DMK President Kalaignar has exposed the hollowness of Chief Minister Jayalalitha citing the Supreme Court’s July 18, 2013 order forbidding reservations for specialty and super-specialty faculty at AIIMS and similar institutions, which was opposed by her own party as wrong, to defend her regime giving up reservation in the appointments to faculty of the proposed multi super-specialty hospital in Omandurar Government Estates in Chennai. The backdrop to this is a mindset which invents newer forms of discrimination
On July 18 last year, the Supreme Court held that there can be no reservation in the appointment for faculty posts in specialty and super-specialty courses in medical colleges, including the prestigious All India Institute of Medical Sciences (AIIMS). A five-judge Constitution bench headed by (now retired) Chief Justice Altamas Kabir pronounced its verdict on a plea of the Faculty of Association of AIIMS against a Delhi High Court judgment.
The apex court said it cannot take a contrary view expressed in 1992, in the Indra Sawhney’s case (Mandal), that there could be no compromise with merit at the super-specialty stage. “We can’t ascribe to such a view as the very concept of reservation implies mediocrity. We will have to take note of the caution indicated in Indra Sawhney’s case,” Justices Nijjar, Ranjan Gogoi, M.Y. Eqbal and Vikramajit Sen said unanimously.
The Bench disagreed with the contention of AIIMS and the Centre that reservation be given to SC/STs and Backward classes candidates in appointment to assistant professors and other senior posts in specialty and super specialty courses. Referring to various judgments, including that of the Mandal case, it said: “We impress upon the governments to take appropriate steps in accordance with the views expressed in Indra Sawhney case and in this case keep in mind the provisions of Article 335 (claims of SC/ST to service and posts) of the Constitution.”
In the Mandal case, the Constitution bench had held that merit alone counted in certain services and positions.
Debate is necessary for the existence of democracy and the democratic processes. In reaction to this judgment, Parliamentarians have decided to bring in a Constitutional amendment to annul the verdict, and the Minister of Law mentioned that the government would file a review petition on August 19.
There is also scope for debate over the necessity of reservations in institutions which are not of national importance and whether reservation in centres of education is detrimental to the progress and development of the country. If less qualified or sub-standard teachers and employees occupy these positions then certainly the future of the country could be imperiled. Such arguments are typical on the part of anti-reservationists. They hold that the reservation policy is the bane of the Indian economy and that the country would have been better off without it.
The court has pointed out that there are some levels where reservation may not be desirable. And in this case, the issue is of teaching the specialty and super-specialty courses where equality of opportunity has to prevail and merit cannot be compromised. An attempt was made to search what does super-specialty mean, but alas no such word existed in the Microsoft 2007 dictionary.
The issue of merit is usually invoked whenever the question of reservations comes. Academicians have come out with a reasonable definition of ‘merit’, defining it as a construction of various components like socialisation, surroundings, circumstances, etc. including of course the personal qualities of an individual. Thus the question of merit should not be understood in a vacuum and that is why whenever the question of merit comes up, two camps get formed – one upholding the pro-merit placard and the other invoking the need to empower the hitherto excluded sections of society from the institutions and processes of public domain.
In recent years, an understanding has developed and rightly too – that if opportunities are given to members of the excluded sections then they perform as well as the others. On the other hand there is enough proof in the literature to suggest that discrimination persists even where individuals hold equal or sometimes even higher qualifications. They are denied opportunities due to the social group to which they belong as their surnames or sometimes names give away their “reserved” status.
‘Blocked by Caste: Economic discrimination in modern India’ (New Delhi, 2010) categorically mentions how the names of dummy candidates signifying the social background of excluded groups and dominant groups were sent in response to vacancies for jobs advertised by various companies. It was also revealed how candidates with equal and even higher qualifications from the names signifying socially excluded sections were less likely to be called for interview as compared to those having the names and surnames usually associated with the dominant/higher castes. If that is the case then as citizen of a democratic State one may ask, “Could the institutes of national importance be delinked from the societal biases that one carries due to the cultural milieu in which we are brought up?”
