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A Constitution Bench of the Supreme Court on Monday, in a 3:2 majority decision, upheld the validity of the 103rd Constitutional Amendment which provides 10% reservation in government jobs and educational institutions to the ‘economically weaker sections of the society but excludes the ‘poorest of poor’ among Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope.
Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala delivered the majority opinions on the five-judge Bench in an hour-long session which saw the pronouncement of a Constitution Bench judgment live-streamed for the first time. Chief Justice U.U. Lalit, on his last working day, and Justice S. Ravindra Bhat, gave the minority view, which Justice Bhat authored.
On whether reservation on the sole basis of economic criteria violated the Basic Structure of the Constitution, Justice Maheshwari took the expansive view that reservation was an “instrument of affirmative action by the state” and should not be confined to just SCs, STs, SEBCs, and the non-creamy layer of OBCs, but also include “any class or sections so disadvantaged as to answer the description of ‘weaker section’”.
Justice Trivedi noted that “the legislature understands and appreciates the needs of its own people”. The three judges in the majority held that reservation on economic criteria alone did not violate the Basic Structure of the Constitution.
In their minority view, Justice Bhat and Chief Justice Lalit held that though quota on the basis of economic deprivation, destitution and poverty was “per se permissible/valid” and even “constitutionally indefeasible”, the “othering” of socially and educationally disadvantaged classes, including the SC/ST/OBC/SEBC communities, on the ground that they already enjoy the benefits of a pre-existing 50% reservation on the basis of their caste and class origins, would amount to heaping injustice based on their past disability.
He said such an exclusion was simply “Orwellian” as the government’s statistics itself showed that the “bulk of economic deprived section of the society belonged to SC/ST/SEBC/OBC”.
He said the SCs make up 38% of the population, STs make up 48.4%, and OBCs constitute 13.86% of the 31.7 crore people living under the poverty line in the country. Forward castes or the unreserved category occupy only 5.85% of the Below Poverty Line (BPL) population.
The petitioners had argued that the exclusion of SC/ST/SEBC/OBC had left only the “middle class” among the forward castes drawing less than ₹8 lakh as annual family income to reap the benefits of the EWS quota.
Justice Bhat said the exclusion from the EWS quota based on social or identity origins struck at the essence of the “Non-Discriminatory Rule” and destroyed the Eqaulity Code of the Constitution.
It amounted to a “hostile discrimination” of the poorest members of the society, who were already socially and educationally backward and subjected to caste discrimination.
Editorial
Economics, exclusion (Page no. 6)
(GS Paper 2, Polity and Governance)
On the face of it, a new kind of reservation in education and jobs solely based on income or economic criteria was destined to face several constitutional hurdles.
However, given that the special provision in favour of ‘Economically Weaker Sections’ (EWS) among those who are not eligible for community-based quotas meant for Scheduled Castes, Scheduled Tribes and Other Backward Classes, was introduced through an amendment to the Constitution, only a demonstration that the new quota violated the basic structure of the Constitution would have succeeded in dislodging it.
By a majority of three to two, the Supreme Court of India has ruled that the amendment does not violate the basic structure. In the process, the Court has recorded a major paradigm shift in its conception of what constitutes valid affirmative action.
For the first time, it has upheld a kind of reservation that specifically excludes those from the three existing categories of beneficiaries and is extended solely on the basis of economic criteria.
When in Indra Sawhney (1992), a nine-judge Bench upheld OBC reservation, but favoured exclusion of advanced sections of the beneficiary communities from its purview, it introduced a form of economic criteria for the first time.
However, the criteria were used to exclude individuals, while the groups continued to be eligible for reservation. At the same time, the Court struck down a provision for 10% reservation for economically backward sections introduced by the Congress regime, on the ground that the Constitution does not provide for reservation solely based on economic criteria.
The logic behind this scheme of affirmative action was that reservation is a tool of reparation for groups excluded from mainstream avenues of advancement due to caste discrimination, while it should not become a benefit or reward for individual members of the same groups who may have made reasonable progress.
This logic was wholly inverted in 2019 when the BJP-led regime amended the Constitution to provide reservation solely on economic criteria to sections other than those enjoying reservation under the categories of SCs, STs and OBCs.
The resort to economic or income criterion as the sole marker for identifying a beneficiary is obviously unsustainable from the point of view of equality of opportunity.
All five judges agree that the introduction of an economic criterion does not violate the Constitution. However, Justice S. Ravindra Bhat, with Chief Justice of India U.U. Lalit, concurring, has correctly found that the exclusion of groups that already enjoy reservation from accessing this new form of affirmative action violates the equality norm, which is a basic feature of the Constitution.
