📰 Centre pushes for quota in promotion for SCs/STs
Cites historical deprivation, calls on Supreme Court to revisit 2006 Nagaraj ruling
•Citing “1000 of years of deprivation” suffered by Dalit communities, the government on Friday began its push for providing “accelerated promotion with consequential seniority” for Scheduled Castes/ Scheduled Tribes (SC/ST) members in public employment.
•Following a 2006 judgment of the Supreme Court, the government cannot introduce a quota in promotion for its SC/ST employees unless they prove that the particular Dalit community is backward, inadequately represented and such a reservation in promotion would not affect the overall efficiency of public administration. The opinion of the government should also be based on quantifiable data.
•The 2006 Nagaraj judgment was pronounced by a five-judge Constitution Bench.
•Now, the government wants another five-judge Constitution Bench led by Chief Justice Dipak Misra to refer the 2006 verdict to a larger Bench for a re-examination. It had said that the 2006 verdict had effectively created an “impossible situation” for providing accelerated promotions with consequential seniority for SC/ST communities in government services.
•Besides the Chief Justice, the Bench comprises Justices Kurian Joseph, Rohinton Nariman, Sanjay Kishan Kaul and Indu Malhotra.
Presumed backward
•Attorney-General K.K. Venugopal submitted that the SC/ST communities have faced centuries of deprivation at the hands of society. They have been deprived of access to temples, schools and the basic facilities of life. Even today, Dalit grooms cannot ride horses.
•“They are presumed backward,” Mr. Venugopal submitted.
•The Attorney-General added that the State needs to show “affirmative action” by giving them equality of opportunity.
•The government objected to a creamy layer concept among the SC/ST. “You cannot dissect the SC/ST and see those who are worthy (of quota) and those who are not,” Mr. Venugopal submitted.
•As far as the qualifier “inadequate representation” was concerned, Mr. Venugopal asked, “How do you establish inadequacy of representation? Who will establish it? Is it for each post or the entire department?”
•Government said it wanted a total of 22.5% (15% for SC+7.5% for ST) posts reserved for promotion for SC/ST in public employment. Only this quantum would satisfy their need for adequate representation.
•Mr. Venugopal said it was not possible comply in every case the conditions laid down by the Nagaraj judgment in 2006.
•“But most States did not prepare quantifiable data to show inadequacy/adequacy of representation. Why?” asked Chief Justice Misra asked Mr. Venugopal.
•The AG replied that this was because “people die, retire… data keeps fluctuating". He said quantifiable data is not static and filling up vacancies was a dynamic and continuous process.
•During the hearing, Chief Justice Misra said the three criteria — backwardness, inadequacy and administrative efficiency — were “compelling reasons” so that reservation by government was not excessive. The three qualifiers were meant to prevent reservation from making an inroad into the right of equal opportunity in public employment.
•The Nagaraj judgment was mean to find “a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system”. In fact, the Nagaraj judgment said the three qualifiers were meant to prevent “reverse discrimination” by State.
•"It is made clear that even if the state has compelling reasons, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend reservation indefinitely,” the Constitution Bench led by then Chief Justice Y.K. Sabharwal, had observed in the Nagaraj verdict.
•In November 2017, a two-judge Supreme Court Bench led by Justice Kurian Joseph, had re-opened the issues of creamy layer and quota in promotions for SC/ST by referring them to a Constitution Bench.
•The two-judge Bench’s referral was based on a series of questions of law, including clarity on Article 16 (4), which deals with the State's powers for providing for appointments or posts for “any backward class of citizens”; on Article 16 (4A), which arms the state with power to make provisions for quota in promotion with consequential seniority to SC/ST communities; and finally Article 16 (4B), which deals with unfilled vacancies of a year reserved for SC/ST kept from being filled up.