The judgment after considering the submissions of both sides cited various cases which have remained the basis of judgments on reservations. Quoting Dr Jagdish Saran’s case which observed, “We cannot allow excellence to be compromised by any other consideration because that would be detrimental to the interest of the nation……...….. if equality of opportunity for every person in this country is constitutional guarantee, merit must be the test when choosing the best.”
The most frequently quoted case is that of Indra Sawhney (1992) or the Mandal verdict in which the court intervened in the matter of promotions and made observations against the practice of reservation in promotions. The issue of merit was also invoked saying that reservations compromises merit so it is not desirable. The present judgment also mentions that reservation promotes mediocrity and the institutions of national importance need to maintain excellence. One wonders whether competence could be measured without being given the opportunity.
The court, in the Indra Sawhney case (which is the basis for the present judgment as well), did make some observations and issued some guidelines which were advisory in nature. However, the petitioner argued, “Although the definite directions have not been given in para 838 and 839 in the judgment of Indra Sawhney case (supra) the observations made therein were guidelines for the Government and institutions, such as AIIMS, to follow, in order to provide best candidates available with the opportunity of going in for super specialties which entail higher degree of skill and where no compromise in quality and expertise could be entertained.”
If advisory guidelines have the force of rules, then universities getting directions from the Ministry of Human Resource Development and University Grants Commissions to grant reservations to SC/ST at various levels of teaching but not implementing the same ought to be barred from teaching and research activities.
Let’s take an instance of guidelines given in favour of SC/ST. Interestingly, till 1997, Delhi University did not accept reservations at the entry level. Till then the strength of SC/ST teachers in the University of Delhi was around 50. But after a Parliamentary Committee on the Welfare of SC/ST intervened, the strength went up by as much as 10 times over the next five years. This clearly proves that the bogey of merit was used to keep out specific groups from institutions of higher learning.
The question is, if reservations are fine at the entry level and the basis of reservation is discrimination and there is need to empower the marginalised sections of SC/ST, then does discrimination end in the same environment once the bar is dropped to facilitate entry-level reservation? This is the genesis of the claim for reservation in promotions.
Human beings are slaves to perceptions. That explains why a person who has availed the reservation policy is automatically considered unmeritorious. This becomes the basis of discrimination in promotions. In this judgment itself there is mention of arguments pursued by AIIMS and the Solicitor General, which are quite interesting and revealing. They argued that the reservation at various levels is being introduced by AIIMS for a long time now but there is no evidence or data that could show that the reputation of the institute has gone down in the last years.
In fact, AIIMS remains the most sought after institute by those aspiring to do research or pursuing medical education. Moreover, it was emphasised that the SC/ST and MBC candidates need to sit with other candidates without any separate weightage given to the candidates from the reserved category. Certain arguments from the Indra Sawhney were invoked wherein the court upheld that a certain amount of reservations is necessary and desirable so that the excluded sections could compete with others and excel in academics.
It needs highlighting that in 1951, i.e. within a year of the Constitution coming into force, the government of India came out with an Amendment to uphold the reservations for the Backward Classes that was otherwise denied after court intervention. Article 46 was invoked by the then Law Minister, BR Ambedkar, who said “I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey your judgment but I am not bound to respect it. That is the liberty which every lawyer enjoys in telling the judge that his judgment is wrong and I am not prepared to give up that liberty.”
Nothing is static, and since the dynamics of caste are also changing we need to see what has not changed is the old mindset – which continues manufacturing newer forms of discrimination. As the courts are interpreters of the law, the law also needs to be seen in a changing context and interpreted accordingly. Probably that is why the Constitution has given rights of law making to the Parliament and final interpretation of law to the Supreme Court so that both could complement each other and go by the separation of powers.
