Saturday, September 19, 2015

IT IS MODI ALL THE WAY PART 23 - RESERVATIONS PART 4- REVERSE DISCRIMINATION AND SOLUTION- NO HARDIK TO ROUSE PASSIONS

IT IS MODI ALL THE WAY PART 23 - RESERVATIONS PART 4- REVERSE DISCRIMINATION AND SOLUTION- NO HARDIK TO ROUSE PASSIONS

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To discuss about affirmative action to protect the oppression, the deprived and the reverse discrimination that results in, we can rely upon a latest Section in Cr.PC, that succinctly explains the phenomenon. It is the section 498a. Let any man deny that women were the weaker sex and were harassed  by their husbands and in-laws on some pretext or other. Domestic harassment is one of the worst curses that Indian women face. The society around never allows a woman to go to a police station. To redress the grievance Section was 498 a was introduced with draconian provisions. The husband, in-laws, kith and kin etc., can be arrested with a simple warrant. Many have no time to approach courts (Men like Somnath can stay incognito until court intervenes and stays arrest, there are guys who can beat laws with laws or lows). It is imperative the accused should prove their innocence. Till then, they have to appear before courts every month until trial is over. In many states the offense is not compoundable. The wife, who complained can never withdraw the complaint nor come to a settle for monetary or physical reconciliation. Yes! Men deserved this kind of treatment for the ill treatment of the weaker gender. And, they got relief by way of the draconian law.

This is a series of blogs on the issue of reservations. For continuity please click on following links. 

http://chandvani.blogspot.in/2015/08/introduction-discussion-on-caste-based.html

http://chandvani.blogspot.in/2015/08/it-is-modi-all-way-part-12-reservations.html

http://chandvani.blogspot.in/2015/09/it-is-modi-all-way-part-13-reservations.html

But, the reverse discrimination started here. Those women whose parents can fight cases for a life started filing false cases on unsuspecting husbands. Reasons may be many. I know of a case where the girl has been pregnant at the time of marriage and the husband knew his competence, told his parents who questioned her about the child. She filed a case under Sec. 498 a and eighty year old parents are running to the court every month. In August, this year, they missed the date and pat came the NBW. The father of the girl was a powerful bureaucrat. God knows whether the case dies or the parents die of depression. This is called reverse discrimination. Please go through Lawyers' notes, you will find hundreds of false cases foisted. So, the weaker is harassed here as he has nowhere to go. 

Just think what happened to the muddle of reservations. Who got benefited and how many of the oppressed are more oppressed by a new neo-rich class among the once-oppressed classes. 

Affirmative action should never lead to reverse discrimination. And revenge is not a solution. Because a class harassed the other class, it is not meet to harass the posterity not is is meet to harass the already suppressed in their own clans.

"The Centre plans to decide on quota requests within six months. Everyone should be happy with a quick 'yes' or 'no'. Which also makes this the perfect time to put in place a system by which the aspect of 'till how long' is introduced into existing quotas. Affirmative action is one thing. But deciding how long a community needs to be provided reservations till it catches up with the rest is crucial to make quotas mean anything more than political sop-giving. Set a time limit for communities to be declared 'healed' and without the need of a quota 'crutch'."

