📰 Supreme Court declares Maratha quota law unconstitutional
A separate reservation for the Maratha community violates Articles 14 (right to equality) 21 (due process of law), says the top court.
•A five-judge Constitution Bench of the Supreme Court on Wednesday unanimously declared a Maharashtra law which provides reservation benefits to the Maratha community, taking the quota limit in the State in excess of 50%, as unconstitutional.
•The Bench led by Justice Ashok Bhushan found there was no “exceptional circumstances” or “extraordinary situation” in Maharashtra which required the Maharashtra government to break the 50% ceiling limit to bestow quota benefits on the Maratha community.
•The Supreme Court struck down the findings of the Justice N.G. Gaikwad Commission which led to the enactment of Maratha quota law and set aside the Bombay High Court judgment which validated the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018.
•The High Court had, in June 2019, reduced the quantum of reservation for Marathas from the 16% recommended by the Gaikwad Commission to 12% in education and 13% in employment. The Supreme Court concluded that even the reduced percentages of reservation granted by the High Court were ultra vires.
•In fact the Supreme Court held that a separate reservation for the Maratha community violates Articles 14 (right to equality) and 21 (due process of law).
•Most importantly, the Supreme Court declined to re-visit the its 1992 Indira Sawhney judgment, which fixed the reservation limit at 50%.
•"We don't find any substance to revisit the Indira Sawhney judgment or referring it to a larger bench. The judgment has been upheld by at least four Constitution Benches," Justice Ashok Bhushan read from his lead opinion on the question of validity of the Maratha quota law.
•In 1992, a nine-judge Bench of the court had drawn the "Lakshman rekha" for reservation in jobs and education at 50%, except in "extraordinary circumstances". However, over the years, several States like Maharashtra and Tamil Nadu have crossed the rubicon and passed laws which allows reservation shooting over 60%. The five-judge Bench had decided not to confine the question of reservation spilling over 50% limit to just Maharashtra. The Bench had expanded the ambit of the case by making other States party and inviting them to make their stand clear on the question of whether reservation should continue to remain within the 50% boundary or not.
•The Indira Sawhney judgment had categorically said "50% shall be the rule, only in certain exceptional and extraordinary situations for bringing far-flung and remote areas population into mainstream said 50% rule can be relaxed".
•Justice Bhushan said that appointments made under the Maratha quota following the Bombay HC judgment endorsing the State law would hold, but they would get no further benefits. Students already admitted under the Maratha quota law would continue. Students admitted to postgraduate courses would not be affected since they were not given reservation.
•In the second part of the judgment on the validity of the 102nd Constitution Amendment, Justice S. Ravindra Bhat held a “different view” from the one held by Justices Bhushan and S. Abdul Nazeer.
•The Bench had looked into the question whether the Constitution (One Hundred Second Amendment) Act of 2018, which introduced the National Commission for Backward Classes, interfered with the authority of State Legislatures to provide benefit to the social and educationally backward communities in their own jurisdiction.
•The Constitution Amendment Act had introduced Articles 338B and 342A in the Constitution. Article 338B deals with the newly established National Commission for Backward Classes. Article 342A empowers the President to specify the socially and educationally backward communities in a State. It says that it is for the Parliament to include a community in the Central List for socially and backward classes for grant of reservation benefits. The court had delved into whether Article 342A stripped State Legislatures of their discretionary power to include their backward communities in the State Lists.
•Justice Bhat agreed that only the President could make changes to the Central List of socially and backward classes based on data given from various sources, including the National Commission for Backward Classes. The States could only make “suggestions”. The “final exercise” of including castes and communities was done by the President alone.
•Justices Bhushan and Nazeer however concluded that the Parliament did not intend to take away from the States its power to identify their backward classes. But they nevertheless upheld the validity of the Amendment Act.
Households coped with the loss of income by reducing food intake, selling assets, and borrowing from friends, relatives and money-lenders
•The COVID-19 pandemic has substantially increased informality in employment, leading to a decline in earnings for the majority of workers, and consequent increase in poverty in the country, according to ‘State of Working India 2021: One Year of Covid-19’, a report brought out annually by Azim Premji University’s Centre for Sustainable Employment, Bengaluru.
