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For starters, I don’t intend to be prophetic in my evaluation of the recently concluded Gujjar Community-Rajasthan Government wrangle. However, I cannot help but observe, quite candidly, that the whole situation serves as a dark episode in the history of civil liberty movements in this country. The reasons for such analysis are not too far to seek.

For a moment, let us relive the influence of caste in shaping the political, cultural and even geographical history of India; caste as an index continues to affect our public policy, be it through coalition governments or affirmative action, and hence is a critical determinant of the upward/downward mobility that the Indian citizen attains in life. Central and State Governments, have throughout the course of post-Independent India, engaged in active programmes that seek to mitigate the wrongs of historical discrimination meted out to various castes. One may indeed argue that the whole gamut of events has only recently, acquired a political twang. Caste-based violence still continues to be a haunting reality in rural India, with incidents of isolated and systematic torture frequently surfacing in the news.

Taking such grim reality as the backdrop to this article, it is important that we understand the repercussions of granting ‘special, backward community’ or ‘ST’ status to Gujjars. Not because the additive 5% would increase the ever-burgeoning basket of reservations in the quota system, but because the 5% so granted was the direct and immediate consequence of untoward and violent rebellion against the State. Of course, the million-dollar question is always going to be whether the Govt. was right in granting such privileged status to the community? Nonetheless, the finer aspect of the issue still remains: Was the Govt. right in acquiescing to the violent methods of the Gujjars in granting reservation? The next logical question would then be: Is not the Govt. setting a bad precedent, effectively indicating that ends can be achieved through such caste-based violence? The answer, unfortunately, is a loud and thumping Yes.

(To be continued.)

Great News!

The Reservations case is being transferred to a Constitutional Bench that would begin hearings on the 7th of August. Apparently 15 questions of law would be decided by the Court.

However, on the 31st of this month the Supreme Court would hear the parties on the application of the Impugned Act from this Academic year.

ps: My previous posts on reservations may seen here.

The Supreme Court vacation ended. I now get to come back to my favourite topic ‘reservations’ once again.

On the 17th of July , a Three judge Bench of the Supreme Court sat again to decide on the next steps to be taken as regards to the Centre’s move in increasing the OBC’s by the Central Educational Institutions (Reservation in Admission) Act, 2006 to 27%. From what I heard, Solicitor General Vahanvati decided to give one last shot at asking the Court to allow the Quota to be implemented from this Academic Year itself pending a decision by a Constitutional Bench. There was a great fur ore created by this move and opposing counsels Rajiv Dhawan and Mukul Rohtagi opposed the move by stating that a three judge bench cannot have the power to review a division bench order by Justice Pasayat in May. The Court finally announced;

 

– That the parties are to file their replies as to the Solicitor General’s argument by the 31st of July.

– That the decision to transfer to a Constitutional Bench however would be taken by the end of next week.

 

I mentioned in my previous posts that the Supreme Court seems to be inclined towards the American way when it comes to reservations. If this is true, then this is bad news for those who want reservations in the Country. In late June, the United States SC decided Seattle School Dsitrict, a judgment that has partially overruled Brown v. Board of Education. This means that discrimination on the basis of race in admission of schools is now legal in the United States, with certain checks and balances. In the case the Court presents an idea of affirmative action that is something that the Indian Court has sought to borrow. The idea first arose in Grutter v. Bollinger and California v. Allan Bakke where the Court said that affirmative action, particularly in the admission process in universities, must be “narrowly tailored” to promote diversity, but not in such ways as would discriminate against those excluded from affirmative action because they do not belong to ethnic or racial minorities.

The above makes the stance taken by the Indian courts a lot of more confusing as we don’t know which way the Courts will go when it comes to laying down its judgment. For now, Waiting for the decision as to the Constitutional Bench sitting to come out.

 

On Saturday night, the Government of Rajasthan enforced the National Security Act in eleven of its districts. Most of the news reporters have talked about its imposition but none about its implications. One needs to understand that the Act is basically a ‘preventive detention’ act, one of the greatest legitimate ills in our country. I use the word legitimate because it is a violation that is given sanction to in the Constitution of our country.

The National Security Act, 1980 was imposed under Section 3 (2) which says that if the State government is satisfied that with respect to any person that with a view to preventing  him from acting in any manner prejudicial to the security of the  State or from acting in any manner prejudicial to the maintenance  of Public order, it may impose the Act. In the case of Rajasthan, it was imposed to supposedly prevent the clash between the Gujjars and the Meenas.

