MassiveYFE Rally on 31st May, Saturday
MassiveYFE Rally on 31st May, Saturday
There was another India on the road of Delhi when more than 3000 students gathered at the Maulana Azad Medical College, New Delhi to register protest against the illogical and illegal implementation of OBC reservation at the level of Higher and Professional education. Students from all over the country joined the massive rally. Mostly medical students of various medical colleges which includes Maulana Azad Medical College, University College of Medical College, Lady Harding Medical College, All India Institute of Medical Sciences, LNJP, DDU, GBP and others of Delhi.
Representatives from Rohtak, Chandigarh, Jaipur, Cuttack, Patna, Bhopal, Ahemadabad, Shimla, Ranchi, Kolkata and Mumbai landed in Delhi to participate in the massive rally. Students from various universities like JNU, DU and IP University also participated in the rally.
The entire route of Delhi from the Maulana Azad Medical College to Jantar Mantar was full of activities of young YFEians. The students have shown the resilience of the power of youth. The military style discipline and the strategist like precision in projecting the idea and ideals of Youth For Equality was on full display. The students requested the pedestrian and common people at various intersection of the city to ponder the divisive policy of the government through pamphlet and words of mouth. The significance of the rally was the power of youth which was not affected by the multiplicity of adversities.
The media was curious and cynical to know that – if YFE can do anything, especially when the Parliament has passed the reservation bill and the Supreme Court has already delivered its judgment in favor of OBC reservation? The media also asked that if the YFE can go against the Chief Justice, Prime Minister and HRD Minister?
The answer was categorical – no one is above the constitution of India. This is applied to the the Chief Justice of India, Prime Minister of India and to the HRD Minister! Their mistake is also subject to scrutiny. The constitution of India starts with the line “WE THE PEOPLE” and not “WE THE REPRESENTATIVE OF PEOPLE” or any thing like that. The people of this country can change the destiny of the country. They can also change the ill mannered and partisan person if any at any position!
With this pledge the students concluded the Rally with a street play at the Janpath Crossing near Cannaught Place.
Also the 11 day long hunger strike at the MAMC was ended with a renewed promise to fight the injustice and revert the upcoming civil war on caste line and on caste based reservation line.
The Youth For Equality representatives submitted a memoranda to the President of India and to the Prime Minister of India.
Mrs. Pratibha Patil
Hon’ble President of India
Keeping aside all the formalities we the students of this country sit down to write and request you to interfere in an important policy matter recently imposed by the Union Human Resource Development Ministry at the level of higher professional education. The Resolution No. 1-1/ 2005-U.1A/846 dated 20th April, 2008 of the Ministry of Human Resource Development, Department of Higher Education asking for the implementation of the OBC reservation, especially at the Master Degree level and beyond, is a blatant transgression of the Hon’ble Supreme Court Order delivered on 10th of April 2008.
The Supreme Court Order is categorical on the above subject. The majority judgment as Justice Bhandari said “once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter.” Subsequently Justice Pasayat and Justice Thackker said “While determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness.”
The bench further said which applied to us and we quote from Justice Pasayat and Justice Thackker’s judgment “the Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs). By way of illustration it can be indicated that five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general categories of students. This would ensure quality and merit would not suffer. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of the constitutional creed. It is, therefore, the best and most meritorious students that must be selected for admission to technical institutions and medical colleges and no citizen can be regarded as outsider in the constitutional set-up without serious detriment to the `unity and integrity’ of the nation. The Supreme Court has laid down that so far as admissions to post graduate course such as MS, MD and the like are concerned, it would be imminently desirable not to provide for any reservation based on residence or institutional preference. The need of a region or institution cannot prevail at the highest scale of specialty where the best skill or talent must be hand-picked by selecting them according to capability. At the level of Ph.D., M.D. or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations we have expanded upon as important, lose their potency.” Justice Bhandari said “In the case of higher education, the universities that admit the best will likely churn out the best. The point is that universities alone cannot produce qualified job candidates. Forced to admit students with lower marks, the university’s final product will not be as strong. I urge the Government to set OBC cut off marks no lower than 10 marks below that of the general category.”
Through this letter we like to inform you that the Hon’ble Supreme Court’s Order is one parameter/direction (to which the whole nation is bound to obey) and the HRD Ministry’s order is another parameter/direction comes out of political/executive connivance. The HRD Ministry’s order is meant to accommodate political interest of the party at the helms of affairs.
