Indian Medicos' strike acts as a catalyst
EQUITABLE SOLUTION TO RESERVATIONS ISSUE
(By Prof. Gulshan Bajwa. e-mail: themissociijuris@yahoo.com)
1. ‘Reservations’ is a concept, not a gospel. And like any other concept its workings may, over a period of time, reveal either its inherent weaknesses or its inappropriateness to the changed environment or the possibility of better alternatives.
The only pedestal on which the concept of reservations stands today, is that it is enshrined in the Constitution of India. Nevertheless, it is as amendable as any other provision of the Constitution. And we know that the Constitution has been amended several times.
Moreso, reservations is merely a concept, not even a philosophy—the underlying philosophy is the upliftment of the hitherto neglected classes/categories of the people. And for that matter, even the people of the North-East and the far North had been neglected.
2. The current Conflict of mutual Rights between the various sections of our Society apparently stem from the non-performance over the past two years by the UPA Government, Consequently, the UPA fears that it may not come back to power in the next General Elections unless it uses certain political gimmicks--such as the caste-factor.
However, the following facts do suggest that by doing so, the Central Government is taking a stand which is wholly inconsistent with any sound economic policy:-
Much more foreign direct investment (FDI) is attracted by China--a country which was, till the recent past, on the other side of the Iron-Curtain, than the FDI trickle into India. However, almost all these investments are for producing goods for the Regional International Market (Asian/North-Eastern/Central Asian/African/East European)—it is only the Services sector (especially the IT) which produces for the Western Market.
The reasons for the reluctance of foreign investors in investing into such industries in India, as may generate employment locally and produce goods for the International Market (Regional or otherwise) are not far to seek—we have frequent labour-strikes, power-breakdowns, a multi-dimensional & corrupt Inspector-raj (Inspectors under the ID Act, Inspectors under the Factories Act, Inspectors from the Electricity Deptt., so on and so forth ), irrational licensing regimes, poor infrastructural facilities, and a very poor law & order situation, amongst others.
3. On the other hand, all the major FDIs today aim at the Global Market--which mandates survival of the most competent and, in turn, necessitates 'recruitment by merit'.
Yet the file-pushing Economists in the UPA Government—which is unaware of the ground-level situation, are irrationally bent upon forcing even the private-players in India to recruit by CASTE.
If this unwise & unsound policy is forced upon the MNCs, then the FDI will obviously shy away from this country.
If this policy is to be discriminatively used against the local industrialists only, then the local industry—which is already suffering from the problem of inferior technology, shall also suffer because of the poor quality of the recruitable human resources (although, but for the reservations policy, better resources ARE available locally).
4. As a result of the existing-cum-proposed reservation policies, the best educational & vocational avenues will be grabbed by the less talented—at the cost of those who are the best.
The best brains will, therefore, continue to find greener pastures abroad—thereby contributing to the differential development of the industries owned by their foreign masters, not Indians.
Except for a few pockets of activity (like the IT & space-research)—which employ only a limited number of the locally available talent, the Indian Industry might as a whole face a virtual collapse.
5. It is pertinent to mention that most of the MNCs are here not to invest for the purpose of generating employment or boosting our Nett National Product, but solely with the view to create demand for their own consumer (durable) products--by offering better quality at comparatively cheaper rates and extending (through Foreign Financial Institutions) attractive-looking consumer-loans.
Surprisingly, this investment has been attracted solely because theses FFIs perceived that they could use our local weaknesses to their own advantage. For example, they are using the corrupted sections of our police & judicial machinery as an ‘infrastructure’ for promoting their business—this machinery unofficially aids them in recovering the loans advanced by these FFIs.
Hence, the MNCs & FFIs are here solely because they have learnt the art of using our weaknesses to their own advantage.
6. The Doctrine being proposed in this Article is:-
‘Equitable balance between conflicting Rights’. This Doctrine has evolved over the Centuries as a result of experimentation & consequent sufferings.
Since time immemorial the need to regulate social life (in its various facets) has been recognised—be it through the tribal Chieftains, the Monarchy (Kings & Emperors), the Politburo of the Communes of Peasants & Workers, or the Democratically elected People’s Representative(s).