But the point is, was the imposition of such a harsh legislation really required? Earlier the District Commissioner of Bharatpur imposed section 144 of the Cr. PC (Prohibition of an Act to prevent public order etc…). Apparently the situation was brought under control in the said district. Our governments have this knack of bringing in the harshest legislations without any understanding of its implications to personal liberty. Such actions more or less have stood the test of time and cannot even be challenged in Court. When there were other options available, then why did the Rajasthan government bring in the NSA? In SR Bommai v. Union of India, the Court held that introduction of emergency powers under the Constitution can be questioned in the Court. The same reasoning should be applied to the NSA.

Preventive Detention in India has unfortunately stood the test of time and its going to be extremely difficult for it to be repealed now. In AK Gopalan’s case, the Court justified preventive detention in the name of maintaining public order. This was later upheld in ADM Jabalpur v. Sivakant Shukla where the Maintenance of the Industrial Security Act (MISA) was upheld. But the point again to be understood is that ‘preventive detention’ under the Constitution was meant to be for the protection of the State and not against some actions ensued by caste wars. The Gujjars and the Meenas may fight, but that doesn’t mandate preventive detention. Executive action without any checks and balances is a toll for destruction of the democratic order. Unbridled powers leads to abuse that violate the very ethos within which they are framed.

I am however given to understand that there have not been many arrests under the NSA in Rajasthan. The gujjars are destroying state property in the State of Rajasthan. Perhaps starting curfews and imposing laws like Section 144 of the code of criminal procedure would have helped more than imposing preventive detention law.

There is a meeting of the Gujjar leaders with the Chief Minister Vasundhara Raje tonight. Hope the meeting ends amicably and the fighting can come to an end.

 – Sachin Pilot, Gujjar leaders meet Rajnath Singh

– Gujjars call for a Delhi bandh on Monday 

 


Fire spreads as Gujjars block the delhi- jaipur highway (Fire Spreads as Gujjars block the Dlehi0 Jaipur Highway)

The struggle of the Gujjars in Rajasthan to be included in the Scheduled Tribes (ST) category is nothing but their quest for being ‘backward’ in the law. Chinappa Reddy J in Vasanth Kumar v. State of Karnataka stated that never has he seen castes fighting for backwardness (in the case of ligayats and vookaligas) and this marked the state of our nation. Similar circumstances have arisen now.

The Gujjars are traditional shepherds found across many states in north and western India. They are both Hindus and Muslims. In places like Himachal Pradesh and Jammu and Kashmir, they have been given the ST identity. Haryana and Rajasthan have sought to keep them in the Other Backward Classes (OBC) category. From what I understand, the tension began when the Jats, a powerful community in Rajasthan were classified as OBCs. The Jats constitute 15% of the population in Rajasthan; their classification by the BJP Government was seen as nothing but a political move by which the BJP gained a lot of support.

 

The procedure for the classification of a scheduled tribe is given in Article 342 of the Constitution. It states

 

342. Scheduled Tribes.—(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

 

Pursuant to this the Constitution Scheduled Tribes Order, 1950 was formed which contains the list of tribes. The Gujjars wanted to be included in that list.

 

But why then would someone want to be included in that list? Are reservations in educational institutions and government offices so tempting that one would sacrifice their identity and status for them? Ironic though, it’s a true state of affairs in this Country of ours. In fact, this situation is perfect for the advocates of anti- reservation to stand up and again raise hue and cry about it. While on one side some amongst us say that there must be reservation in the country to uplift the classes, on the other side we have groups fighting for recognition and that upliftment.

I went through wikipedia and the sources mentioned on Gujjars; and here’s what I could infer:-

a) that the Gujjars are not that economically backward as compared to other tribes in the ST list.

b) There is a lot of vote bank politics involved in their classification as a ST.

c) they were a ‘criminal tribe’ during the british period. (though not an issue now)

 

Development for certain classes of people in the country then has largely become a political issue. Not that it never was. Its just that now constitutional fundamentals and ideals are being mixed with politics. Nani Palkhivala wrote in the Times of India, (26 Jan 1992) after Indira Sawhney v. Union of India,

‘I am sure Mr. VP Singh was sincere when he said that after the Supreme Court judgment in the Mandal case he could die in peace. But his policy has ensured that the nation will not live in peace. The poisonous weed of casteism has been replanted “where it will trouble us a thousand years, each age will have to reconsider it”.

 Its then time for reconsideration of the way reservation is implemented in this country. We are tired of strikes, road blocks and the deaths of people. Violence is being used as a tool for getting demands met. We do not need immediate actions but lasting solutions to such problems.