Dear Madam, medical students from different Medical Colleges of Delhiand outside are sitting on peaceful hunger strike to attract the attention of the Central Government and of the Supreme Court of India. If the grievances of the striking students are not addressed, unknowingly it may consider as the promotion of Gujjar like protest in the future. Your kind intervention is highly solicited.
- Constitution of a Collegium on the acts and observations made by the Hon’ble Chief Justice of India on 16th May 2008.
- a)Hon’ble Chief Justice of India vacated the stay imposed by Kolkata High Court (11.30) even before receiving the written document (5.30).
- b)As said by the Hon’ble Chief Justice of India, basis of vacating the stay was that the State High Court cannot stay a Supreme Court order, however, stay wasn’t on the Supreme Court’s order but the Government order.
- c)Chief Justice of India said that creamy layer is a class concept not an individual concept.
- d)Application of different yardsticks by allowing provisional admission in our case and withholding them in a similar case on a similar issue on the day. Why this disparity??
- e)Clarification given by Hon’ble Chief Justice of India of the statements made by the 2 Senior Judges, Justice Dr. Arijit Pasayat and Justice C.K. Thakker. The proper clarification can only be expected by the judges that gave the statements.
- No reservation after graduation.
- Redefining the Other Backward Classes not on the basis of caste but on the individual basis including economic criteria.
- Issue a notification of fresh list of OBC beneficiaries.
- Timely implementation of Right to Education Act.
YOUR TIMELY INTERVENTION ON THE BASIS OF FOLLOWING POINTS MAY SAVE THE NATION FROM FURTHER FRAGMENTATION
- The Constitution Bench of the Hon’ble Supreme Court in its Judgment dated 10.4.2008 has held that graduation should be the yardstick for majoring educational backwardness. The question as to the yardstick to measure educational backwardness was squarely raised before the Constitution Bench. While three Hon’ble Judges (Pasayat, J., Thakker, J., and Bhandari, J.) have expressly ruled that a person ceases to be educationally backward upon attaining graduation, Hon’ble the Chief Justice of India and Raveendran J., have not expressed any opinion on the yardstick and Hon’ble the Chief Justice on India has simply rejected the argument that the yardstick should be matriculation or 10+2. The resultant position is that the Bench, through a majority, has held that backwardness ceases upon the attainment of graduation. Logically, this means that there can be no reservation in Post Graduate Courses, as a person seeking admission to such Post Graduate Courses would not be backward.
- The Hon’ble Judges comprising the Bench have been unanimous in saying one thing: the definition of “Other Backward Classes” in Sec. 2(g) of the Act should be read as “Socially and Educationally Backward Classes”. Educational backwardness vanishes on a person attaining education upto the level of graduation. Therefore, it is clear that the provision for reservation of seats in the Act will not apply to post graduate courses. While Bhandari, J., has expressly held that there can be no reservation of seats in post graduate courses, the effect of the majority opinion on the question of yardstick to measure educational backwardness leads to the same conclusion. It is therefore the judgement of the court that there cannot be any reservation in post graduate courses.
- The Hon’ble Judges comprising the Constitution Bench have been unanimous giving the direction to exclude the creamy layer while implementing the reservation provided under the Act. Speaking of the necessity to exclude the creamy layer, Hon’ble the Chief Justice of India, in his judgment talks of excluding persons who have attained economic and educational advancement. The following excerpts from the judgment are crucial in this context:-
- It is to be understood that “creamy layer” principle is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced or educationally forward. They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the “Creamy Layer” principle is not applied, it could easily be said that all the castes that have been included among the socially and educationally backward classes have been included exclusively on the basis of caste. Identification of SEBC for the purpose of either Article 15(4), 15(5) or 16(4) solely on the basis of caste is expressly prohibited by various decisions of this Court and it is also against Article 15(1) and Article 16(1) of the Constitution. To fulfill the conditions and to find out truly what is socially and educationally backward class, the exclusion of “creamy layer” is essential.
- It may be noted that the “creamy layer” principle is applied not as a general principle of reservation. It is applied for the purpose of identifying the socially and educationally backward class. One of the main criteria for determining the SEBC is poverty. If that be so, the principle of exclusion of “creamy layer” is necessary. Moreover, the majority in Indra Sawhney’s case upheld the exclusion of “creamy layer” for the purpose of reservation in Article 16(4). Therefore, we are bound the larger Bench decision of this Court in Indra Sawhney’s case, and it cannot be said that the “creamy layer” principle cannot be applied for identifying SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities in education thereby raising educational, social and economical levels of those who are lagging behind and once this progress is achieved by this section, any legislation passed thereunder should be deemed to have served its purpose. By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination.”