The Constitution Amendment came with considerable political legitimacy as very few members voted against it. The Court could not have lightly struck it down.
The majority acknowledges Parliament’s power to create a new set of criteria and a new target for affirmative action. Their opinions whole-heartedly endorse the exclusion of communities that benefit from existing reservation norms, contending that such exclusion is necessary to achieve the intended object of emancipating economically weaker sections and, if they are included, it may undermine the entire idea of providing such reservation.
City
Centre opposes petition in HC against provisions of surrogacy law (Page no. 2)
(GS Paper 2, Government Policies and Interventions)
The Centre has opposed before the Delhi High Court a petition challenging certain provisions of the surrogacy laws, including the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021.
In an affidavit, the Centre stated that the surrogacy laws were enacted following due procedure, with an intention to restrict the commercialisation of embryos and newborns.
The Centre said the provisions challenged in the petition deal with the regulation of the procedure of assisted reproductive technology (ART) and surrogacy, which, if diluted, would defeat the whole purpose of the law.
The provisions challenged by the petitioners in the writ petition are to regulate the procedure of the ART and surrogacy. If these clauses are diluted, the whole purpose of both the Acts shall be defeated.
The Centre’s affidavit came on a petition by two individuals — Karan Balraj Mehta, an unmarried man, and Pankhuri Chandra, a married woman and a mother of one — challenging several provisions of the surrogacy law, including the exclusion of a single man and a married woman having a child from the benefit of surrogacy as a reproductive choice.
In their plea, the petitioners have stated that commercial surrogacy is the only option available to them.The petitioners have argued that the “ban on commercial surrogacy robs them of the option.
The personal decision of a single person about the birth of a baby through surrogacy, that is, the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
Thus, the right to privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away.
Under the Surrogacy (Regulation) Act, 2021, a married couple can opt for surrogacy only on medical grounds.The law defines a couple as a married Indian “man and woman” and also prescribes an age-criteria with the woman being in the age of 23 years to 50 years and the man between 26 years to 55 years.
The couple should not have a child of their own. Though the law allows single women to resort to surrogacy, she has to be a widow or a divorcee between the age of 35 and 45 years. The law does not allo single men to go for surrogacy
States
POCSO Act forces Adivasis in Nilgiris into conflict with law, say activists (Page no. 5)
(GS Paper 2, Government Policies and Interventions)
Kannan (name changed), a 19-year-old youth from an Adivasi community in Gudalur in the Nilgiris, was in love with 17-year-old Sumathi (name changed) from the same community, when he was charged by the All-Women Police for sexually assaulting his girlfriend, who he has been living with for the last year-and-a-half. Kannan, from an underprivileged Adivasi background, claims to not have been aware of the laws protecting young girls from being unlawfully married off prior to the age of 18, and though both he and his girlfriend are now of legally marriageable age, Kannan faces a long prison term as he was booked under Sections of the stringent Protection of Children from Sexual Offences (POCSO) Act.
Kannan is believed to be among 10 Adivasi youths from Gudalur and Pandalur taluks, who have cases pending against them in the courts under various sections of the POCSO Act, the Prohibition of Child Marriage Act, and even kidnapping.
Kannan is accused of kidnapping the girl on his motorcycle. How can any girl be kidnapped on a motorcycle and travel for a distance of 26 km as alleged in the FIR (First Information Report) filed against him?” G. Malaichamy, a lawyer handling such cases and defending members of Adivasi communities in court.
K.T.Subramanian, the secretary of the Adivasi Munnetra Sangam and the ASHWINI-Gudalur Adivasi Hospital, said that child marriage was prevalent among certain Adivasi groups in the Nilgiris.
He said that the accused boy is in most cases was around 17 or 18 years of age, and in a relationship with a minor girl. “In most cases, the families agree to get the couple married, but when the girl becomes pregnant and visits the village health nurse, and they find out that she is a minor, or was married before she turned 18, they inform child welfare services or the local police,” Mr. Subramanian said, adding that in many cases, the accused and the victim were from the same community, and were completely unaware of the laws.
To strengthen the case against the youths, the local police also sometimes exaggerate the offences and use terms like ‘repeated sexual assault’, when in reality, sexual intercourse between both parties was consensual.
Two youths he was representing have been sentenced to more than 25 years in jail. “These children are from impoverished communities.
Most of them don’t go to school, don’t have jobs, live inside the forest, and some don’t even have electricity in their homes. So it’s unfair that they are being criminalised for something they don’t even know is illegal.