However, over the times, the guiding philosophy/policy in governance has undergone a sea-change, as under:-
a) Laissez faire: Let the social dynamics determine the inter se relations between the people—the Monarch intervenes only when serious aberrations are pointed out to him.
Benevolent King: Maximum good of the maximum number of people—minorities may be by-passed.
c) Communes: The Joint-Family philosophy of ‘from each according to his capacity, and to each according to his needs’.
d) Democracy: Equitable balance of conflicting Rights. This principle/concept imbibes the philosophy, “Your Right ends where the injury to my nose becomes imminently likely”. And the same has been incorporated into many laws, to cite a few examples:
i) the principle of tortious liability under the Public Law;
ii) the concept of reasonable restrictions on Personal or Group-Rights;
iii) the equitable requirement of a level playing ground between the State and the accused—free legal aid, in deserving cases, to the poor;
iv) the regime of reservations/quotas for the ‘socio-economically weaker/backward sections’ of the Society.
Hence, the solution to the current burning problems—like the reservations in the educational Institutes and the demolitions in Delhi, lies in judiciously striking an equitable balance between the conflicting Rights of ‘Advancement by Merit’ and ‘Piggy-back Riding’. Therefore, judicial intervention is eminently required.
7. The need for Judicial Activism arises when:-
a) The legislative process is not pro-active, is too slow to respond to a social crises—a crises which has grave ramifications either for the pure stream of the administration of Justice or for the functioning of the Constitutional machinery itself, or for a section of the citizens;
The Executive/Legislative organ of the State fails to comply with the statutory mandate(s) or fails to live up to the reasonable expectations of the people, and the facts & circumstances of the matter are such that a Public Interest Litigation would ordinary lie—though no public-spirited individual/group is coming forward to take up that particular cause;
c) In a democratic set up, the Legislature—acting on the principle of ‘majority of votes’, passes a piece of legislation which is inequitous & harsh to the interests of a section of the citizens whose Rights are in direct conflict with the other section(s).
Clearly, in the present scenario of medicos’ strike the need for judicial intervention is eminently called for.
Proposed Equitable Solution to the Reservations Issue:
A) The existing reservation or quota system ought to be reviewed because it is, in effect, a propagation of the same evil--earlier an individual was ‘deprived’ because of his/her caste, and now he/she is ‘rewarded’ solely for his/her caste itself.
In both the cases, this system of ‘deprivation’ or ‘reward’ is not related to the individual’s own commitment to excel in his/her socio-economic contributions.
The system of reservations rewards the caste itself for the individual’s education, employment & promotions. And at no stage during the period of his/her education or career, this system requires him/her to introspect as to whether he/she is being overly dependant upon caste instead of merit?
In fact, the present system of a ‘life-long reservation’ has led to complacency within the beneficiary and also lowered the efficiency of the Society as a whole.
Hence, the present system of reservations/quotas ought to be revised and/or replaced with an equitable Scheme for the upliftment of the SC/ST/OBC and the Economically Weaker Sections (EWS, for short).
The following alternative is suggested:-
a) The National Commission for SC & ST shall create a website which should be updated daily. This site shall contain complete details of all the ‘beneficiaries of the proposed Scheme’. This Scheme is available only to those SC, ST, OBC & EWS individuals who are bona fide citizens of India.
The data for the website will be generated by the method(s) listed herein below.
The said Commission shall allot a computer-generated Unique Identification Number (UIN, for short) to every SC, ST, OBC & EWS person who meets the Qualifying Requirements (QRs, for short) and also wishes to receive the ‘benefit’ of the Scheme mentioned herein. Every such person shall be issued a UIN-Card.
c) Under the Births, Deaths & Marriages Registration Act it is already compulsory to register, inter alia, the birth of every child. Hence, the only permissible proof--to qualify for the benefits under the proposed Scheme, shall be as under:-
i) he/she is the legitimate child of a man who is himself an SC/ST/OBC, and he/she is not the adopted or fostered child—this clause is not applicable to the EWS; and
ii) an entry—showing his birth and parentage etc, has been made in the Register which is prescribed under the said Act (this clause is not applicable to the EWS); and
iii) he/she is born to parents whose marriage is valid and registered under the said Act (this clause is not applicable to the EWS).
iv) he/she does not belong to the ‘creamy layer’ of the SC/ST/OBC.
