In a recent judgement, the Karnataka High Court upheld the disqualification of five independent MLAs from the Assembly. These MLAs, who had previously served as Ministers in the Yeddyurappa government, were disqualified along with 11 others after they withdrew their support to the government. The disqualifications raise some important questions on the working of the anti-defection law. While the law was framed in 1985 with the specific intent of 'combating the evil of political defections', over the years several unanticipated consequences have come to the fore. The primary among these is the erosion of independence of the average legislator. The need for an anti-defection law was first felt in the late 1960s. Of the 16 States that went to polls in 1967, Congress lost majority in eight and failed to form the government in seven. Thus began the era of common minimum programmes and coalition governments. This was accompanied with another development - the phenomenon of large scale political migrations. Within a brief span of 4 years (1967-71), there were 142 defections in Parliament and 1969 defections in State Assemblies across the country. Thirty-two governments collapsed and 212 defectors were rewarded with ministerial positions. Haryana was the first State where a Congress ministry was toppled. The Bhagwat Dayal ministry was defeated in the Assembly when its nominee for speakership lost out to another candidate. Congress dissidents defected to form a new party called the Haryana Congress, entered into an alliance with the opposition and formed a new government under the Chief Ministership of Rao Birender Singh (also a Congress defector). Haryana thus became the first State to reward a defector with Chief Ministership. Another Haryana legislator, Gaya Lal, defected thrice within a fortnight. The now well know terms 'Aya Ram' and 'Gaya Ram' that are often used to describe political turncoats owe inspiration to him. It was to address this issue that the anti-defection law was passed in 1985. This law amended the Constitution and added the Tenth Schedule to the same. The Supreme Court, in Kihota Hollohon vs. Zachilhu (1992), while upholding the validity of the law held that decisions of disqualification shall be open to judicial review. It also made some observations on Section 2(1) (b) of the Tenth schedule. Section 2(1) (b) reads that a member shall be disqualified if he votes or abstains from voting contrary to any direction issued by the political party. The judgement highlighted the need to limit disqualifications to votes crucial to the existence of the government and to matters integral to the electoral programme of the party, so as not to 'unduly impinge' on the freedom of speech of members. This anti-defection law has regulated parliamentary behaviour for over 25 years now. Though it has the advantage of providing stability to governments and ensuring loyalty to party manifestos, it reduces the accountability of the government to Parliament and curbs dissent against party policies. In this context, Manish Tewari's private member bill merits mention: he suggests that anti-defection law be restricted to votes of confidence and money bills. Such a move will retain the objective of maintaining the stability of the government while allowing MPs to vote freely (subject to the discipline of the party whip) on other issues. This brings us to the question - Is the anti-defection law indispensable? Is defection peculiar to India? If not, how do other countries handle similar situations? It is interesting to note that many advanced democracies face similar problems but haven't enacted any such laws to regulate legislators. Prominent cases in UK politics include the defection of Ramsay Macdonald, the first Labour Prime Minister, in 1931. He defected from his party following disagreements on policy responses to the economic crisis. Neither Macdonald nor any of his three cabinet colleagues who defected with him resigned their seats in the House of Commons to seek a fresh mandate. Australian Parliament too has had its share of defections. Legislators have often shifted loyalties and governments have been formed and toppled in quick succession. In the US too, Congressmen often vote against the party programme on important issues without actually defecting from the party. India might have its peculiar circumstances that merit different policies. But, the very fact that some other democracies can function without such a law should get us thinking. Sources/ Notes: [1] PRS Conference note: The Anti-Defection Law – Intent and Impact [2] Column by CV Madhukar (Director, PRS) titled 'Post-independents' in the Indian Express
Explainer: The Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019
The Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019 was passed by Parliament today. It replaces an Ordinance that was promulgated in February 2019. The Bill brings about two major changes in reservation of teaching posts in central educational institutions. Firstly, it establishes that for the purpose of reservation, a university/college would be considered as one single unit. This means that posts of the same level across all departments (such as assistant professor) in a university would be grouped together when calculating the total number of reserved seats. Secondly, it extends reservations beyond Scheduled Castes (SC) and Scheduled Tribes (ST), to include socially and educationally backward classes (OBC) and economically weaker sections (EWS).