He added that although judges in the lower courts are sympathetic to the plight of the youths, they are invariably told to appeal to the High Court for relief.
Some of the families, including the alleged victim, walk to court to support the accused because they can’t even afford bus tickets. How can they approach the High Court.
There have been precedents where the High Court has intervened in the interests of indigenous communities. Advocate K. Vijayan, who pleaded on behalf of the Toda community, managed to get an order in favour of the accused due to the “customary practices” of the Toda community.
Editorial
The age of minimalism in India¬ Pakistan ties (Page no. 6)
(GS Paper 2, International Relations)
India-Pakistan relations have entered an age of minimalism, counter-intuitive as it might seem. There is very little bilateral contact today, even fewer expectations of a bilateral breakthrough, and hardly any warmth in the relationship.
And yet, there is a certain ‘cold peace’ between the traditional rivals — on the Line of Control, inside Kashmir and in the verbal exchanges between the two sides.
The usual melodrama that surrounds India-Pakistan relations is only seen today when their national sides play each other during cricket tournaments. This is certainly new and a tad refreshing. But will it last?
India-Pakistan relations of the kind we have been used to over several decades now — characterised by intense engagement, high value terror attacks, Indian responses, a breakdown of talks, and eventual resumption of talks; rinse and repeat — may well be a thing of the past.
Today, there is no political will for any grand relationship, grand gestures or grand outreach. The bilateral contact is tactical, business-like and unemotional. It is ironic that for a political party that was initially Pakistan-obsessed and used Pakistan for domestic political purposes, Pakistan occupies little space in the foreign policy agenda of the Bharatiya Janata Party (BJP) today.
The BJP government in New Delhi began with the standard package of engaging Pakistan. There was the invitation extended to Nawaz Sharif (the then Pakistan Prime Minister) for Narendra Modi’s inaugural function in New Delhi (May 2014), which Mr. Sharif attended, followed by Mr. Modi’s surprise visit to Lahore (December 2015), and the discreet meetings between the two National Security Advisers (NSA). In January 2016, even when the Pathankot airbase was attacked by a Pakistan-based terrorist organisation, New Delhi hoped that things would get better. But it was not to be.
The September 2016 terror attack in Uri, which led to the ‘Surgical Strikes’ by India, practically froze the relationship. The February 2019 terror attack in Pulwama, and the BJP government’s decisions made in August 2019 on Kashmir put the relationship in deep freeze.
Over time, New Delhi appears to have realised that it requires too much time, commitment and effort to make peace with Pakistan — and little guarantee that it will succeed despite all that.
This historical and experiential learning about the ‘futility’ of pursuing a normal relationship with its western neighbour has led to this current phase of minimalism. As a result, India-Pakistan relations today have been reduced to a backchannel conversation between the Indian NSA and the Pakistan Army establishment.
There are at least five reasons why the present age of minimalism has come to characterise India-Pakistan relations.
For one, the relationship is the history of missed opportunities, failed attempts at conflict resolution, political inability to resolve conflicts due to the dual power centre in Pakistan, and the lack of political will on either side.
These disappointments have led to a recognition in New Delhi, that making comprehensive peace with Pakistan is a fool’s errand. Second, there is a recognition on both sides that for all the talk about conflict resolution, there is no easy way to resolve their complicated conflicts and that, going forward, bilateral conflict resolution may get harder due to rising populism fuelled by online hate.
The frontliners of the first 1,000¬day window of life (Page no. 6)
GS Paper 2, (Issues relating to poverty and hunger)
Addressing malnutrition is critical to laying a strong foundation for human development. Optimal maternal nutrition and infant and young child feeding are the most effective set of interventions in reducing child deaths and disease, preventing malnutrition, in determining cognitive development, and in eventually enabling adult life productivity.
Specifically, the first 1,000 days of life, i.e., from conception to the first two years of a child’s life, are key as this phase presents a critical window of opportunity in ensuring optimal growth, development, child survival and lifelong health and nutrition. In fact, 80% of brain development takes place in the first 1,000 days of life.
To address the persistent high burden of malnutrition, India has been undertaking several policy and programmatic efforts which include the flagship programme, the Prime Minister’s Overarching Scheme for Holistic Nourishment (POSHAN) Abhiyaan (launched in April 2018) under the Ministry of Women and Child Development (MWCD).
Its overarching goal is to improve nutritional outcomes by focusing on capacity building, improvement of service delivery, community mobilisation and participation, use of technology, and inter-ministerial/inter-departmental convergent planning and review.