It is therefore apparent that upon attaining educational advancement, a person is included in the creamy layer as he is no longer suffering from backwardness. The Supreme Court has been clear in its direction to exclude creamy layer. The direction necessarily implies that reservation should not be extended to Post Graduate Courses in Educational Institutions. The action of the Respondents in providing reservation to OBC is clearly illegal and in the teeth of the law laid down by the Supreme Court.
- The Office Memorandum dated 20.4.2008, in paras II and III contain sweeping instructions, without excluding Post Graduate Courses. In the light of the mandate to exclude creamy layer, the Respondents ought to restrict reservation under the Act only to courses upto the level of graduation. Persons applying for admission to Post Graduate Courses have necessarily to possess the qualification of a graduate degree and are therefore outside the purview of OBC which is to be read as SEBC as per the judgment of the Supreme Court. The Office Memorandum is clearly illegal and unconstitutional.
- The imperative to provide reservation was to achieve a level playing field. The underlying purpose was to achieve the true spirit of equality pervading through the provisions of Part III of the Constitution by bringing backward classes upto a level where they are on par with the mainstream. It is therefore obvious that reservation was conceived as an extreme measure to be used only to achieve a level playing field. It is in this context that the Supreme Court has held that upon attaining the educational level of graduation, a person would no longer be backward. The logical corollary is that reservation cannot be extended to educational courses beyond the level of graduation. The action of the Respondents in providing reservation even in Post Graduate Courses is therefore clearly unconstitutional.
- The policy of providing reservation to backward classes was conceived as an extreme measure of affirmative action. Affirmative action in its true spirit and contend means empowering the backward classes to shake off their backwardness and be equipped to achieve higher levels of education. Provision of reservation at the post graduate level can surely not be a measure of affirmative action: it is a retrograde measure. There is no rational basis for provision of reservation at the post graduate level. Such action is illegal and arbitrary, violative of Article 14 of the Constitution of India.
- The provision of reservation at the post graduate level is oppressive to persons who are not included within the category of OBC and who have to compete for admission. The Supreme Court has read down the definition of OBC in Section 2(g) of the Act to mean Socially and Educationally Backward Classes (SEBC). Upon attaining the graduate degree, a person ceases to be backward and therefore the provisions of the Act cannot have any application to the category to which such a person belongs. The reason for the Supreme Court accepting the classification for purpose of providing reservation is that the classification would be legal and valid only if such classification is based on the criterion of educational backwardness. The yardstick to measure educational backwardness has been held to be graduation. If this criterion is dispensed with, the classification becomes illegal and unconstitutional as offending Article 14. Since persons who are educated upto the graduate level are no longer backward, including them in the category of persons for whose benefit reservation is envisaged would be per se illegal as not being based on intelligible differentia. The provision of reservation at the post graduate level would also not have any rational nexus to the object sought to be achieved. Such a measure is ex facie irrational and unreasonable.
- The action of the Respondents in providing reservations at the post graduate level to “Other Backward Classes” is violative of Article 15 (4) and 15(5). This measure will not qualify as a special provision for the advancement of any socially and educationally backward class. The backwardness is removed once a person attains the level of graduation. It is plain that such a measure of providing reservation at the post graduate level is antithetical to the provisions of Article 15(4). The enabling provision in Article 15(5) also does not admit of reservation at the post graduate level. The yardstick to measure backwardness is the same for Article 15(4) and 15(5) and therefore, once the backwardness is removed, it is unconstitutional to provide reservation.
Dear Madam, we have a feeling that in this country, the legislature, political executive and judiciary are fond of behaving in partisan manner. It has also been observed that what they espouse as the so-called ‘affirmative action’ principle for educational institutions and government jobs are denied by them when it comes to the question of reservation in parliament and legislative constituencies and judiciary. Please, ask for an explanation from these establishments whether a rational and meritorious brain is needed for the execution of judicial, legislative and executive activities only; and not in the life saving medical professions and other occupations.
Esteemed President, we appeal you to please use your good office and all other possible means to establish rule of law and restrict the divisive policy by the law makers.
Youth For Equality
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