But the misery for Tamil Nadu, the land of struggle for social justice, is that it is now ruled by a person, who by conviction is opposed to the very concept but for political need and convenience pretended to be ‘the saviour of social justice’. However, her political camouflage has once again peeled off in this issue now! r
On July 18 last year, the Supreme Court held that there can be no reservation in the appointment for faculty posts in specialty and super-specialty courses in medical colleges, including the prestigious All India Institute of Medical Sciences (AIIMS). A five-judge Constitution bench headed by (now retired) Chief Justice Altamas Kabir pronounced its verdict on a plea of the Faculty of Association of AIIMS against a Delhi High Court judgment.
The apex court said it cannot take a contrary view expressed in 1992, in the Indra Sawhney’s case (Mandal), that there could be no compromise with merit at the super-specialty stage. “We can’t ascribe to such a view as the very concept of reservation implies mediocrity. We will have to take note of the caution indicated in Indra Sawhney’s case,” Justices Nijjar, Ranjan Gogoi, M.Y. Eqbal and Vikramajit Sen said unanimously.
The Bench disagreed with the contention of AIIMS and the Centre that reservation be given to SC/STs and Backward classes candidates in appointment to assistant professors and other senior posts in specialty and super specialty courses. Referring to various judgments, including that of the Mandal case, it said: “We impress upon the governments to take appropriate steps in accordance with the views expressed in Indra Sawhney case and in this case keep in mind the provisions of Article 335 (claims of SC/ST to service and posts) of the Constitution.”
In the Mandal case, the Constitution bench had held that merit alone counted in certain services and positions.
Debate is necessary for the existence of democracy and the democratic processes. In reaction to this judgment, Parliamentarians have decided to bring in a Constitutional amendment to annul the verdict, and the Minister of Law mentioned that the government would file a review petition on August 19.
There is also scope for debate over the necessity of reservations in institutions which are not of national importance and whether reservation in centres of education is detrimental to the progress and development of the country. If less qualified or sub-standard teachers and employees occupy these positions then certainly the future of the country could be imperiled. Such arguments are typical on the part of anti-reservationists. They hold that the reservation policy is the bane of the Indian economy and that the country would have been better off without it.
The court has pointed out that there are some levels where reservation may not be desirable. And in this case, the issue is of teaching the specialty and super-specialty courses where equality of opportunity has to prevail and merit cannot be compromised. An attempt was made to search what does super-specialty mean, but alas no such word existed in the Microsoft 2007 dictionary.
The issue of merit is usually invoked whenever the question of reservations comes. Academicians have come out with a reasonable definition of ‘merit’, defining it as a construction of various components like socialisation, surroundings, circumstances, etc. including of course the personal qualities of an individual. Thus the question of merit should not be understood in a vacuum and that is why whenever the question of merit comes up, two camps get formed – one upholding the pro-merit placard and the other invoking the need to empower the hitherto excluded sections of society from the institutions and processes of public domain.
In recent years, an understanding has developed and rightly too – that if opportunities are given to members of the excluded sections then they perform as well as the others. On the other hand there is enough proof in the literature to suggest that discrimination persists even where individuals hold equal or sometimes even higher qualifications. They are denied opportunities due to the social group to which they belong as their surnames or sometimes names give away their “reserved” status.
‘Blocked by Caste: Economic discrimination in modern India’ (New Delhi, 2010) categorically mentions how the names of dummy candidates signifying the social background of excluded groups and dominant groups were sent in response to vacancies for jobs advertised by various companies. It was also revealed how candidates with equal and even higher qualifications from the names signifying socially excluded sections were less likely to be called for interview as compared to those having the names and surnames usually associated with the dominant/higher castes. If that is the case then as citizen of a democratic State one may ask, “Could the institutes of national importance be delinked from the societal biases that one carries due to the cultural milieu in which we are brought up?”