Additionally, there has been an enhanced focus on documentation of interventions coverage in the first 1,000 days, such as registration of pregnancies, antenatal checkup, and exclusive breastfeeding, as compared to the situation in 2015-16.
Evidence tells us that for bringing about change in nutrition outcomes, evidence-based interventions need to be delivered with high coverage, continuity (over the first 1,000 days of life and across delivery channels), intensity (multiple interactions), quality and equity.
The health and nutrition status of women, including the weight and haemoglobin level, age at conception, and levels of multiple micronutrients during periconception period, are critical determinants for the child’s health.
The criticality of preconception care, i.e., care before pregnancy, is acknowledged. In 2018, the Ministry of Health and Family Welfare worked with Maharashtra and UNICEF to introduce the first ever primary health-care innovation programme to promote the health of women during the preconception period, in the Peth and Sinnar blocks of Nashik district, Maharashtra.
During the programme, which was completed in 27 months, it was seen that promoting the health of adolescent girls and women not only promotes the health of the newborn but also prevents low birth weight, preterm birth, and newborn deaths. Its success led to it being scaled across several districts in the State.
Opinion
India’s G20 presidency and food security (Page no. 7)
(GS Paper 3, Food Security)
Global and regional food security have been deliberated upon as one of the priority agendas of the G20 for many years now. The situation has worsened with growing conflicts, and spiralling climate crises marked by droughts, floods, cyclones, and economic downturns in the past few years.
In this context, India’s presidency of the G20 offers a historical opportunity for the country to share its successful journey in moving from a food-deficit nation to a food-surplus nation, and address the growing challenges of food security for creating resilient and equitable food systems.
In 2021, through the Matera Declaration, G20 ministers recognised that poverty alleviation, food security, and sustainable food systems are key to ending hunger.
The Matera Declaration reflects the Indian concern for the welfare of small & medium farmers, promoting local food cultures and recognising agri-diversity,” External Affairs Minister S. Jaishankar tweeted in June 2021 from Rome.
There are many reasons why India is well placed to champion these ideas and rally commitments, as it takes over the presidency of G20 for a year starting December 1, 2022.
India’s journey in the last 50 years provides learning on sustaining growth in foodgrain production and improving food systems. One of India’s greatest contributions to equity in food is the National Food Security Act, 2013, which anchors the targeted public distribution system, the mid-day meal scheme, and the Integrated Child Development Services. Today, India’s food safety nets collectively reach over a billion people.
Since Independence, India initiated policy measures, land reforms, public investments, institutional infrastructure, new regulatory systems, public support, and intervention in agri-markets and prices and agri-research and extension.
The 1991-2015 period saw the diversification of agriculture with greater focus being given to the horticulture, dairy, animal husbandry, and fisheries sectors. The continued learning encompassed elements of nutritional health, food safety, sustainability, etc.
In the past three years, while responding to the pandemic, India has set a global example in alleviating hunger by bringing in the Pradhan Mantri Garib Kalyan Ann Yojana.
Through the mechanism of purchases of cereals from farmers, the government was able to provide a swift and resilient response to the COVID-19 pandemic, avoid supply chain disruption and economic shock using its robust public distribution system, add new measures, and underline how critical food and social safety nets are to achieving the right to food and the dignity of its population.
Explained
The Black Sea Grain Initiative (Page no. 8)
(GS Paper 2, International Relations)
In a move that allayed concerns about yet another disruption to global food supply chains, Russia on Wednesday re-joined the Black Sea Grain deal.
The reversal came a day after Russian President Vladimir Putin stated that Moscow would suspend, but not end, its involvement in the deal.
“The Russian Federation believes that the guarantees it has received currently appear sufficient, and resumes the implementation of the agreement,” news agency Associated Press quoted the Russian Defence Ministry as saying. It added that the mediation of the United Nations and Turkey had secured the continued cooperation.
The Black Sea Grain deal endeavours to tackle escalating food prices emanating from supply chain disruptions because of Russian actions in the world’s ‘breadbasket’.
Moscow had earlier said that the move was in response to Ukraine’s involvement in an attack on Russian ships in the Sevastopol port in the Crimean Peninsula (annexed by Russia in 2014).
Ukraine had refuted the charges. The development led to both United States and Ukraine accusing Russia of using food exports as a means to strengthen its position in the war.