📰 Impasse ends: on K.M. Joseph's elevation
Now, a fresh memorandum of procedure for judicial appointments must be agreed upon
•Good sense seems to have prevailed at last. The Centre has cleared the elevation of Justice K.M. Joseph to the Supreme Court, seven months after the five-member collegium first recommended his appointment. The Centre had no option but to elevate the Uttarakhand High Court Chief Justice once the collegium reiterated its original recommendation after the Law Ministry returned his name. The collegium had combined its reiteration of his name with two other names so that three Chief Justices could be elevated in one go. The Centre’s objections to Justice Joseph’s candidature were unconvincing from the very beginning. It made an issue of his relative lack of seniority among the Chief Justices of the various high courts, adding somewhat curiously that his elevation would give excessive representation to Kerala. It also spoke of an imbalance in regional representation. It was obvious that these were not good enough reasons to turn down his appointment. It only served to strengthen the suspicions that Justice Joseph found himself in disfavour because he was on a Bench that quashed the imposition of President’s Rule in Uttarakhand in 2016, a charge the government vehemently denied. Now that his elevation is all set to go through, these issues may not appear to be relevant anymore. However, it is difficult not to see a pattern in the government’s conduct. It has been splitting recommended lists and selectively approving proposals from the collegium, while holding back or returning some names. In the case of Justice Joseph, his name was sent along with that of senior advocate Indu Malhotra to the Centre in January. However, three months later, the government cleared only one of the two names, while seeking reconsideration of Justice Joseph’s candidature. Such decisions tend to alter the inter se seniority among sitting judges, a factor that determines who becomes Chief Justice of India and who joins the collegium.
•The Centre’s right to seek the reconsideration of a recommendation, on the basis of information available to it, cannot be disputed — but it is worrying that one or two names are held back from a number of batches. The reasons for seeking reconsideration need to be explicitly stated in every such instance. Even in its adherence to the norm that reiteration of a recommendation is binding, the Centre has not been consistent. Recently, it returned a recommendation concerning two appointments to the Allahabad High Court for the second time. The other issue is delay — there is no justification for sitting on files without taking a decision one way or another, particularly given the backlog in the Supreme Court. The current controversy may have come to a close, but the possibility of other flashpoints cannot be ruled out. If the judiciary and the government want to dispel the impression of a prolonged conflict, a fresh memorandum of procedure for appointments has to be agreed upon: it is unclear what exactly is holding it up.
📰 Checking the new abnormal
The U.S. experience shows that anti-lynching laws are not enough — this must be a political battle
•Dismayed by the increasing number of cases of lynching across the country, the Supreme Court observed last month that “it is the responsibility of the States to prevent untoward incidents and to prevent crime.”
Preventive guidelines
•Towards this goal, in Tehseen S. Poonawalla v. Union of India (July 17, 2018), the court directed that certain guidelines be implemented. The court took note that what may have started out as isolated acts by fundamentalist right-wing groups has now become a widespread malaise. As the court noted, “When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society. Vigilantism cannot, by any stretch of imagination, be given room to take shape, for it is absolutely a perverse notion.”
•The preventive guidelines require every State to designate a senior police officer, not below the rank of Superintendent of Police, as the Nodal Officer in each district. This officer will constitute a special task force to collect intelligence on persons likely to commit such crimes or who are involved in spreading hate speech, provocative statements and fake news. Nodal Officers, upon being designated, have been directed to “take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means.” Additionally, both the Central and State governments have been directed to broadcast public notifications on radio, television and other media platforms informing the public of the consequences of taking the law into their hands.
•Amongst the remedial measures, the Supreme Court has directed that in case of an incident of lynching or mob violence, the jurisdictional police station shall immediately lodge a first information report (FIR). The Station House Officer, in whose police station such an FIR is registered, shall intimate the Nodal Officer whose duty it will be to ensure that the victim’s family members are not further harassed. Nodal Officers have been made duty-bound to ensure that investigation and prosecution of such cases is strictly carried out, the charge sheet filed within the prescribed time period, and the trial concluded through fast-track courts within six months. The court has also directed that, upon conviction, the maximum sentences provided for various offences be awarded, and this should hopefully act as a deterrent.