•This year’s report, which covers the period March 2020 to December 2020, dwells on the impact of one year of COVID-19 on employment, incomes, inequality and poverty.
•Regarding employment, the report notes that 100 million jobs were lost nationwide during the April-May 2020 lockdown. Though most of these workers had found employment by June 2020, about 15 million remained out of work. As for income, “for an average household of four members, the monthly per capita income in Oct 2020 (₹4,979) was still below its level in Jan 2020 (₹5,989),” the report noted.
Exodus into informal sector
•The study found that post-lockdown, nearly half of salaried workers had moved into informal work, either as self-employed (30%), casual wage (10%) or informal salaried (9%). The fallback option varied by caste and religion. “General category workers and Hindus were more likely to move into self-employment while marginalised caste workers and Muslims moved into daily wage work,” noted the report.
•Education, health and professional services saw the highest exodus of workers into other sectors, with agriculture, construction and petty trade emerging as the top fallback options. For Hindus, agriculture was the major fallback sector, absorbing 10-20% of workers from other sectors, while for Muslims, it was trade, absorbing 20-35% of workers from other sectors.
•Due to the employment and income losses, the labour share of the GDP fell by 5 percentage points, from 32.5% in the second quarter of 2019-20 to 27% in the second quarter of 2020-21. “Of the decline in income, 90% was due to reduction in earnings, while 10% was due to loss of employment. This means that even though most workers were able to go back to work, they had to settle for lower earnings,” observed the report. Monthly earnings of workers fell on an average by 17% during the pandemic, with self-employed and informal salaried workers facing the highest loss of earnings.
•Though incomes fell across the board, poor households were hit the hardest. While the poorest 20% of households lost their entire incomes in April-May 2020, “the richer households suffered losses of less than a quarter of their pre-pandemic incomes.” During the period from March to October 2020, an average household in the bottom 10% lost ₹15,700, or just over two months’ income.
The Covid-connect
•Significantly, the study has found a clear correlation between job losses and the COVID-19 case load, with States showing higher case load, such as Uttar Pradesh, Maharashtra, Tamil Nadu, Kerala, and Delhi, “contributing disproportionately to the job losses”. There was also a correlation between lockdown-related mobility restrictions and losses in earnings. A 10% decline in mobility was associated with 7.5% decline in income.
•Women and younger workers were more affected by the pandemic-related measures. During the lockdown and in the post-lockdown months, 61% of working men remained employed while 7% lost their job and did not return to work. But in the case of women, only 19% remained employed while 47% suffered a permanent job loss, “not returning to work even by the end of 2020”. For women who remained employed, the burden of domestic work increased, without any corresponding relief in the hours spent in employment.
•Besides women, younger workers were impacted more by the lockdown. About 33% of workers in the 15-24 years age group had failed to regain some form of employment even by December 2020. The corresponding figure for those in the 25-44 years category was 6%.
Coping methods
•With 230 million falling below the national minimum wage threshold of ₹375 per day during the pandemic, poverty rate has “increased by 15 percentage points in rural and nearly 20 percentage points in urban areas,” the report said. Households coped with the loss of income by decreasing their food intake, selling assets and borrowing informally from friends, relatives and money-lenders. The report notes that 20% of those surveyed said that their food intake had not improved even six months after the lockdown.
•These findings, coming in the midst of a virulent second wave and the looming possibility of another national lockdown, are a serious cause for concern in the absence of an inclusive social welfare architecture. Among other ameliorative policy measures, the report calls for extending free rations under the Public Distribution System (PDS) till the end of 2021, expansion of MGNREGA (Mahatma National Gandhi Employment Guarantee Act) entitlement to 150 days, and a “Covid hardship allowance” of ₹30,000 (₹5,000 per month for six months) for the 2.5 million Anganwadi and ASHA workers.
•The report, released on Wednesday, is based on data sourced from the Consumer Pyramids Household Survey of the Centre for Monitoring the Indian Economy (CMIE), the Azim Premji University Covid-19 Livelihoods Phone Survey (CLIPS), and the India Working Survey (IWS), besides other surveys by various civil society organisations.
