to include public sector
undertakings, public financial institutions,
universities etc., is one of the important
instruments of Social Justice. It
has not been implemented in a fully
satisfactory manner. The following
measures are required as a built-in
mechanism to ensure full and total
compliance with the policy of reservation
for Scheduled Castes and Scheduled
Tribes and for quick judicial adjudication
redressal of complaints and grievances
in this regard: |
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7.7.1.1 |
Reservation
should be brought under the purview
of a statute by enacting an Act to
be named as Scheduled Castes and Scheduled
Tribes (Reservation of Appointments
or Posts and of Seats in Educational
Institutions) Act, 1996, which will
provide for all aspects pertaining
to reservation for STs and STs. |
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7.7.1.2 |
A
Bill on the anvil for the last one
or two years has got stuck because
it covers BC also and there are
some issues pertaining to BCs on
which there are different opinions
which are taking time to resolve.
Since there are no such issues in
the case of SC and ST, and in view
of the specificities of reservation
for SC and ST in existence since
many decades and of the recently
introduced reservation for BC at
National level, it is desirable
to separate the bill for the SC
and ST and get it quickly passed,
and process the issues involved
in BC reservation separately and
thereafter get the bill for BCs
passed as early as possible. |
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7.7.1.3 |
This
Act should include provisions to set
up Arakshan Nyay Adalats or Tribunals
for Justice in Reservation with its
main Bench in Delhi and other Benches
in every place where the CAT has got
Benches, and should be of the status
of a High courts with appeal lying
only to the Supreme Court as in the
case of the CAT; and should also contain
the penal provision; Both these provisions
were there in the Bill drafted by
the Ministry of Welfare and sent up
in 1990. |
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7.7.1.3 |
This
Act should include provisions to set
up Arakshan Nyay Adalats or Tribunals
for Justice in Reservation with its
main Bench in Delhi and other Benches
in every place where the CAT has got
Benches, and should be of the status
of a High courts with appeal lying
only to the Supreme Court as in the
case of the CAT; and should also contain
the penal provision; Both these provisions
were there in the Bill drafted by
the Ministry of Welfare and sent up
in 1990. |
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7.7.1.4 |
It
appears that these two important aspects
have been missed in the Bill now under
process; they should now be included
in the Bill for SC and ST and in the
Bill for BC. |
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7.7.1.5 |
The
Chairperson, Vice-Chairperson and
other members of this Adalat and its
Benches should be appointed from panels
of persons who, while possessing the
requisite formal qualifications for
a High Court level body as in the
case of the CAT, should in addition
necessarily have the qualification
of having implemented reservation
fully and sincerely in their respective
areas of earlier activity; |
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7.7.1.6 |
Reservation
for SC and ST should be continued
in disinvested PSUs and inclusion
of this stipulation should be made
in future as well as past MoUs. On
account of the artificial boosting
of the percentage of SC and ST in
PSUs, following the VRS, accepted
mostly by non-reserved category officers,
and consequent closure of avenues
of promotion through reservation in
promotion and other benefits for SC
and ST, eligibility for such reservation
and benefits should be based on the
pre-VRS percentage of SC and ST in
each cadre of the PSUs. |
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7.7.1.7 |
Every
Post reserved for Scheduled Castes
and Scheduled Tribes both in direct
recruitment as well as in promotion
should be filled up promptly and should
not be allowed to remain vacant or
dormant or to lapse and any failure
in this regard should also be covered
by the penal provisions in the Act
referred to above; |
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7.7.1.8 |
Reservation
should be provided for SC and ST in
the Private Sector. The US relevant
concept of “affirmative action”
is not relevant to India, where it
is being used as an alibi to avoid
reservation. If the private sector
were willing to bring in SC and ST
at above shop floor levels they would
have been done it long back. It is
not realistic to expect that they
will now do voluntarily what they
have avoided/evaded till now. Ultimately
legislation will become inevitable.
