1. SC quashes a year’s suspension of 12 Maharashtra BJP MLAs
‘Illegal to suspend beyond a session; governments can manipulate numbers’
The Supreme Court on Friday revoked the one-year suspension of 12 MLAs from the Maharashtra Assembly, calling it an “irrational” act that would impact the democratic set-up, leave constituencies unrepresented and help governments on a “thin majority” manipulate numbers.
The BJP legislators were suspended for a year for “grossly disorderly conduct” in the House during the monsoon session in 2021.
A Bench of Justices A.M. Khanwilkar and C.T. Ravikumar quashed the resolution of July 5 last year as “unconstitutional” and traversing beyond the powers of the Assembly.
The court said it was illegal to suspend a sitting legislator beyond the ongoing session.
“A suspension beyond the remainder period of the ongoing session would not only be grossly irrational measure, but also violative of the basic democratic values owing to unessential deprivation of the member concerned, and more importantly, the constituency would remain unrepresented in the Assembly,” Justice Khanwilkar observed.
“It would also impact the democratic set-up as a whole by permitting the thin majority government [coalition government] of the day to manipulate the numbers of the Opposition party in the House in an undemocratic manner,” he added.
What was the plea before the Supreme Court?
On July 5, 2021, soon after the Assembly met for its two-day monsoon session, there was commotion as Leader of Opposition Devendra Fadnavis (BJP) objected to an attempt by state minister Chhagan Bhujbal (NCP) to table a resolution demanding that the Centre release data on Other Backward Classes (OBCs), so that seats could be reserved for them in local bodies in Maharashtra. Several BJP MLAs entered the well in protest, snatched the mace, and uprooted mics. Shiv Sena MLA Bhaskar Jadhav, who was in the chair, adjourned the House for 10 minutes, following which some BJP MLAs allegedly entered his chamber and threatened, abused, and misbehaved with him.
The Maharashtra House has not had a Speaker since Nana Patole of the Congress resigned in February 2021, and Jadhav was one of four presiding officers named by Acting Speaker Narhari Zirwal the previous day. The data on the population of OBCs is a political hot button, and the Centre has told the Supreme Court that data on OBCs collected during the Socio-Economic Caste Census (SECC) of 2011 is erroneous and unusable.
Maharashtra Parliamentary Affairs Minister Anil Parab subsequently moved a resolution to suspend 12 BJP MLAs — Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia — for a year.
The MLAs filed a writ petition in the Supreme Court last year against the Maharashtra Legislative Assembly and the State of Maharashtra and asked for the suspension to be quashed.
What had both sides argued?
On behalf of the 12 BJP MLAs, it was submitted that their suspension is “grossly arbitrary and disproportionate”. The challenge relied mainly on grounds of denial of the principles of natural justice, and of violation of laid-down procedure. They said that they were not given an opportunity to present their case and that the suspension violated their fundamental right to equality before the law under Article 14 of the Constitution. They also submitted that they were not given access to video of the proceedings of the House, and it was not clear how they had been identified in the large crowd that had gathered in the chamber.
The MLAs have also contended that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker, and it cannot be put to vote in a resolution as was done in this case.
Rule 53 states that the “Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly”. The member must “absent himself during the remainder of the day’s meeting”.
The Maharashtra Legislative Assembly and the state, who were named as respondents in the case, had submitted that the action was taken due to “undisciplined and unbecoming behaviour” of the MLAs. It was argued that that House had acted within its legislative competence, and that under Article 212, courts do not have jurisdiction to inquire into the proceedings of the legislature. Article 212 (1) states that “the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure”.
The state had also said that a seat does not automatically become vacant if the member does not attend the House for 60 days but it becomes vacant only if declared so by the House. It was submitted that the House is not obligated to declare such a seat vacant.
What did the court say about members being suspended beyond an ongoing session?
The court agreed with the MLAs’ contention that the suspension has to follow the procedure laid down in Rule 53. It said that the suspension of a member must be preferred as a short term or a temporary, disciplinary measure for restoring order in the Assembly. Anything in excess of that would be irrational suspension, the court said. It said that Rule 53 only provides for the withdrawal of a member for the remainder of the day or in case of repeat misconduct in the same session, for the remainder of the session.
The court said that as per this rule, withdrawal of a member can only be done in case of the member’s conduct being “grossly disorderly”. It relied on definitions of the two words and said that the conduct has to be considered in a graded objective manner. It is not a punishment like expulsion but more a direction to ensure that the business of the House can be carried on smoothly, without any disruption. It termed the one-year suspension worse than expulsion or disqualification or resignation as far as the rights of the constituency to be represented in the House are concerned.