📰 Centre alone can identify socially and educationally backward classes: Supreme Court
‘States can only make suggestions to the President or the statutory commissions’
•The Centre alone is empowered to identify socially and educationally backward classes (SEBC) and include them in the Central List for claiming reservation benefits.
•“The President (that is the Central government) alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each State and Union Territory for the purposes of the Constitution,” Justice S. Ravindra Bhat, whose opinion was concurred by Justices L. Nageswara Rao and Hemant Gupta on the five-judge Bench, held.
•Justice Bhat said the States could only make suggestions to the President or the statutory commissions concerned for inclusion, exclusion or modification of castes and communities to be included in the List.
•The Central List is to be the “only list” for the SEBC.
•“Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2),” Justice Bhat said. “In the task of identification of SEBCs, the President shall be guided by the Commission (National Commission for Backward Classes) set up under Article 338B; its advice shall also be sought by the State in regard to policies that might be framed by it,” the court said.
•“If the commission prepares a report concerning matters of identification, such a report has to be shared with the State government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1),” the court clarified.
•However, “the President’s prerogative as far as the identification and inclusion of SEBCs in the List would not affect the States’ power to make reservations in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16”.
•The court asked the National Commission for Backward Classes to “conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to States and Union Territories”.
📰 Against excess: On Maratha quota
In Maratha case, SC holds fast to quota ceiling and requires special reasons to exceed it
•In striking down the separate reservation given to Maharashtra’s Maratha community, the Supreme Court has underscored the importance of adhering to the 50% limit on total reservation, as well as the need to justify any excess by showing the existence of exceptional circumstances. In a decision that will be quite unpalatable to mainstream parties, the Court has not only found no merit in the Maratha claim to backwardness but also said the community is adequately represented in public services. It is no surprise that the Maratha quota, given by Maharashtra through a 2018 law, did not survive judicial scrutiny by a Constitution Bench. The 16% quota in admissions to educational institutions and jobs in public services — later brought down to 12% in admissions and 13% in jobs through a 2019 amendment — took the total reservation in the State beyond the 50% ceiling imposed by earlier verdicts. The five-Judge Bench has held that the State has not shown any exceptional circumstance to justify exceeding the limit. The Bombay High Court had upheld the validity of the Maratha reservation in principle, but ruled that the law could not have fixed the percentage above what was recommended by the State Backward Classes Commission headed by M.G. Gaikwad. The Court has now set aside this ruling, rejecting the HC’s reasoning that the denial of backward class status to the Marathas had pushed them deeper into social and educational backwardness, and that this constituted a special circumstance in support of their claim to separate reservation.
•The second limb of the judgment, however, may cause political concern. The Court’s categorical refusal to reconsider the 50% limit set down by a verdict in Indra Sawhney (1992) may threaten the continuance of different kinds of reservation in States. The Court’s interpretation of the 102nd Constitution Amendment, by which a National Commission for Backward Classes was created, has proved right fears that the national body’s role and power may impact the rights of States. The Court has ruled that, henceforth, there will only be a single list of socially and educationally backward classes with respect to each State and Union Territory notified by the President of India, and that States can only make recommendations for inclusion or exclusion, with any subsequent change to be made only by Parliament. Several MPs had argued that the Amendment would denude the States of their power, but the Centre had assured them that it was not so. The Court has now ruled that Parliament’s intent was to create a scheme to identify SEBCs in the same manner as SCs and STs. The President alone, to the exclusion of all other authorities, is now empowered to identify SEBCs. A clamour for yet another constitutional amendment to undo the effect of this verdict may be in the offing.
📰 A CT scan for COVID merits a word of caution
Going by data and the risk factors, its widespread use in diagnosing the infectious disease needs to be questioned
•There are broadly three reasons why we perform tests in clinical medicine: diagnosis (what is the disease?), etiognosis (what caused a disease?), and prognosis (how will the disease evolve?). It is also important that the outcome of a test should guide treatment in some way, especially when it is being touted as being a monitoring test that provides unique information that cannot be obtained by easier means. Considering how widespread the use of computerised tomography (CT) scans of the thorax during the novel coronavirus pandemic has been, one would assume that the test would satisfy one, if not all the above criteria, for an accurate diagnostic test.