I copied this from a column. (Unfortunately I forgot the source). With due regards to the author, I fully consent with him. I feel the sections (about 75 per cent of SCs, STs, OBCs) who really deserved quotas and were denied with the neo-rich, neo-empowered, neo-upper classes in the reserved categories keeping them away and those economically backward among the so-called upper castes, have a reason to be agitated and agitate. Those of them that are on streets today because their economic empires are crumbling due pro-active tax policies, their fear that black money stashed abroad will be brought back, their apprehension that the new Black Money legislation will demolish their economic empires built under corrupt regimes, those of them that fear the GST Act will expose their under hand dealings, those that fear their bank deposits come under scrutiny because of new laws and the fear of bureaucrats about   not remaining corrupt, digitalized India by which each of their nefarious activities are exposed by click of a mouse, are not the real ones that require reservations. Those that require reservations really cannot hire buses, spend crores to organize meetings, take support of disgruntled and extinct political parties and from left liberals that enjoy wealth abroad. Those deserving reservations do not belong to affluent communities that can threaten the ruling establishment in speeches. They are muted. Their time is spent in search of respectful livelihood. Their time is spent in searching affordable education to their children. Their time is spent in getting a pot of potable water. Their nights are spent in dreams of a bright future or nightmares about their past and present. They are hired by the rich to be killed in police action, as the rich leaders of agitations compromise for a benefit here or for a post there. These belong to all castes and creeds. They are the poor and lower middle classes. A Hardik Patel may say Nitish is our man,Naidu is our man, Kejriwal is our man, Jagan is our man. Do they need or deserve reservations? Do they need sops? Not they, but the unnamed and faceless poor in all communities need it. So, nation needs review of this practice, unfortunately being used by politicos for short term benefits. We do not need an affluent Hardik to spend crores on meetings. We want a voice that can move the sleepy State into "affirmative action" once again. We see a Modi here, a Naidu there, a Navin here, a Shivraj there, a Jayalaltha here, a Swamy there, a Raman Singh here, a Manik Sarkar there, drawn from the masses, educated, fighters for the cause of nation (Many more from many other sections of society) that can bring in the change in the constitutional provisions. We hope they will break the myth of castes and bring all under one umbrella to make the have-nots as haves and help in bridging the huge gap in incomes. For this steps are needed to be taken.

This leads us to discussion on "REVERSE DISCRIMINATION". Peculiarity of India is that here not only those out of reservation purview, but those within the ambit of the much touted reservation policy suffered from the flawed policy. Those out of purview were forced to migrate or suffer penury, those within were denied access by the already rich, reserved classes. Hence, the need of the hour is for all EBCs in all castes to make a strong case for reservations, excluding those who already enjoyed it for a generation. Those who get benefit from the new policy, will give way for their underlings, the poorer among them. Let the Constitution define division as haves and have-nots and fix a criteria for defining the have-nots. Bring the fractured society together. Let all religions accept this and help the have-nots in their religion, instead of pumping money for new poor converts,keeping the earlier flocks poor. Stop expansionism, start amalgamation.


REVERSE DISCRIMINATION: 

USA Specific

Reverse discrimination is discrimination against members of a dominant or majority group in favor of members of a minority or historically disadvantaged group. Groups may be defined in terms of race, gender, ethnicity, or other factors. This discrimination may seek to redress social inequalities under which minority groups have had less access to privileges enjoyed by the majority group. In such cases it is intended to remove discrimination that minority groups may already face. The label reverse discrimination may also be used to highlight the discrimination inherent in affirmative action programs. Reverse discrimination can be defined as the unequal treatment of members of the majority groups resulting from preferential policies, as in college admissions or employment, intended to remedy earlier discrimination against minorities.

Conceptualizing affirmative action efforts as reverse discrimination began to become popular in the early- to mid-1970s, a time period that focused on under representation and action policies intended to remedy the effects of past discrimination in both government and the business world.
The concept of reverse discrimination has two different meanings. In the broadest sense, it refers to discrimination against Whites or males in any area of life, including employment and education. In a narrower sense, it refers to the specific negative impacts Whites or males may experience because of affirmative action policies. The two meanings are often conflated, which leads to confusion and misinformation.

Here, historically whites and male whites were suffering and affirmative action made some of them suffer more than the others.

European Union SpecificEdit

In European Union law, reverse discrimination occurs where the a Member State’s national law provides for worse treatment of its own citizens or domestic products than other EU citizens/goods under EU law. This can happen because of the legal principle of subsidiarity that EU law is not applicable in situations purely internal to one Member State.

This is a peculiarity, where own citizens gets raw treatment by Law, when compared to citizens of other EU countries.