It also said that suspension beyond the ongoing session is violative of basic democratic values as it would mean the constituency the member represents in the House would remain unrepresented. It said that it would also impact the democratic setup. It said that a thin majority coalition government could use such suspensions to manipulate the number of Opposition party members and that Opposition will not be able to effectively participate in discussions/debates in the House fearing suspension of its members for a longer period.
It also considered whether the legislature had complete immunity from judicial review in matters of irregularity of procedure. It ruled that procedures are open to judicial review on the touchstone of being unconstitutional, grossly illegal, irrational or arbitrary.
Can members be suspended beyond the remainder of the session?
The bench referred to Article 190 (4) of the Constitution, which says, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”
Under Section 151 (A) of The Representation of the People Act, 1951, “a bye-election for filling any vacancy… [in the House] shall be held within a period of six months from the date of the occurrence of the vacancy”. This means that barring exceptions specified under this section, no constituency can remain without a representative for more than six months. It said that anything in excess of that would be irrational suspension entailing deprivation of the constituency from being represented in the House.
The court said that exceeding the stated timeline as per the Rules for withdrawal of members is a substantive matter. It said that it raises the question as to what purpose does it serve to withdraw a member from the House for successive sessions within the one-year period. It said further that if the conduct of a member is gross, warranting his removal from the Assembly for a longer period, the House can invoke its inherent power of expulsion.
Like Rule 53 in the Maharashtra Legislative Assembly, are there similar rules for Parliament and other state assemblies?
Rules 373, 374, and 374A of the Rules of Procedure and Conduct of Business in Lok Sabha provide for the withdrawal of a member whose conduct is “grossly disorderly”, and suspension of one who abuses the rules of the House or willfully obstructs its business.
The maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less”.
The maximum suspension for Rajya Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspensions of members have not continued beyond the session.
Similar rules also are in place for state legislative assemblies and councils which prescribe a maximum suspension not exceeding the remainder of the session.
2. States must decide on SC/ST quota in promotions: court
Bench refuses to set norm on poor representation
The Supreme Court on Friday refused to lay down the “yardstick” for determining the inadequacy of representation for granting reservation in promotions for Scheduled Caste and Scheduled Tribe candidates in government jobs. It held ‘cadre’, and not class or group or the entire service, as the unit for the purpose of collection of quantifiable data for giving promotion quotas.
The court stuck firm by the decisions of its Constitution Benches in the Jarnail Singh and M. Nagaraj cases that the question of adequate representation of SC/ST communities ought to be left to the respective States to determine.
“Determination of inadequate representation of SCs and STs in services under a State is left to the discretion of the State, as it depends upon myriad factors which this Court cannot envisage… Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State governments,” a Bench of Justices L. Nageswara Rao, Sanjiv Khanna and B.R. Gavai noted.
“In addition, the prevailing local conditions, which may require to be factored in, might not be uniform… In the light of Jarnail Singh and Nagaraj, we cannot lay down any yardstick for determining the inadequacy of representation,” the Bench said.
In respect of the unit of collection of quantifiable data, the court held that the State is “obligated to collect quantifiable data on the inadequacy of representation of Scheduled Castes and Scheduled Tribes” for reservation in promotions in public employment.
The court underscored that the “collection of information on inadequacy of representation of SC/ST communities cannot be with reference to the entire service or class/group, but it should be relatable to the grade/category of posts to which the promotion is sought”.
Explaining why ‘cadre’ should be the unit for the purpose of collection of quantifiable data in relation to promotional posts, the court said otherwise the entire exercise of reservation in promotions would be rendered meaningless if data pertaining to the representation of SCs and STs is done with reference to the entire service. The term ‘cadre’ means the strength of a service or part of a service sanctioned as a separate unit. It is the choice of a State to constitute cadres. The entire service cannot be considered to be a cadre for the purpose of promotion from one post to a higher post in a different grade. Promotion is made from one grade to the next higher grade, in relation to which cadres are constituted
Current Scenario of Reservations in Promotions in for SC/ST:
- The 2006 verdict on Nagaraj vs Union of India brought in a creamy layer filter for promotions for SC/ST employees.
- Also, the judgement ruled that the state had to collect ‘quantifiable data on backwardness’ of the SC/ST class if it wished to provide reservation in promotions.
- The judgement finally held that when it comes to promotion of SC/ST employees, the court held that the creamy layer concept does Apply.
- So now, only in direct recruitment of the SC/STs, the creamy layer concept Does Not Apply.
- Constitutional basis- Article 335:
- Article 335 recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level-playing field.