•In the course of arguments, reference was made to the U.S. where lynching was, at one point, rampant, and several American judgments were cited to emphasise that every citizen must abide by the law. This, however, may be an oversimplification, for in the case of the U.S., it took almost a hundred years between the Civil War (1861-1865) and the Civil Rights Movement (1954-1968) for the repugnant practice of mob violence to be wiped out. Pertinently though, in the American context, between 1882 and 1968, nearly 200 anti-lynching bills were moved in the U.S. Congress, and seven Presidents, between 1890 and 1952, petitioned Congress to pass a federal law. However, no bill was approved by the Senate, due to the opposition by the conservative South. Eventually, in 2005, the U.S. Senate formally apologised for not passing an anti-lynching law when it was most needed.
No luxury of time
•As a nation, India cannot wait that long. The executive must immediately implement the directions of the Supreme Court. Unfortunately, barely a few days after the verdict, Rakbar Khan was lynched to death in Alwar. In this case, it is not just the attackers who must be brought to justice; the role of the police in Khan’s death must be investigated with reports stating that the cops on duty delayed getting him medical attention that may have saved his life. What this incident tells us is that we need more than just laws to deal with the deep-rooted hate which appears to have set in below the surface, and is corroding our moral fibre. Most cases of lynching have the appearance of premeditated acts of violence. There appears to be an attempt to change the social and cultural fabric of India forever, deepening the divide between ‘us’ and ‘them’. Deep-seated insecurities are being stoked, especially among young people frustrated by the lack of employment opportunities, to spread a fundamentalist agenda.
•This agenda cannot be fought by court directives, legislation and police procedures alone. It must be fought politically.
📰 Social media hub plan dropped
Supreme Court had raised the fear that it may create a surveillance state
•A proposal to have hubs to monitor social media traffic and trends has been withdrawn, the Union government informed the Supreme Court on Friday.
•The decision comes after the court had questioned the proposal in a hearing on July 13, saying this may transform the country into a surveillance state.
•The hearing was based on a petition filed by Trinamool Congress MLA Mohua Moitra, who had alleged that the government’s proposal for a “social media communication hub” was a “brazen attempt at mass surveillance”. Ms. Moitra said popular social media sites such as Twitter, Facebook and Instagram would be tracked to identify the “buzz creators” and social media influencers.
•Justice D.Y. Chandrachud, who is a member of the Bench led by Chief Justice Dipak Misra, had voiced the court’s apprehensions about the government’s plan, saying that this would pose a danger in a country where privacy was a fundamental right.
Disinformation trend
•“The proposed social media communication hub seeks to create a technology architecture that merges mass surveillance with a capacity for disinformation,” Ms. Moitra, represented by senior advocate A.M. Singhvi and advocate Mohammad Nizam Pasha, had argued.
•The petition had said the aim of the hub was to “create a technology platform “to collect digital media chatter from all core social media platforms as well as digital platforms”.
•With the government having withdrawn its plan for the hubs, the court said the petition was infructuous and disposed it of.
📰 Engaging Naya Pakistan
Imran Khan offers a chance to deal with Pakistan’s deep state, but no outcome is likely before the Lok Sabha polls
•The victory of Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) in the recent general elections in Pakistan poses both challenges and opportunities for India. The challenge would be to engage a newly minted Pakistani Prime Minister who is yet to reveal his way of conducting diplomacy. The opportunity, even so, lies in the fact that the rise of Mr. Khan will enable India to deal with the Pakistani ‘deep state’ more effectively.
•Mr. Khan’s ‘victory speech’ had several well-meaning and conciliatory references to India which, if logically followed up, could potentially yield long-term benefits for the two countries. But it may be unrealistic to expect much movement in bilateral ties till India’s own general elections are concluded.
A popular leader
•Despite allegations of a rigged election in Pakistan in which the army is said to have enabled Mr. Khan’s victory, it is widely recognised that there was a major groundswell of support for him. The fact that his PTI left the rival Pakistan Muslim League (Nawaz) far behind in terms of seat share, and that the PTI, until recently a provincial party, made stunning inroads in all of Pakistan’s provinces shows that the big story is also the rise of a charismatic Pakistani political leader seen as incorruptible and visionary by young voters.