United Kingdom Specific

UK law draws a distinction between Equality of Provision and Equality of Outcome, particularly in respect to disability rights. The Disability Discrimination Act 1995 and the Equality Act 2010 make it clear that treating two people identically may not be sufficient to guarantee that they have been treated equally in law if the task, physical environment or service does not offer them equality of outcome.


This resulted in confusion of sorts, resulting in the ethnic minorities and women garnering top assignments and awards on the simple basis of their disability and the indigenous losing out, in as much as in November 2007, David Rosin, a former vice-president of the Royal College of Surgeons wrote in the magazine Hospital Doctor: “It is time that someone spoke up concerning the reverse discrimination with respect to merit awards” and saying that "female and ethnic minority consultants are being given preferential treatment to meet artificial quotas".

These nations are making conscious efforts to rectify the anomalies. As it does not form the subject of our discussion, I am skipping the nitty-gritty of these issues.

India Specific

In India, among the limited positions for higher education in Government institutions, 50 percent seats are reserved for members of economically disadvantaged castes and classes. Reserved category candidates can select a position from the Open 50 percent if he or she has good merit. This results in further reverse discrimination of Open/General/Non Reserved candidates. Further, since there are no economic criteria in classifying Reservation, poorer sections of reserved class often remain poor whereas the affluent section reap benefits for successive generations.[citation needed] Also, the poorer sections of Open/General Category become devoid of access to higher education for even slightly low merit on competitive exams. The difference in merit on entrance exams is often very wide between the reserved and unreserved classes. In India, the term is often used by citizens protesting against reservation and quotas.

Ref: Various papers, research articles and books on the subject.

India has a chequered history of "Class Discrimination". Though a colour of caste-sub caste was sought to be painted on the contentious issue, reality is otherwise. It was a struggle of the landless poor against powerful land lords. Rich poor disparities are universal. But people with opportunities always suppressed those people with no way to grow. Intelligent sections of the suppressed too grew in the society without any special benefits. Education and hard-work,coupled with determination to fight adversities made them big. Molla, the Telugu Poetess, fought the hegemony of the rich classes to remain an ever-great mythological writer. Her Molla Ramayan is very famous. Examples abound.

But continued suppression calls for affirmative action. Unfortunately, for India, our law makers decided the easy way of reservations in education and jobs instead of concentrating on growth of individuals by earmarking more funds for education, skill development, revival of old age small entrepreneurships, small businesses and artisan ships etc.,  This is where the call of the Prime Minister to open up a Tertiary Sector "PERSONAL SECTOR" assumes significance. This in effect means " skill development" or "self development".

Reservations to sections of population based on caste and not on class as enshrined in the Directive Principles in Part iv of Constitution led to sections of these reserved communities who already had access to education and employment to grab the available posts. Where suitable candidates were not available these posts were kept vacant creating a vacuum in the administration. Besides, this led to disenchantment in the caste groups who could not compete with richer ones among them. Agitations started in many states asking for further regrouping of castes. In the 1990s, Pandora's box was opened by including a plethora of castes and sub-castes as one group OBCs making India vertically divided with 51% on one side and 49% on the other. Neither all of 51% were unhappy nor all of 49% were happy, as class division was never addressed and by extending reservations every decade, the society started growing impatient, at the vote bank politics of reservations.

A classic example of this reservation muddle was grouping all families belonging to one Caste, as defined by laws of the land and not by laws of nature. All Yadavs were classified as BC. Yadavs in one state are very rich and in another state are too poor. You can imagine who grabs the fruits of reservation. It took decades for these marginalised sections of the SCs,STs, OBCs etc., that they were being used as tools to create a neo-rich class among their own clan, reminding them of the age old Zamindari system. In some parts of the country even untouchability was practiced in these so called communities. One top political leader was said to have invited ten thousand guests for the marriage of his son, but not even one among the other sect, including top politicians, was invited and said they were lower sect in their grouping and they could notshare the same table.

There started the clamour for sub-grouping of the group and politicians successfully used the divisions to their advantage. The classic case of REVERSE DISCRIMINATION went unreported.