Even if government has given them
some specified time for voluntarily
fulfilling this, it is desirable to
enact the requisite Constitutional
Amendment now itself in preparation
for the inevitable. |
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7.7.1.9 |
While
awaiting decision on reservation in
private sector, without waiting for
it, it is necessary to secure the
immediate absorption by the private
sector, of all of the many existing
SC and ST products of IITs, IIMs and
similar Institutions, who have secured
high marks of 60% or above and have
still not been taken up for employment
by the Private Sector on account of
personal social prejudices, masqueraded
as concern for merit; simultaneously,
Government of India should set an
example by finding placement for all
SC and ST products of IITs, IIMs and
other similar Institutions of excellence,
who have passed with less than 60%.
First lists of such candidates are
readily available. |
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7.7.1.10 |
In
view of the recent threats to reservation
for SC and ST, the following measures
are necessary to protect them future
onslaughts by those who have not cared
to understand the social and historical
background of the caste system with
specific reference to SC and ST, and
to ensure the smooth progress of Social
Justice measures including Reservation
in order to achieve the Constitutional
goals of Equality and Justice, the
existing Constitutional provisions
need to be strengthened, and to that
end the following amendments are necessary: |
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(i) |
Amend
the Constitution to insert a declaration
that there cannot be a “Creamy
Layer” in Dalits as the criterion
of the identification of SCs is “untouchability”
and until “untouchability”
disappears, that concept has no relevance
to them; and similarly, the criterion
for STs is also not social backwardness
but criteria like tribal identity
and tribal isolation and similar factors. |
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(ii) |
At
the end of Art. 46, the following
should be added: |
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“,
and it shall be the right of the weaker
sections of people and, in particular,
of the SCs and STs, that the State
and all institutions of or created
by or promoted by or assisted by the
State, shall at all times function
fully and totally in accordance with
this right, shall take every measure
required to fulfill this right, and
shall not take any measure the effect
of which will be contrary to it.” |
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(iii) |
To
preclude scope for misunderstanding/
misconstruction of the subordinate
phrase to dilute the mandate of reservation
in the principal clause, that subordinate
phrase should be deleted from Art.
335. |
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(iv) |
Art.
335, and not Art. 16(4), is the real
source of the Right of SCs and STs
to reservation. In the Constitution,
SCs and STs are referred to as SC
and ST only and not by terms like
Backward Classes. Articles of Part
XVI have got as much force as Articles
in Part III. However, to preclude
scope for misunderstanding/misinterpretation,
Art. 335 should be transferred from
Part XVI to Part III and numbered
as new Art. 16(4), renumbering existing
Clause (4) as Clause (5), which is
the source of reservation for the
category referred to in Constitution
more commonly as Socially and Educationally
Backward Classes (SEdBCs), and variantly
also as Other Backward Classes (OBCs)
and as Backward Classes (BCs). The
commoner term may be substituted for
“any backward class of citizens
in line with Art. 340(1) and Art.
15(4). |
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(v) |
While
the new Clause (4) will be automatically
mandatory as Art. 335 is mandatory;
Clauses (4A), (4B) and the re numbered
Clause (5) of Art. 16 and Clauses
(4) and (5) of Art. 15 also should
be made mandatory. Reservation is
not a permissible matter left to the
State sweet will. It is recognised
that Equality is a basic feature of
Constitution. Equality includes Social
Equality. From this flows removal
of inequality including social inequality.
It necessitates adoption of Social
Justice measures for removal of social
inequality in all spheres and fields
and at all levels, including importantly
Reservation. All these together constitute
an important basic feature of Constitution.