In this post, we look at how the Bill will impact the reservation of teaching posts in central educational institutions.
How has teachers’ reservation been implemented in the past?
In 2006, the University Grants Commission (UGC) issued guidelines for teacher reservations in central educational institutions.[1] These guidelines required central educational institutions to consider a university as one unit for the purpose of reservation. It stated that reservations would be calculated using a roster system specified by the Ministry of Personnel, Public Grievances, and Pension.[2]
However, the UGC Guidelines (2006) were challenged in the Allahabad High Court in 2017. The question before the Court was whether a university should be taken as a unit when applying the roster.[3] The Court found that individual departments should be taken as a unit for the purpose of reservation, instead of universities. It held that taking a university as a unit could result in some departments having only reserved candidates and others having only unreserved candidates. Following the judgment, departments were treated as a single unit for reservation at central educational institutions.
In March 2019, the Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019 was promulgated, and passed as a Bill in July 2019. The Bill overturns the Allahabad High Court judgment and reverts to the system where a university is regarded as one unit for the purpose of reservation.
Over the years, there has been deliberation on whether the university or department should be taken as a unit for reservation of teaching posts. This has to do with the manner in which the roster system [4]specified by the Ministry of Personnel, Public Grievances, and Pension is applied in both situations.
What was the roster system specified by the Ministry of Personnel, Public Grievances, and Pension?
The roster system calculates reservation based on cadre strength. A cadre includes all posts available to be filled within a unit, i.e. either department or university. For instance, all associate professor positions within a university or within a department would be considered a cadre.
At present, the roster system is applied in two ways, i.e., the 13-point system or the 200-point system. For initial recruitment in both systems, all posts in a cadre are numbered and allocated. This means that in a cadre with 18 posts, each post will be assigned a number from 1 to 18 and allocated to a particular category, i.e., either SC, ST, OBC, EWS or unreserved. Therefore, hiring of teachers for all posts takes place on the basis of this list.
However, there are two fundamental differences between the 200 point and 13 point systems.
When a university is taken as the unit for reservation, the 200-point system is used, as there tend to be more than 13 posts in a university. However, when a department is taken as a unit, the 13-point system or the 200-point system may be used, depending on the size of the department.
How are the number of reserved seats calculated in the roster system?
For both the systems, the number of seats reserved for SC, ST, OBC, and EWS is determined by multiplying the cadre strength with the percentage of reservation prescribed by the Constitution. The percentage of reserved seats for each category is as follows: (i) 7.5% for ST, (ii) 15% for SC, (iii) 27% for OBC, and (iv) 10% for EWS.
If the number of posts needed to be filled is 200, and the percentage of reservation for ST is 7.5%, we would use the following formula to calculate the number of reserved posts for that class:
Number of posts needed to be filled x percentage of reservation/100
= 200 x 7.5/100
= 15
Thus, the number of seats reserved for ST in a cadre with the strength of 200 posts is 15. Using the same formula, the number of seats reserved for SC is 30, OBC is 54, and EWS is 20.
How are these reserved seats distributed across posts?
To determine the position of each reserved seat in the roster systems, 100 is divided by the percentage of the reservation for each category. For instance, the OBC quota is 27%. Therefore, 100/27 = 3.7, that is, approximately every 4th post in the cadre list. Likewise, SC is approximately every 7th post, ST is approximately every 14th post, and EWS will be approximately every 10th post.
What is the difference in the application of the roster between the department and university systems?
To demonstrate the difference between the department and university systems, a hypothetical example of a university with 200 posts for associate professors, and nine departments with varying number of posts is provided below.