The judgment after considering the submissions of both sides cited various cases which have remained the basis of judgments on reservations. Quoting Dr Jagdish Saran’s case which observed, “We cannot allow excellence to be compromised by any other consideration because that would be detrimental to the interest of the nation……...….. if equality of opportunity for every person in this country is constitutional guarantee, merit must be the test when choosing the best.”
The most frequently quoted case is that of Indra Sawhney (1992) or the Mandal verdict in which the court intervened in the matter of promotions and made observations against the practice of reservation in promotions. The issue of merit was also invoked saying that reservations compromises merit so it is not desirable. The present judgment also mentions that reservation promotes mediocrity and the institutions of national importance need to maintain excellence. One wonders whether competence could be measured without being given the opportunity.
The court, in the Indra Sawhney case (which is the basis for the present judgment as well), did make some observations and issued some guidelines which were advisory in nature. However, the petitioner argued, “Although the definite directions have not been given in para 838 and 839 in the judgment of Indra Sawhney case (supra) the observations made therein were guidelines for the Government and institutions, such as AIIMS, to follow, in order to provide best candidates available with the opportunity of going in for super specialties which entail higher degree of skill and where no compromise in quality and expertise could be entertained.”
If advisory guidelines have the force of rules, then universities getting directions from the Ministry of Human Resource Development and University Grants Commissions to grant reservations to SC/ST at various levels of teaching but not implementing the same ought to be barred from teaching and research activities.
Let’s take an instance of guidelines given in favour of SC/ST. Interestingly, till 1997, Delhi University did not accept reservations at the entry level. Till then the strength of SC/ST teachers in the University of Delhi was around 50. But after a Parliamentary Committee on the Welfare of SC/ST intervened, the strength went up by as much as 10 times over the next five years. This clearly proves that the bogey of merit was used to keep out specific groups from institutions of higher learning.
The question is, if reservations are fine at the entry level and the basis of reservation is discrimination and there is need to empower the marginalised sections of SC/ST, then does discrimination end in the same environment once the bar is dropped to facilitate entry-level reservation? This is the genesis of the claim for reservation in promotions.
Human beings are slaves to perceptions. That explains why a person who has availed the reservation policy is automatically considered unmeritorious. This becomes the basis of discrimination in promotions. In this judgment itself there is mention of arguments pursued by AIIMS and the Solicitor General, which are quite interesting and revealing. They argued that the reservation at various levels is being introduced by AIIMS for a long time now but there is no evidence or data that could show that the reputation of the institute has gone down in the last years.
In fact, AIIMS remains the most sought after institute by those aspiring to do research or pursuing medical education. Moreover, it was emphasised that the SC/ST and MBC candidates need to sit with other candidates without any separate weightage given to the candidates from the reserved category. Certain arguments from the Indra Sawhney were invoked wherein the court upheld that a certain amount of reservations is necessary and desirable so that the excluded sections could compete with others and excel in academics.
It needs highlighting that in 1951, i.e. within a year of the Constitution coming into force, the government of India came out with an Amendment to uphold the reservations for the Backward Classes that was otherwise denied after court intervention. Article 46 was invoked by the then Law Minister, BR Ambedkar, who said “I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey your judgment but I am not bound to respect it. That is the liberty which every lawyer enjoys in telling the judge that his judgment is wrong and I am not prepared to give up that liberty.”
Nothing is static, and since the dynamics of caste are also changing we need to see what has not changed is the old mindset – which continues manufacturing newer forms of discrimination. As the courts are interpreters of the law, the law also needs to be seen in a changing context and interpreted accordingly. Probably that is why the Constitution has given rights of law making to the Parliament and final interpretation of law to the Supreme Court so that both could complement each other and go by the separation of powers.
But the misery for Tamil Nadu, the land of struggle for social justice, is that it is now ruled by a person, who by conviction is opposed to the very concept but for political need and convenience pretended to be ‘the saviour of social justice’. However, her political camouflage has once again peeled off in this issue now! r
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