Reality Check India

The Gujjar issue needs baby scrutiny

Posted in Uncategorized by realitycheck on May 25, 2008

I am back after a break. I was stunned at the stand of the Supreme Court that it will not get involved in strict scrutiny of legislative action.  I thought this pretty much settles hope for rational debate on pretty much any subject.

Issue : The state just killed 35 Gujjars who were protesting against a system that denies them the same rights that other groups in similar situations took for granted.

The complete freedom of the various entitlement and caste based programs from any data or accountability is going to cost the country dearly.

You really cannot blame Bainsala for asking : “Why cant we have what the Meenas have ? ”  He has been asking this legitimate question for a peacefully long time now.  Coming to think of it, most of us are probably wondering the same thing.

Any answers ?

Hint : Dont try too hard.

Previous coverage :

No ST for Gujjars , Issue is way bigger than Raje , 14 Gujjars dead for want of data,

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19 Responses

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  1. Barbarindian said, on May 26, 2008 at 4:58 am

    RC,

    Welcome back.

    The Gujjars may be entitled for status, but who will bell the cat?

  2. Reason said, on May 26, 2008 at 7:10 am

    i am happy bjp got this close in karnataka. They should get 3-4 JD-S MLAs to resign from the assembly right away. This is the game congress played in Goa repeatedly, and they will play it in karnataka. You can expect them to work on getting 3 BJP MLAs to resign as soon as ministry making is over. BJP needs to preempt that.

    >> I was stunned at the stand of the Supreme Court that it will not get involved in strict scrutiny of legislative action.

    I did not read the judgment. I was too depressed to go that way. But if they indeed said they will not involve in strict scrutiny of legislative action, they need to define ‘strict’ for starters.

    9th schedule judgment guaranteed to the citizens that the supreme court will do its constitutionally entrusted job of guarding the constitution against legislative transgresses.

    I repeat – I have not read this latest reservation judgment. I may never. I dont know the context in which the ‘strict scrutiny’ was said. That said, I will paste some sections from the 9th schedule judgment –

    “It is the duty of this Court to uphold the constitutional
    values and enforce constitutional limitations as the ultimate
    interpreter of the Constitution.”

    “The distinction is drawn by the author between making
    of a Constitution by a Constituent Assembly which was not
    subject to restraints by any external authority as a plenary law
    making power and a power to amend the Constitution, a
    derivative power derived from the Constitution and subject to
    the limitations imposed by the Constitution. No provision of
    the Constitution framed in exercise of plenary law making
    power can be ultra vires because there is no touch-stone
    outside the Constitution by which the validity of provision of
    the Constitution can be adjudged. The power for amendment
    cannot be equated with such power of framing the
    Constitution. The amending power has to be within the
    Constitution and not outside it.”

    “As already stated, in Indira Gandhi’s case, for the first
    time, the constitutional amendment that was challenged did
    not relate to property right but related to free and fair election.
    As is evident from what is stated above that the power of
    amending the Constitution is a species of law making power
    which is the genus. It is a different kind of law making power
    conferred by the Constitution. It is different from the power to
    frame the Constitution i.e. a plenary law making power as
    described by Seervai in Constitutional Law of India (4th Edn.).
    The scope and content of the words ‘constituent power’
    expressly stated in the amended Article 368 came up for
    consideration in Indira Gandhi’s case. Article 329-A(4) was
    struck down because it crossed the implied limitation of
    amending power, that it made the controlled constitution
    uncontrolled, that it removed all limitations on the power to
    amend and that it sought to eliminate the golden triangle of
    Article 21 read with Articles 14 and 19. (See also Minerva
    Mills case).”

    (note – article 329-A(4) was inserted in amendment 39 to place the election of persons holding prime minister or speaker positions beyond judicial review.)

  3. Saakshi said, on May 27, 2008 at 2:20 am

    Definitely a dicy matter, much like inflation would be because even the opposition would struggle with it.
    My opinion on the issue is that, Raje should continue playing clean and keeping order. Make the Chopra recommendations and other packages given to the gujjars, open to public. Seek the cooperation of the opposition, and show just how irrational their claim to ST status is.