•More significantly, despite concerns in India, religious parties have once again failed to convert their street power into political outcomes, which goes to highlight the sheer lack of mass base for terror outfits and their affiliates in Pakistan, and the moderate nature of its polity. This is not to say that Mr. Khan has a clean record: he has been a supporter of Pakistan’s blasphemy law and has in the past flirted with rightwing parties and terror outfits in Pakistan, which earned him the moniker ‘Taliban Khan’.
•The central Indian concern, and a legitimate one, about Mr. Khan’s victory is whether he can independently navigate a sustained policy process with New Delhi. India fears that the Pakistani deep state, i.e. the army and the Inter-Services Intelligence (ISI), will decide the India policy, and Mr. Khan will merely carry it out, if he is kept in the loop at all. A related concern is that the Pakistani deep state is not keen on a dialogue process with New Delhi. While it is difficult to predict the nature of the evolving relationship between an extremely popular Mr. Khan with the Pakistani deep state, let’s assume, for argument’s sake, that Mr. Khan will be subservient to the Pakistan army with regard to the country’s security policy. Whether that is desirable for the Pakistani state and its democracy is not a question that should detain us here.
•The question that should bother us is whether Mr. Khan being a puppet in the hands of the Pakistan army is detrimental to Indian interests or not. India’s grievance in regard to civil-military relations so far has been three-fold: one, the Pakistani deep state has a nefarious agenda vis-à-vis India; two, dialogue with the Pakistani political establishment has often not been successful since the Pakistani security establishment is often not on board the dialogue process; three, New Delhi’s desire for peace becomes a casualty in the turf war between Pakistan’s deep state and its political establishment.
•Logically then, one could argue that the only way India can have a steady dialogue process with Pakistan is when there is agreement between Pakistan’s deep state and its Prime Minister on what the country’s India policy should be. If so, Mr. Khan’s closeness to the Pakistan army should be viewed as an opportunity to have a fruitful dialogue with the Pakistani deep state without New Delhi’s message to Rawalpindi getting lost in Islamabad. New Delhi, while engaged in a dialogue with Islamabad, would not need to second-guess Rawalpindi’s intentions.
•Does the Pakistan army desire peace with India? Pakistan’s Army Chief, General Qamar Javed Bajwa, has on several occasions spoken of the need to build peace with India, underscoring that bilateral dialogue can lead to peace and stability in the region. There is, of course, no need to take it at face value. However, if the Pakistan army proposes dialogue and if the new Prime Minister is assumed to be on board such an objective, wouldn’t it suit Indian interests?
•This begets more questions. Can this new-found civil-military equation in Pakistan withstand the force of Mr. Khan’s personality traits and Pakistan’s political dynamics in the days ahead? Will Mr. Khan’s relationship with the deep state continue as expected or will his unpredictable temperament create more confusion? One would have to wait and watch.
The China question
•Yet another angle that needs to be factored in while engaging Naya Pakistan is the rising regional influence of China and the further strengthening of China-Pakistan ties. Both the Pakistan army and the political class in Pakistan are upbeat about the China-Pakistan Economic Corridor and Chinese investments in Pakistan, notwithstanding Mr. Khan’s initial reservations about China. It is possible that China could pacify some of Pakistan’s revisionist tendencies towards both Afghanistan and India. In Wuhan, Prime Minister Narendra Modi and Chinese President Xi Jinping agreed to carry out joint projects in Afghanistan. This is perhaps the opportune time to implement them. If (and that’s a big ‘if’) Beijing can get the Pakistan army to agree to a reconciliation process in Afghanistan, and if New Delhi and Beijing can collaborate in Afghanistan, we may witness some move towards regional stability. This would be helped by Mr. Khan’s desire to improve Pakistan-Afghanistan relations.