When the university is taken as a unit
|
If the university is taken as the unit for reservation, then the total number of posts for the reserved categories would be 119 (i.e., 30 for SC, 15 for ST, 54 for OBC, and 20 for EWS), whereas the number of unreserved (UR) seats would be 81. This is mentioned in Table 1. The method of calculation of these numbers is based on the roster system prescribed by the Ministry of Personnel, Public Grievances, and Pension. |
Table 1: No. of posts reserved when university is taken as a unit
|
When departments are taken as separate units
|
If different departments of a university are taken as separate units for reservation, then the total number of posts for the reserved categories would be 101 (i.e., 25 for SC, 9 for ST, 49 for OBC, and 18 for EWS), whereas the number of unreserved (UR) seats would be 99. This is mentioned in Table 2. The method of calculation of these numbers is based on the roster system prescribed by the Explainer: The Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019 The Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019 was passed by Parliament today. It replaces an Ordinance that was promulgated in February 2019. The Bill brings about two major changes in reservation of teaching posts in central educational institutions. Firstly, it establishes that for the purpose of reservation, a university/college would be considered as one single unit. This means that posts of the same level across all departments (such as assistant professor) in a university would be grouped together when calculating the total number of reserved seats. Secondly, it extends reservations beyond Scheduled Castes (SC) and Scheduled Tribes (ST), to include socially and educationally backward classes (OBC) and economically weaker sections (EWS). In this post, we look at how the Bill will impact the reservation of teaching posts in central educational institutions. How has teachers’ reservation been implemented in the past? In 2006, the University Grants Commission (UGC) issued guidelines for teacher reservations in central educational institutions.[1] These guidelines required central educational institutions to consider a university as one unit for the purpose of reservation. It stated that reservations would be calculated using a roster system specified by the Ministry of Personnel, Public Grievances, and Pension.[2] However, the UGC Guidelines (2006) were challenged in the Allahabad High Court in 2017. The question before the Court was whether a university should be taken as a unit when applying the roster.[3] The Court found that individual departments should be taken as a unit for the purpose of reservation, instead of universities. It held that taking a university as a unit could result in some departments having only reserved candidates and others having only unreserved candidates. Following the judgment, departments were treated as a single unit for reservation at central educational institutions. In March 2019, the Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019 was promulgated, and passed as a Bill in July 2019. The Bill overturns the Allahabad High Court judgment and reverts to the system where a university is regarded as one unit for the purpose of reservation. Over the years, there has been deliberation on whether the university or department should be taken as a unit for reservation of teaching posts. This has to do with the manner in which the roster system [4]specified by the Ministry of Personnel, Public Grievances, and Pension is applied in both situations. What was the roster system specified by the Ministry of Personnel, Public Grievances, and Pension? The roster system calculates reservation based on cadre strength. A cadre includes all posts available to be filled within a unit, i.e. either department or university. For instance, all associate professor positions within a university or within a department would be considered a cadre. At present, the roster system is applied in two ways, i.e., the 13-point system or the 200-point system. For initial recruitment in both systems, all posts in a cadre are numbered and allocated. This means that in a cadre with 18 posts, each post will be assigned a number from 1 to 18 and allocated to a particular category, i.e., either SC, ST, OBC, EWS or unreserved. Therefore, hiring of teachers for all posts takes place on the basis of this list. However, there are two fundamental differences between the 200 point and 13 point systems.
When a university is taken as the unit for reservation, the 200-point system is used, as there tend to be more than 13 posts in a university. However, when a department is taken as a unit, the 13-point system or the 200-point system may be used, depending on the size of the department. How are the number of reserved seats calculated in the roster system? For both the systems, the number of seats reserved for SC, ST, OBC, and EWS is determined by multiplying the cadre strength with the percentage of reservation prescribed by the Constitution. The percentage of reserved seats for each category is as follows: (i) 7.5% for ST, (ii) 15% for SC, (iii) 27% for OBC, and (iv) 10% for EWS. If the number of posts needed to be filled is 200, and the percentage of reservation for ST is 7.5%, we would use the following formula to calculate the number of reserved posts for that class: Number of posts needed to be filled x percentage of reservation/100 = 200 x 7.5/100 = 15 Thus, the number of seats reserved for ST in a cadre with the strength of 200 posts is 15. Using the same formula, the number of seats reserved for SC is 30, OBC is 54, and EWS is 20. How are these reserved seats distributed across posts? To determine the position of each reserved seat in the roster systems, 100 is divided by the percentage of the reservation for each category. For instance, the OBC quota is 27%. Therefore, 100/27 = 3.7, that is, approximately every 4th post in the cadre list. Likewise, SC is approximately every 7th post, ST is approximately every 14th post, and EWS will be approximately every 10th post. What is the difference in the application of the roster between the department and university systems? To demonstrate the difference between the department and university systems, a hypothetical example of a university with 200 posts for associate professors, and nine departments with varying number of posts is provided below. When the university is taken as a unit
When departments are taken as separate units
As can be seen in the above example, if departments are taken as separate units, there is a decrease in the number of reserved posts. The number of reserved posts decreased by five for SC, six for ST, five for OBC, and two for EWS. This example is corroborated by the special leave petition filed by the Ministry of Human Resource Development in the Supreme Court against the 2017 order of Allahabad High Court. It demonstrates that the number of reserved seats in Banaras Hindu University (BHU) decreased when departments were taken as separate units. The number of reserved posts decreased by 170 for SC, 114 for ST, and 90 for OBC.[5] EWS was not included in the reservation system when the BHU numbers were calculated. Thus, the trade off between the two systems is as follows. On the one hand, when the university is taken as a unit there is a possibility that some departments would only have reserved candidates and others would have only unreserved candidates. However, when a department is taken as a unit, there is a decrease in the total number of reserved posts within the university.