  4. realitycheck said, on May 27, 2008 at 5:33 am

    >> Seek the cooperation of the opposition, and show just how irrational their claim to ST status is. >>

    Why is their claim to ST status irrational ?

    They are just taking it to the streets. Is this not how the system is supposed to work ?

  5. realitycheck said, on May 27, 2008 at 5:42 am

    >> I did not read the judgment. I was too depressed to go that way. But if they indeed said they will not involve in strict scrutiny of legislative action, they need to define ’strict’ for starters. >>

    It appears, the bench got really worked up over the comparison with the American system (which guarantees the so called “due process” before fundamental rights are curtailed). Apparently the American law does not apply to India.

    Since we are not going to subject the system to data based scrutiny. The Gujjars are just taking it to the streets, like it is supposed to be done. Isnt that the correct way ? Isnt that how the MBC category got created in TN ? Nineteen youth had to be shot dead at that time.

  6. Reason said, on May 27, 2008 at 8:24 am

    >> Apparently the American law does not apply to India.

    but would the ninth schedule judgment, and judgments preceding that like indira gandhi case, not apply?

    i think there is scope and hope for further judicial process on reservations.

    The present UPA arrangement has way too much OBC hegemony. They set a bad precedent – they get their power because they got their community OBC or MBC status. That is a bad influence on the entire issue.

  7. wordlyaffair said, on May 29, 2008 at 9:04 am

    Of course their claim is not valid, the Chopra commission findings say that. They have gone over the socio-economic status of the community and made their recommendations. Instead they have recommended that a relief package be given to them and that was done. Ms. Raje has done the requisite justice.
    http://wordlyaffair.wordpress.com/2008/05/28/ms-raje-shows-the-way/

  8. realitycheck said, on May 29, 2008 at 9:28 am

    wordlyaffair,

    We have covered the Justice Chopra report in this blog in the past.

    See https://realitycheck.wordpress.com/2007/12/18/no-st-status-for-rajasthan-gujjars/

    Dont forget the report says : “under the criteria for ST status in the constitution, prescribed 60 years ago, hardly any group will qualify today”

    In other words, the whole thing is messed up. So why should Gujjars miss out on the party ?

  9. wordlyaffair said, on May 29, 2008 at 9:34 am

    Messed up or not, the constitution needs to be respected. They are actually already partying with an OBC status and the party ends there. They can not arm twist the government into acting against the constitution. Or rather they should not.

  10. reason said, on May 29, 2008 at 5:33 pm

    http://www.hindu.com/thehindu/holnus/000200805292174.htm

    Bainsla says reservation system needs a relook.

    “He said no review had so far taken place about the extent of benefit to castes enjoying the reservation.

    Such an exercise should be undertaken to exclude castes which have benefitted by it and bring in its purview those castes which “deserve and require” quota, the Gujjar leader said. “

  11. wordlyaffair said, on May 30, 2008 at 5:16 am

    This comment of Mr. Bainsla I agree with. He is probably right that we should relook and revise the way we have been giving reservations all along. It is high time we took stock. And after that if it should be then let them have it.

  12. reason said, on May 30, 2008 at 5:56 am

    >> He is probably right that we should relook and revise the way we have been giving reservations all along. >>

    If he is right, then we also need to ask why the constitutional authorities who had the duty to do this abdicated their responsibility.

  13. Cupid said, on May 31, 2008 at 2:57 am

    There is a good reason that strict scrutiny does not apply. It was a standard evolved in the US to deal with legislation that likely fell foul of the 14th amendment. In India, however, there are provisions in the constitution (both under Art. 15 and 16) that expressly allow special provisions for certain groups under certain circumstances. No such thing exists in the American constitution. So the applicability of the same standard in a different constitutional context was always questionable.

  14. realitycheck said, on May 31, 2008 at 4:17 am

    >> are provisions in the constitution (both under Art. 15 and 16) that expressly allow special provisions for certain groups under certain circumstances. >>

    Sure, but ..

    The provisions in the constitution are enablers. The policy itself may not be subject to strict scrutiny because it enjoys sanction whether or not it works. In practical terms, this means you cant jettison the quota system itself even if you empirically proved it didnt work. I am not even sure if a constitutional amendment to remove the quota system would pass (it can be argued to be part of our basic structure). Strict scrutiny against the system per-se does not work. I will concede this.