The Kashmir hurdle
•In this plausible scenario, Kashmir is likely to be the wild card. Two lessons stand out from earlier India-Pakistan negotiations: talks with Pakistan are unlikely to succeed if Kashmir continues to be a domestic challenge for India; and talks with Kashmiri separatists will not get anywhere without a parallel process with Pakistan. In other words, unless New Delhi reaches out to Kashmiri separatists and to Pakistan in parallel, a dialogue process with Pakistan is unlikely to succeed. Given that the Bharatiya Janata Party — after having pulled out of a difficult coalition with the Peoples Democratic Party in Jammu and Kashmir — is gearing up to use the Kashmir issue in the upcoming elections, there is unlikely to be much appetite in New Delhi to open a serious dialogue with Kashmiris, and Pakistan.
•In any case, Mr. Modi might not want to take a chance with Pakistan at this point since a failure to show anything substantive from a peace process with Pakistan could have domestic political implications, especially if ceasefire violations and terror attacks continue to take place.
•Therefore, notwithstanding the positive statements from Mr. Khan and Mr. Modi’s gracious phone call to him, we might not witness much progress in bilateral ties in the short term. The interlude between the general elections in Pakistan and India is a period of extreme caution and careful domestic calculations, and hence not conducive for bold foreign policy initiatives, especially on something as fraught as India-Pakistan relations.
📰 WHO thumbs up for Swachh Bharat’s rural component
Three lakh deaths prevented in five years, it says
•It is estimated that the Swachh Bharat Mission Gramin (SBM-G) will result in preventing more than three lakh deaths due to diarrhoea and protein-energy malnutrition between 2014-October 2019, notes a World Health Organisation (WHO) report released on Friday.
•The progress report on potential health impact from increased sanitation coverage through the SBM-G, conducted by the WHO for the Ministry of Drinking Water and Sanitation, said India’s rural sanitation coverage escalated to 89.07% till August 2.
•The report notes that under the SBM-G, 19 States and Union Territories were declared Open Defecation Free (ODF) and 7.9 crore toilets were built, while 421 districts were declared ODF. Also, more than 4.9 lakh villages in the country were declared ODF.
•The WHO study showed that before the initiation of SBM-G, unsafe sanitation caused 199 million cases of diarrhoea annually and that by 2019, the initiative aims to achieve 100% sanitation coverage.
•Union Health secretary Preeti Sudan, speaking at the release of the report, said, “WHO has only highlighted what we have known and are working towards. Sanitation and health are deeply related and the Ministry has several schemes running parallel to ensure good health coverage reaches all.”
Risk assessment
•The report further estimated that 14 million Disability Adjusted Life Years (DALYs) can be avoided between 2014 and 2019. WHO estimation of health impacts is based on comparative risk assessment (CRA) methods.
📰 HRD Ministry approves norms against plagiarism
UGC had sought graded punishment for the offence
•Student researchers found guilty of plagiarism may lose their registration and teachers could lose their jobs as the Human Resource Development Ministry approved new regulations on plagiarism drafted by the University Grants Commission (UGC).
•The Ministry had notified the UGC (Promotion of Academic Integrity and Prevention of Plagiarism in Higher Education Institutions) Regulations, 2018 this week.
•The UGC had approved the regulations in its meeting held in March this year prescribing graded punishment for plagiarism.
•According to a gazette notification, for students, plagiarism of up to 10% would not invite any penalty while that of between 10 and 40% would mean the students will have to submit a revised research paper within six months.
•In case the similarities are between 40 and 60% , students will be debarred from submitting a revised paper for one year. A student’s registration for a programme will be cancelled if the similarities are above 60%.
•Teachers whose academic and research papers have similarities ranging from 10 to 40% with other papers will be asked to withdraw the manuscript. In case the similarities are between 40 and 60%, they will not be allowed to supervise new masters, M.Phil, PhD students for two years and will also be denied the right to one annual increment, it said.
•In case of repeat plagiarism of over 60% similarity, the faculty members will be suspended, even dismissed.
•The new regulations prescribe that if any member of the academic community suspects plagiarism, he or she shall report it to the Departmental Academic Integrity Panel.
•Parliament was on Thursday informed by the government that the UGC found three cases of plagiarism in writing PhD thesis.