The deal, brokered by the United Nations (UN) and Turkey, was signed in Istanbul on July 27 this year. Initially stipulated for a period of 120 days, with an option to extend or terminate thereafter in November, the deal was to provide for a safe maritime humanitarian corridor for Ukrainian exports (particularly for food grains) from three of its key ports, namely, Chornomorsk, Odesa and Yuzhny/Pivdennyi. The central idea was to calm markets by ensuring an adequate supply of grains, thereby limiting food price inflation.Ukraine is among the largest exporters of wheat, maize, rapeseed, sunflower seeds and sunflower oil, globally.
Its access to the deep-sea ports in the Black Sea enables it to directly approach Russia and Europe along with grain importers from the Middle East and North Africa.
Russia’s action in the East European country has now disturbed this route, earlier used to ship 75% of its agricultural exports – precisely what the initiative sought to address.
The deal put in place a Joint Coordination Centre (JCC), comprising senior representatives from Russia, Turkey, Ukraine and the UN for oversight and coordination.
News
NPR needs to be updated again to incorporate changes due to birth, death, migration: Centre (Page no. 10)
(GS Paper 2, Polity and Governance)
There is a need to update the National Population Register (NPR) again to incorporate the changes due to birth, death and migration for which demographic and other particulars of each family and individual are to be collected, the Ministry of Home Affairs (MHA) has said in its 2021-22 annual report published on November 7, 2022.
The NPR, first prepared in 2010 and updated in 2015 by collecting information of all usual residents of the country has been opposed by many Opposition-ruled States as the register, according to Citizenship Rules 2003 is the first step towards compilation of a National Register of Citizens (NRC). The Union government has clarified on multiple occasions that there was no proposal to compile the NRC as of now.
The report said that the NPR is prepared under various provisions of the Citizenship Rules, 2003, framed under the Citizenship Act, 1955.
In 2015, a few fields such as name, gender, date and place of birth, place of residence and father’s and mother’s name were updated and Aadhaar, mobile and ration card numbers were collected.
To incorporate the changes due to birth, death and migration, there is a need to update it again,” MHA said. The NPR that has a database of 115 crore residents is to be updated along with the first phase of Census that has been indefinitely postponed due to COVID-19.
MHA said NPR could be updated through self-enumeration as it is proposed to allow residents to update their own data fields after following some authentication protocols on a web portal.
The report, a compilation of all the achievements and functions of the ministry, however, does not mention the Citizenship Amendment Act, 2019 (CAA).
The legislation passed in 2019 that fast-tracks the citizenship of six non-Muslim undocumented communities from Pakistan, Afghanistan and Bangladesh who entered India before December 31, 2014 is yet to be implemented as the rules haven’t been framed yet.
MHA’s annual 2020-21 report had said that CAA is a “compassionate and ameliorative legislation” which does not apply to Indian citizens and “therefore, it does not in any way take away or abridge the rights of any Indian citizen.”
News
Electoral bond scheme amended, sale from tomorrow (Page no. 12)
(GS Paper 2, Polity and Governance)
Weeks ahead of the Gujarat and Himachal Pradesh polls, the Centre on November 7, 2022 amended the Electoral Bond Scheme to grant itself the power to spell out an extra fortnight of electoral bond sales in years when States and Union Territories with a legislature have polls, and used the power to open a fresh one-week window for issuing such bonds starting November 9.
The Electoral Bond Scheme was introduced in 2018 as an alternative to cash donations made to political parties, and the government had notified a ten-day window in October this year for what was the 22nd tranche of such bonds issued and encashed solely by the State Bank of India (SBI).
The Finance Ministry on November 7, 2022 notified changes to the Scheme to introduce a new para that stated: “An additional period of fifteen days shall be specified by the Central Government in the year of general elections to the Legislative Assembly of States and Union territories with Legislature.”
In an evening statement, the ministry said that the SBI has been authorised “in the XXIII Phase of sale” to issue and encash Electoral Bonds through its authorised branches.
“The Electoral Bonds shall be valid for fifteen calendar days from the date of issue and no payment shall be made to any payee Political Party if the Electoral Bond is deposited after expiry of the validity period.
The Electoral Bond deposited by an eligible Political Party in its account shall be credited on the same day.Only those political parties that are registered under Section 29A of the Representation of the People Act, 1951 and which secured not less than 1% of votes polled in the last General Election to the House of the People or the Legislative Assembly of the State, are eligible to receive Electoral Bonds.
While introducing the Electoral Bond scheme in January 2018 as a means ‘to cleanse the system of political funding in the country’, the Finance Ministry had said that these bonds shall be available for a period of 10 days each in January, April, July and October, as may be specified by the central government.
An additional period of 30 days shall be specified by the Central Government in the year of the General election to the House of People,” it had said at the time.