Thus, the QRs for the SC/ST/OBC will be his/her conception by a father who is himself an SC/ST/OBC, and the claiming beneficiary’s birth out of a valid wedlock between his/her parents.
If his/her birth or his/her parents’ marriage has not been registered as aforesaid, then it shall be necessary for him/her to move an Application before the Ld. SDM concerned, prove the said marriage as well as the said birth--by adducing legally admissible evidence, and obtain a decree/order for making an entry in the Register(s) prescribed under the said Act.
c) On the basis of the moderated (agreed) proportion which the number of SC & ST bore to the total Indian Population--as per the 1951 Census, a value shall be ascribed to the letter ‘x’ (which is used hereinbelow to describe the working of the proposed Scheme).
d) Every SC/ST individual who has a Unique Identification Number shall receive ‘x’ percentage points as a “life-time kitty”.
The kitty of every OBC who has a UIN, shall be ‘70% of x’. And the ‘economically weaker sections’ shall have the choice either to opt for a one-time scholarship of a prescribed amount or to receive a kitty equivalent to ‘40% of x’
It shall rest with the recipient-individual as to when and how much of the ‘x’ in his/her kitty, he/she would like to use at different stages of his/her education and career.
Every time he/she uses (expends) any portion of his/her ‘x’, the same shall be reported by the Authority (Office/Organisation/Institute) from whom the ‘benefit’ has been taken in exchange for a portion of the said ‘x’, and his/her data on the website of the aforesaid National Commission shall be accordingly updated. An entry shall also be made of every such transaction, in his/her UIN-Card as well as on his/her Admission-Card, Employment-Card, concerned Certificate (degree/employment certificate etc)—as applicable.
e) Here is an example as to how this ‘x’ (let’s say, 20 percentage points) may be exchanged for a tangible benefit under this Scheme:
Suppose the person holding the UIN-Card gets 55% marks in the CBSE Exams and wants to sit for the Medical/Engineering Entrance Examination--which permits only those who have secured 60% marks to sit for the said Exams. The UIN-Cardholder can exchange 5% points out of his said UIN-Card, but then he/she will be left with only 15 or x minus 5) percentage points in his/her kitty.
However, there shall be a ceiling upto which the number of percentage-points may be exchanged by him/her for a particular Examination/Selection—so that a virtual mediocre does not qualify to sit for the said Exams by virtue only of his/her having spent the whole of the kitty on the said single Exams.
Let us consider further that he/she gets only 65% marks in an Examination which is held for recruitment to a particular cadre, then he/she can expend another portion of the ‘x’ which is still available in his/her kitty, and thereby upgrade the marks actually obtained by him/her at the said Exams—however, there will again be a cadre-wise ceiling (in terms of percentage points) beyond which he/she shall not be allowed to expend ‘x’ for the recruitment to the said cadre. For example, for selection into the IAS/IFS the ceiling may be 1 point, for Allied Services/IPS it may be 2, for Class-II Gazetted posts, it may be 3, and so on & so forth.
Supposing he/she now expends--within the permissible ceiling, another 5% points. Then he/she is left with only 10 or (x-5-5) in his/her kitty.
He/she may enter into similar transactions until his/her kitty lasts.
Under this Scheme he/she will not only be tempted to judiciously use the said kitty but also be encouraged to supplement this kitty with own hard work--in order to conserve his/her kitty for better opportunities. In the result, he/she shall no more be complacent, and the efficiency of the Nation, as a whole, will also increase.
Moreso, all the horses will get an even track to run—albeit with handicaps (as measured by ‘x’). Nevertheless, the more meritorious shall always succeed in the long run.
f) From the long-term point of view, it may be necessary to lay down that these percentage points will be available in full to the 1st & 2nd child born to a particular parents. But the kitty available to each successive child sired by the same father, shall be reduced to ‘x-1’.
Similar deduction from the child’s kitty should also be made if, at the time of his/her birth, one or both of the parents of that child fall short of the legally permissible age for their marriage.