    However, who enters the “club” must be subject to “strict scrutiny” or atleast “rational basis” test. There are no provisions in the constitution that says specific communities X,Y,Z are to be protected (except the case of ST and SC). There are no provisions in the constitution that sanctions community X to overwhelm community Y and Z who are categorized together.

    Alas, terms like strict scrutiny and rational basis have acquired the tag of being American concepts and not merely concepts of universal justice.

  15. Saakshi said, on May 31, 2008 at 5:43 am

    I agree the reservation policy review is a very necessary thing and the authorities should be held for not doing it. It is doubtful if the NDA would do it when they come as well.
    I would consider any action taken should be correct and not to satisfy the gujjars. A detailed review and the revamp of the reservation policy would be a welcome move, but the recommendations should be taken at face value, I would think that if any efforts are taken to pacify the gujjars with more doles, it would be rather unfortunate. And this would set of a dangerous trend in the country, the same way that the jats becoming obc instigated the gujjar revolution.

  16. anonymous coward said, on June 14, 2008 at 1:35 pm

    Look what we have here:

    http://www.ibnlive.com/news/iitdelhi-sacks-12-scst-students-under-probe/67114-3.html

    The face of things to come.

  17. Observer said, on June 15, 2008 at 8:32 am

    As correctly predicted by many, including RealityCheck, the so-called creamy layer exclusion by the Supreme Court is being rendered all but pointless. The following article states that the income limit may be raised by the NCBC to more than 6 lakhs/annum. Also, real estate holdings, including agricultural land, are going to be exempted from the income limit. This should now pretty much include all so-called OBCs, except for a very tiny fraction. Tamil Nadu style reservations coming to the national level.

    Next stop, reservations in the private sector. 100 years hence, breakup of India into many smaller states after Gujjar style agitations spread to more and more caste groups.

  18. Observer said, on June 15, 2008 at 8:34 am

    Sorry, the link for the above comment is related to the following news story:

    http://economictimes.indiatimes.com/PoliticsNation/Creamy_layer_Revised_ceiling_soon/articleshow/3130643.cms

    —————————————————————————————————————
    NEW DELHI: In a move that could end the debate over classification of creamy layer among the OBCs, the National Commission for Backward Classes is expected to give its recommendations to the government by June 30 on the revised income ceiling for their eligibility for reservation.

    Acting on a government directive, the NCBC has obtained suggestions from commissions from 20 states on the income ceiling of the creamy layer and is in the process of getting similar views from other eight states.

    Most of the state commissions have recommended revision of the income limit for creamy layer classification from Rs 2.5 lakh to Rs 4 lakh to Rs 6 lakh.

    The recommendations were made at a conference of the NCBC and state backward commissions held here recently.

    The conference was attended by representatives of 20 state commissions. At least 40 per cent of the representatives of the state commissions had not come with official recommendations and have promised to get back, NCBC member Abdul Ali Azizi said.

    Azizi said the views of those states, which could not attend the meeting, will be taken via correspondence while others have been directed to send their officials’ recommendation to NCBC by June 25.

    The NCBC will be sending its recommendation to the central government by June 30 on the basis of views that are available by that date.

    The recommendations will help the government to define the income limit for the creamy layer among the OBC, setting at rest a debate on the issue.

    The creamy layer among the Other Backward Classes (OBCs) on the basis of annual income was defined in 1993 with the ceiling fixed at Rs one lakh. It was later revised to Rs 2.5 lakh in 2004.

    The creamy layer cannot claim benefits, including reservation in jobs and professional courses, that are available to the OBCs.

    At the recent conference involving the NCBC and the state backward commissions, Karnataka demanded ten-time rise in the ceiling from Rs 2.5 lakh to Rs 25 lakh, while Madhya Pradesh demanded that it be fixed at Rs 10 lakh, four times more from the existing level.

    Most of the other states recommended a ceiling of Rs 4 lakh to Rs 6 lakh.

    Some of the members also suggested that properties that yield no income should not be included for deciding creamy layer. This includes real state properties, which give no earning and the agriculture land, where no cultivation is taking place.

  19. […] Gujjar issue needs baby scrutiny […]


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