In the case of upper castes too, this discrimination was never addressed. Let us take the case of Brahmins in AP. In AP there are two main sects of Brahmins. One was Niyogi, who were mainly Village Officers and rich, with access to higher education. The other were Vaidiki who were mostly priests, with access and interest in Vedic education and a bit less in the economic order. In Priest community too there were Vishnanvites, Shaivites and some other sub-sects. All in one sub-sect were not rich nor all in the other all poor. All were classified as Upper Castes. So, poorer among the Brahmins here started feeling the pinch of reverse discrimination.

Constitution makers would better have followed the Article 16 of the constitution that states, inter alia, that

No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.



Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. 



Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.



Two noteworthy points in this article are the state will not discriminate on caste and if any class is to be provided nothing prevents the State from enacting laws. The Article is clear, it is class (rich-poor) not caste that should determine the "affirmative action".


Article 14 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.


Article 38 states, inter alia, "The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations".


Article 39 states, among other things, thus.

"that the citizens, men and women equally, have the right to an adequate means to livelihood".

Reservation of seats in Legislatures was mooted for Anglo Indians and SCs and STs by Articles 331 and 332. Article 334 placed a bar on reservations under Art.331 and 332 after forty years. Article 335 states

Claims of Scheduled Castes and Scheduled Tribes to services and posts The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

Merit was laid as criteria and reservations should have ended in 1990. Both did not happen. Hence, the resentment on Reverse Discrimination is growing. But the solution offered by Hardik Patel is not a end-all. A policy in existence for 60 years cant be reversed over-night. All stake holders should have a say. The deprived sections among reserved classes must be educated what they lost. Economic condition must be the top priority. If required, out of EBCs a portion can be set aside for the totally deprived among the suppressed classes. But this should be restricted to one generation.

New, modern educational institutions should come up for EBCs of all classes everywhere. Skill development must be priority. New technology should reach them. They should be able to earn lively hood through self employment. The mad rush for government posts should come down. With nation on the growth path, this is time government aims at affirmative action on this count.

I will close the blog with an example. Let us take the case of A and B from the same village and from the same sub- caste of the main caste. One was rich by inheritance, received education in British Schools but could not into a job as he could not compete with the more meritorious or due to his rural background., The other was a son of a farm labor, whose father used to use him as farm-help with no formal education. Soon after affirmative action was initiated by government through Constitution, the already educated unemployed landed in the IAS in Delhi at age 30. The farm laborer remained back. The IAS retired at 60, in 1980 and by that time his two sons and two daughters were IAS, IPS, Doctor and Engineer through reservations at ages, 30,32,34 and 35.. Farm laborer's children remained farm laborers as no affirmative action was initiated to establish a modern school in the village and he could not afford to send them out of the village. The grand children of the IAS too settled by 2010 in plump positions thanks to the continuing reservations. The village is yet to get a school, power, irrigation and the grand children of the farm laborer remained farm laborers or small farmers. The politicians have been showing the carrot of reservations still, without providing basic facilities to those deprived of reservation due to poverty. If this continues, the IAS clan will one day rule the farm laborer clan and suppress them so that they will never compete. Whither lies the solution?. If. in 1950, the government thought of a dual policy of providing reservations, say for 15 years, and educated the children of the down trodden, the down trodden would have competed with the reserved category and there would  have been no need to reservations. Or alternatively, even if reservations continued for A hundred years and restricted to one generation,children of IAS (reserved) would have fought hard to stay in competition and still would have been an IAS, IPS, a Doctor and an Engineer. What prevented them? They were in Delhi, father was rich, might be mother too was IRS (reserved) with the best education available. Simultaneously, grand children of farm laborer too would have been in top positions, thanks to education and not windy promises. Then, we would not have seen a Hardik Patel on streets to safe-guard the empires of a community from tax webs. Or an Arvind Kejriwal to cough up lies to grab power and protect criminals and ultras.


