- Creamy layer among SC/ST
- Citizenship Amendment Bill
CREAMY LAYER AMONG SC/ST
Why in News?
The Centre has asked the Supreme Court to constitute a seven-judge Bench to examine whether the ‘creamy layer’ concept should be applied to Scheduled Castes (SCs) and Scheduled Tribes (STs) for promotions in service.
Why Reservation for SC/ST in the first place?
Reservation in politics, services and institutions is given to SCs particularly because they were denied the right to property, education and industries for nearly 2,000 years. Besides they were treated as untouchables.
- Discrimination continues even today in society. Given this, to provide them the safeguard against discrimination and compensate them to some extent for past exclusions, they have been given representation as per their population share.
Arguments against Creamy layer inside SC/ST
There exists a huge discrimination once a person belonging to SC/ST gets into service. There are about 12,000 cases lying with the SC/ST Commission, complaining about discrimination in service. Therefore, they need protection in promotion as well.
- The ‘creamy layer’ exclusion from within the OBCs is justified, because for them a lot of it is economic backwardness. But, for SC/ST despite being economically well off social discrimination does happen towards Dalits.
- Even after Dalits get entry into jobs or higher education, there are little micro-aggressions that they face. For example, in educational institutions students complain of harassment because they came in through reservation.
- One fact: In the U.S. the richer Blacks face greater discrimination because the Whites resent their entry into areas that are considered privileged for the Whites. So, in a way, there is some evidence to show that discrimination actually increases with a rise in economic position.
Jarnail Singh Case
The Supreme court felt that the test of backwardness should not be made applicable at all to SC/STs. But at the same time it advocated the creamy layer concept to be applied.
A committee needed and a review of Jarnail Singh verdict
Applying the economic criteria to exclude some of the relatively economically better-off SCs will not solve the problem of Discrimination.
- The Supreme Court can ask the government to set up a comprehensive committee to study the practice of untouchability and discrimination faced by SCs and STs.
Discrimination is in the form of stigma that comes on account of the untouchable status. And even though legally untouchability has been abolished, there is a lot of data that show that people still practise untouchability. Reservation is only a tiny remedial measure for that.
Question of Efficiency
There is a provision in Article 335 on how affirmative action should be subject to overall efficiency. A Division Bench recently rejected the idea that reservation will have an impact on efficiency.
Recently, a study came out looking at IAS officers’ performance indicators, and that study reached the conclusion that these officers perform better as they move up in the pecking order
Citizenship Amendment Bill (CAB)
Why in news?
The Citizenship (Amendment) Bill (CAB), passed in both Houses and assented by the President, promises to give the protection of citizenship to non-Muslims who fled to India to escape religious persecution in Afghanistan. Bangladesh and Pakistan (ABP).
The Bill seeks to grant Indian Citizenship to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have migrated to India after facing persecution on grounds of religion in Pakistan, Afghanistan and Bangladesh.
- In India, citizenship is regulated by the Citizenship Act, 1955. The Act specifies that citizenship may be acquired in India through five methods – by birth in India, by descent, through registration, by naturalisation (extended residence in India), and by incorporation of territory into India.
- However, illegal migrants cannot become Indian citizens. Under the Act, an illegal migrant is a foreigner who:
- enters the country without valid travel documents like a passport and visa, or enters with valid documents, but stays beyond the permitted time period.
- Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.
- In 2015 and 2016, the government exempted specified groups of illegal migrants from provisions of the 1946 and 1920 Acts. They were Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who reached India on or before December 31, 2014.
- This meant that these particular categories of illegal migrants would not be deported or jailed for being in India without valid documents.
- Citizenship on the basis of religion: The Bill amends the Citizenship Act, 1955, and for the first time, will grant citizenship on the basis of religion to non-Muslim communities from Afghanistan, Bangladesh and Pakistan, who entered India on or before December 31, 2014.
- Non – Muslim Communities Included: Hindu, Sikh, Buddhist, Jain, Parsi, and Christian. This implies that migrants, who identify themselves with any group or community other than those mentioned here, from the above mentioned countries won’t be eligible for citizenship.
- Exceptions: The provisions on citizenship for illegal migrants will not apply to two categories – states protected by the ‘Inner Line’, and areas covered under the Sixth Schedule of the Constitution.
- Inner Line Permit (ILP): This is a special permit that citizens from other parts of India require to enter a state protected by the ILP regime. Without an ILP granted by the state government, an Indian from another state cannot visit a state that is under the ILP regime.
- Sixth Schedule: The Sixth Schedule relates to special provisions in administration of certain Northeastern states (Assam, Mizoram, Meghalaya and Tripura). It provides special powers for Autonomous District Councils (ADCs) in these states.’
Citizenship by Naturalization
- Under the Citizenship Act, 1955, one of the requirements for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
- The amendment relaxes the second requirement from 11 years to 5 years as a specific condition for applicants belonging to the specified six religions, and the above mentioned three countries.
- Additional Ground for Cancelling Overseas Citizen of India (OCI) Registration i.e. violation of any law notified by the central government.
- However, the Bill does not provide any guidance on the nature of laws which the central government may notify. The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers.
Arguments Against the Bill
- The fundamental criticism of the Bill has been that it specifically targets Muslims. Critics argue that it is violative of Article 14 of the Constitution (which guarantees the right to equality) and the principle of secularism.
- India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
- Despite exemption granted to some regions in the Northeastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties in the states.
- It will be difficult for the government to differentiate between illegal migrants and those persecuted.
Arguments in Favour
- The government has clarified that Pakistan, Afghanistan and Bangladesh are Islamic republics where Muslims are in majority hence they cannot be treated as persecuted minorities. It has assured that the government will examine the application from any other community on a case to case basis.
- This Bill will come as a big boon to all those people who have been the victims of Partition and the subsequent conversion of the three countries into theocratic Islamic republics.
- Citing partition between India and Pakistan on religious lines in 1947, the government has argued that millions of citizens of undivided India belonging to various faiths were staying in Pakistan and Bangladesh from 1947.
- The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.
- Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.
- After Independence, not once but twice, India conceded that the minorities in its neighbourhood is its responsibility. First, immediately after Partition and again during the Indira-Mujib Pact in 1972 when India had agreed to absorb over 1.2 million refugees. It is a historical fact that on both occasions, it was only the Hindus, Sikhs, Buddhists and Christians who had come over to Indian side.
Who are Illegal migrants?
An illegal migrant is defined under Foreigners’ Act, 1946 and is a foreigner who: (i) enters the country without valid travel documents, like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
Illegal migrants may be imprisoned or deported under the Foreigners’ Act, 1946, and the Passport (Entry into India) Act, 1920 as these Acts empower the central government to regulate the entry, exit, and residence of foreigners within India.
Changes through the Bill:
The amendment seeks to remove people belonging to the six minority religious groups in neighbouring countries from consideration as illegal migrants.
However, to get the benefits of citizenship under the citizenship Act, these groups would also be required to be exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government.