The Constitution permits the State
no option to avoid any of these measures
including Reservation. To preclude
doubt and scope for interpretational
conflicts, these clauses of Articles
15 and 16 need to be made mandatory. |
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(vi) |
In
List III of Seventh Schedule it is
necessary to include three entries
for the “Development, Welfare,
Protection and Empowerment of SCs
& STs; SEdBC/ OBCs/BCs including
those of religious minorities; and
women.” |
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(vii) |
Backlog
should be correctly interpreted to
mean the difference between the number
of SC and the number of ST required
in each cadre in terms of the prescribed
reservation percentages and actual
number of genuine SCs and STs present,
cadre-wise; and backlog so interpreted
should be expeditiously filled up
in a planned manner as illustrated
in an earlier section regarding the
SC gap in Group ‘A’ services |
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| 7.7.1.11 |
The three Constitutional Amendments
enacted to nullify three of the anti-reservation
O.M.s of 1997 should be fully and
immediately implemented. |
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7.7.1.12 |
Limitation
of reservation in promotion only to
first level of Group-I should be removed
and its scope extended to the highest
levels. The present limitation is
unwarranted by the wording and purport
of the new Clause (4A) of Art. 16. |
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| 7.7.1.13 |
Executive order should be issued to
restore pre-1997 Roster, in which
SC and ST were in the 1st and 3rd
positions, distorted in 1997 by misinterpretation
of the Supreme Court’s Sabharwal
Judgment pushing SC and ST down to
7th and 13thpositions. |
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| 7.7.1.14 |
Reservation should be extended to
areas from which it has been excluded
so far. Out of them, regarding higher
judiciary, at least the pragmatic
recommendation of the NCRWC may be
followed. There is no difficulty in
locating the few scores of SCs and
STs not only possessing the prescribed
qualifications but objectively in
no way inferior in qualities required
for a judge to those who are now on
the benches. It is possible to bring
to the benches the benefit of varied
experiences of persons with background
of SC and ST, without diluting the
quality of the honoured benches. Dalits
are one with nation in wanting that
the quality of the benches of the
superior courts should be the highest
in all respects and they are confident
that they can contribute to this goal. |
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| 7.7.1.15 |
Backlog should be interpreted correctly
as the difference between the numbers
of SC and ST required to be in each
cadre on the basis of reservation
percentage prescribed and actual numbers
of SC and ST present; such backlog
should be expeditiously cleared by
systematically planned and executed
operations. |
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7.8 |
Dalit-Friendly
Personnel Policy |
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7.8.1 |
Many
areas of the development and protection
of SCs and STs need the active contribution
of the official machinery. There had
been the phenomenon of over-administration
in areas and sectors pertaining to
the affluent and rich classes, but
there has simultaneously been under-administration
in areas pertaining to SCs and STs
and other weaker sections. In view
of this a Dalit-friendly personnel
policy has to be created. A personnel
policy should be drawn up, of which
the following should be the ingredients: |
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7.8.2 |
Officers
of the IAS and other services directly
or substantially relevant to Scheduled
Castes and Scheduled Tribes will find
it possible to advance their career
only by working for at least a periods
of five years in areas and sectors
directly or mainly pertaining to Scheduled
Castes and Scheduled Tribes, at grass-root
level, executive level and policy
level and none of them will be allowed
to get posts in generally coveted
areas and sectors, like Commerce,
Economic Affairs, Industries etc.,
without acquiring this qualification; |
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7.8.3 |
Simultaneously
it will be ensured that those who
voluntarily devote the major part
of their service to areas and sectors
wholly or mainly pertaining to Scheduled
Castes and Scheduled Tribes shall
not hereafter be losers in their career; |
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7.8.4 |
Provision
of protection from persecution by
powerful persons inside and outside
Government for honest officers/employees
of all ranks working sincerely for
the development and protection of
Scheduled Castes and Scheduled Tribes; |
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7.8.5 |
ensuring
that service in tribal areas does
not put any public servant to any
disadvantage in the matter of net
family income or the education of
the children; |
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7.8.6 |
Provision
of a formula of accelerated promotion
for those who spend at least five
years continuously in areas and sectors
directly or mainly pertaining to Scheduled
Castes and Scheduled Tribes. |
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7.8.7 |
Provision
for “Social Justice Clearance”
(just like “integrity clearance”)
before an officer of Class-I or Class-
II is promoted. |
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