So here, the need for a fresh affirmative action is needed.

1. Educate masses in the SCs, STs and OBCs that they are being deprived of reservation benefits due to flawed policies. Rope the in.

2. Take other upper classes into confidence telling them that economically backward among them will receive reservation benefit for a generation and they may have to sacrifice two generations of reservations to the lowest of low classes as they take time to come to main stream.

3. Establish schools with modern facilities in all villages or Taluks, Mandals and see that free education with free food is provided to all children. Instead of making them the colonial era clerks, let them develop skills and become "PERSONAL SECTORS".They grow, country grows. 

4. Immediately establish a Committee to study the new policy. Include representatives of main groups, educationalists, reformers, foreign advisers, CEOs of Companies, Jurists etc., and no politicos. Let there four groups to study the four regions North, South, East and West. Let there be a special group for J&K and one special group for North East, where special conditions prevail.

5. Let the message of "Sab Ke Saath, Sab ka Vikaas" reach the down trodden who were taken for a ride by the Pyzama parties with big tunnels in their pockets directly linked to Swiss Banks.

The Articles of Constitution quoted supra are provided below. 



Swasthi prajabhya paripalayantham,
Nyayena margena maheem maheesa,
Gobrahmanebhyo shubhamasthu nithyam,
Loka samastha Sukhino bhavantu.

Kale varshathu parjanya,
Prauthwee sasya shalini,
Deso yam kshobha rahitha,
SAjjana santhu nirbhaya.

Aputhra puthrina santhu,
Puthrina santhu pouthrina,
Adhana sadhana,
Santhu jeevanthu sarada satham.

Sarvathra sukhina santhu,
Sarve santhu niramaya,
Sarve bhadrani pasyanthu,
Ma kaschid dukha bhag bhaveth.

Om Sarvesham swasthir bhavthu,
Om Sarvesham santhir Bhavathu,
Om Sarvesham poornam Bhavathu,
Om Sarvesham Mangalam Bhavathu.

Om Santhi, Om Santhi, Om Santhi




REFERENCES:

Article 14 in The Constitution Of India 1949
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 16 in The Constitution Of India 1949
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination

Article 38 in The Constitution Of India 1949
38. State to secure a social order for the promotion of welfare of the people
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life
The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations
Article 39 in The Constitution Of India 1949
39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing



that the citizens, men and women equally, have the right to an adequate means to livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment

Article 331 in The Constitution Of India 1949
331. Representation of the Anglo Indian community in the Hose of the People Notwithstanding anything in Article 81, the President may, if he is of opinion that the Anglo Indian community is not adequately represented in the House of the people, nominate not more than two members of that community to the House of the People

Arrticle 332 in The Constitution Of India 1949
332. Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States
(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in Nagaland and in Meghalaya, in the Legislative Assembly of every State
(2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam
(3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in th State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved bears to the total population of the State
(4) The number of seats reserved for an autonomous district in the legislative Assembly of the State of Assam shall bear to the total number of seats in that Assembly a proportion not less than the population of the district bears to the total population of the State
(5) The constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district
(6) No person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district

Article 334 in The Constitution Of India 1949
334. Reservation of seats and special representation to cease after forty years Notwithstanding anything in the foregoing provisions of this Part, the provisions of Constitution relating to
(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and
(b) the representation of the Anglo Indian community in the House of the People and in the Legislative Assemblies of the States by nomination, shall cease to have effect on the expiration of a period of forty years from the commencement of this Constitution: Provided that nothing in this article shall affect any representation in the House of the People or in the legislative Assembly of a State until the dissolution of the then existing House or Assembly, as the case may be

Article 335 in The Constitution Of India 1949
335. Claims of Scheduled Castes and Scheduled Tribes to services and posts The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State
MAIN THEME WAS TAKEN FROM THIS BLOG BY Dr M N Buch, Centre for Governance and Political Studies, VIF

http://www.vifindia.org/article/2013/october/21/when-reservation-becomes-reverse-discrimination