[1] Circular No. F. 1-5/2006(SCT), University Grants Commission, 2006. [2] O.M. No. 36012/2/96-Esst. (Res), ‘Reservation Roster- Post based- Implementation of the Supreme Court Judgement in the case of R.K. Sabharwal Vs. State of Punjab, Department of Personnel and Training, Ministry of Personnel, Public Grievances, and Pension, July 1997, http://documents.doptcirculars.nic.in/D2/D02adm/36012_2_96_Estt(Res).pdf. [3] Vivekanand Tiwari v. Union of India, Writ petition no. 43260, Allahabad High Court, April 2017. [4] O.M. No.36039/1/2019-Estt (Res), ‘Reservation for Economically Weaker Sections (EWSs) in direct recruitment in civil posts and services in the Government of India’, Department of Personnel and Training, Ministry of Personnel, Public Grievances, and Pension, https://dopt.gov.in/sites/default/files/ewsf28fT.PDF. [5] Special Leave Petition filed in Supreme Court by Ministry of Human Resource Development, January 2019, as reported in Indian Express, https://indianexpress.com/article/explained/simply-put-the-unit-in-teachers-quota-5554261/. Ministry of Personnel, Public Grievances, and Pension. |
Table 2: No. of posts reserved when department is taken as the unit
Note: Number of posts in each department are hypothetical. |
As can be seen in the above example, if departments are taken as separate units, there is a decrease in the number of reserved posts. The number of reserved posts decreased by five for SC, six for ST, five for OBC, and two for EWS. This example is corroborated by the special leave petition filed by the Ministry of Human Resource Development in the Supreme Court against the 2017 order of Allahabad High Court. It demonstrates that the number of reserved seats in Banaras Hindu University (BHU) decreased when departments were taken as separate units. The number of reserved posts decreased by 170 for SC, 114 for ST, and 90 for OBC.[5] EWS was not included in the reservation system when the BHU numbers were calculated.
Thus, the trade off between the two systems is as follows. On the one hand, when the university is taken as a unit there is a possibility that some departments would only have reserved candidates and others would have only unreserved candidates. However, when a department is taken as a unit, there is a decrease in the total number of reserved posts within the university.
[1] Circular No. F. 1-5/2006(SCT), University Grants Commission, 2006.
[2] O.M. No. 36012/2/96-Esst. (Res), ‘Reservation Roster- Post based- Implementation of the Supreme Court Judgement in the case of R.K. Sabharwal Vs. State of Punjab, Department of Personnel and Training, Ministry of Personnel, Public Grievances, and Pension, July 1997, http://documents.doptcirculars.nic.in/D2/D02adm/36012_2_96_Estt(Res).pdf.
[3] Vivekanand Tiwari v. Union of India, Writ petition no. 43260, Allahabad High Court, April 2017.
[4] O.M. No.36039/1/2019-Estt (Res), ‘Reservation for Economically Weaker Sections (EWSs) in direct recruitment in civil posts and services in the Government of India’, Department of Personnel and Training, Ministry of Personnel, Public Grievances, and Pension, https://dopt.gov.in/sites/default/files/ewsf28fT.PDF.
[5] Special Leave Petition filed in Supreme Court by Ministry of Human Resource Development, January 2019, as reported in Indian Express, https://indianexpress.com/article/explained/simply-put-the-unit-in-teachers-quota-5554261/.