Data from studies
•The Cochrane (previously known as the Cochrane Collaboration) pooled together all the available data from studies conducted over the last year to try and test the accuracy of CT scans in diagnosing COVID-19. It included 41 studies with a total of 16,133 participants. It was found that a CT scan accurately diagnosed COVID-19 in about 88% of individuals with a positive RT-PCR. Since an RT-PCR itself misses 30% of people who have COVID-19, a chest CT is likely to diagnose only 62% of all individuals having COVID-19, making it a relatively inaccurate test for diagnosis. In these difficult times in obtaining RT-PCRs due to overworked laboratory services, the use of a CT chest as a surrogate needs to come with a caveat: a normal CT chest does not exclude COVID-19, and, therefore, should not be a reason to come out of isolation, especially when the CT is done very early in the disease.
Mislabelling the cause
•An accurate test for etiognosis would be one in which a result would make the cause almost certain. The same Cochrane review mentioned above found that when radiologists convincingly labelled a CT pattern as being consistent with COVID-19 disease, they mislabelled 20% of those who did not have the disease as having COVID-19, getting the etiognosis wrong in a significant proportion of individuals. Telling someone who does not have COVID-19 that they do have the disease has serious implications, leaving the real diagnosis undetected, and subjecting the individual to the psychosocial consequences of the knowledge that she/he has the disease.
•The third reason that is often cited as being a reason to do a CT is for prognostication: a CT that appears worse is likely to lead to worse outcomes than a CT that appears better. Two comments need to be made in this context: the severity of lung involvement as seen on a CT is reflective of the status of the lungs at that point of time, and we know that this is a dynamic process, i.e., a limited involvement at an early stage could progress with time to a severe involvement; and a CT scan revealing severely affected lungs while oxygen levels remain high and unchanged is an extremely improbable event, suggesting that a CT is unlikely to give a treating physician more information than a simple tool such as an oximeter. It needs to be mentioned that in research settings, certain patterns of lung involvement (and not the mere quantum as reported by a score) have been associated with worse outcomes, but unfortunately, these have not been widely validated, and are not the reason why CT scans are presently being performed.
The risks
•“What is the harm in getting a CT of the chest done?” is another argument one hears often. A study published in The New England Journal of Medicine in 2007 postulated that “0.4% of all cancers in the United States may be attributable to the radiation from CT studies”, and further speculated that the current estimate could be in the range of 1.5%-2%. This potential harm would have been clearly acceptable had this been a highly accurate and useful test. In addition to this risk to the individual undergoing the scan, there are risks to radiology technicians, staff and doctors that need to be accounted for. Moreover, considering the fact that CT scanners need to be kept in closed air-conditioned spaces, the risk of transmission of the virus at such centres cannot be ruled out.
•As a physician treating COVID-19 disease over the past year, I have ordered CT scans for less than 1% of the patients whom I have treated. I have ordered them to evaluate the possibility of other lung diseases when two RT-PCR swabs were negative in patients whose symptoms were consistent with COVID-19 disease, in patients in whom there was a possibility of blood clots in the lungs when hospitalised, and to look for secondary infections in individuals who have been in hospital for a long time and can sometimes have new infections after being admitted for COVID-19. Intensivists have on occasion used CT scans to optimise ventilator strategies for individuals with severe COVID-19 disease. Indications outside of these should be the exception, not the norm.
Raise queries
•So, if a physician asks that a CT scan be done, ask her/him a few questions. If it is being done for diagnosis, why not do an RT-PCR instead (or two RT-PCRs), considering the higher accuracy of the test? If it is being done despite COVID-19 being proven, ask whether a minimal involvement on the scan guarantees an uneventful clinical course, or whether a more than minimal involvement (when the oxygen levels are high, and the patient seems to be getting better) is a sign of impending deterioration. Ask whether treatment strategies have been proven to work better when guided by chest CTs (rather than clinical findings such as oxygen levels). If the answer to none of these satisfies you, consider the potential risks involved in getting that CT done, and feel free to make an informed decision.