- Need: Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.
- Significance: The proviso is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states.
- It also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.
- Indra Sawhney vs Union of India case (1992):
- In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion.
- It added that the principle would operate only prospectively and not affect promotions already made and that reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment.
- On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.
- M Nagaraj case (2006):
- The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted in pursuance of those amendments was challenged before the Supreme Court in the Nagaraj case.
- Upholding the validity of Article 16 (4A), the court then said that it is an enabling provision.
- “The State is not bound to make reservation for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets:
- 1. The backwardness of the class.
- 2. The inadequacy of the representation of that class in public employment.
- 3. The general efficiency of service as mandated by Article 335 would not be affected.
- This is to provide for reservations in promotions for Scheduled Castes and Scheduled Tribes with consequential seniority.
- “Consequential seniority” refers to promotions made purely on reservation basis despite another person waiting for promotion being actually senior to him/her.
- Jarnail Singh case (2018):
- In2018, a five-judge Bench in the Jarnail Singh case unanimously agreed with a 2006 judgment of another five-judge Bench in the M. Nagaraj case, which had upheld the application of the creamy layer principle in promotions.
- Also the judgment has modified a part of the Nagaraj case verdict which required the States to show quantifiable data to prove the “backwardness” of a Scheduled Caste/Scheduled Tribe in order to provide quota in promotion in public employment.
- The whole object of reservation is to see that the backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were..
What are the Current Concerns?
1. Against Precedence
- It has been clearly stated in Indra Sawhney (1992) case, that any discussion on creamy layer “has no relevance” in the context of SC/STs.
2. Against equal Representation
- Going by the creamy layer ceiling of Rs 8 lakh per annum, even “Group D” functionaries will come under the definition of creamy layer.
- But notably, the SC/STs lack representation mainly at the Group A level which do not have direct recruitment provisions.
- Promotions are the way through which members of SC/ST communities make it to this level.
- So the consequence of the judgement (applying creamy layer in promotions) will be that promotions will stop even at the Group D and Group C levels.
- The SC/STs are given job reservations not because they are poor but because they are excluded.
- The Constitution made the Scheduled Castes and Scheduled Tribes as a separate category of subjects to protect them from caste aggression.
- It was also to help them gain the strength they need to withstand it and to grow autonomously.
4. Article 335
- The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure.
- However, the creamy layer among SC/ST employees helps fulfil the second part of Article 335 that requires maintaining the “efficiency of administration”.
- So, the recent judgement largely undoes the affirmative action of ensuring equality of opportunity.
5. Right to opt out
- The court also failed to address this, as at present, an SC/ST candidate does not have the right to reject reservations.
- It is also a punishable offence to withhold one’s caste status while seeking government employment.
- But allowing SC/ST candidates to compete in the general category would help thousands to leave the space for the less privileged among them.
- Also, by competing as non-reserved candidates, the well-qualified SC/ST group would corner a substantial number of open posts (General Category).So theoretically, SC/STs would end up garnering more posts than at present.
3. 6% of MSMEs owned by SC entrepreneurs
Maharashtra, Tamil Nadu and Rajasthan top list
Maharashtra tops India’s list in the number of micro, small and medium enterprises (MSME) owned by entrepreneurs from the Scheduled Castes with as many as 96,805 enterprises.
Generally, the proportion of enterprises owned by Scheduled Caste entrepreneurs in the overall national tally of MSMEs is 6%.
Tamil Nadu with 42,997 enterprises and Rajasthan with 38,517 units occupy the second and third slots, according to the data furnished by the Office of the Development Commissioner in the Union Ministry of MSME exclusively to The Hindu regarding the number of SC-owned enterprises covered under the Udyam system of registration.
The fourth, fifth and sixth slots belong to Uttar Pradesh (36,913 units), Karnataka (28,803 enterprises) and Punjab (24,503 units) respectively. As on January 23, 2022, the number of SC-owned enterprises at the all-India level was 4,53,972, of which micro enterprises accounted for 4,50,835, small 3,004 and medium 133.
The Udyam system of registration, which came into force on July 1, 2020, is a pre-requisite for any MSME (regardless of the social category of ownership) to avail itself of concessions or benefits from the Central and State governments and the last date for migration to Udyam has been extended up to March 31, 2022, said K.K. Sharma, General Manager, National SC/ST Hub.
Mr. Sharma, however, clarified that this stipulation is only in respect of MSMEs, which want to get covered under schemes of the governments including priority sector lending of banks. Otherwise, the enterprises, which had registered themselves under the previous system such as Udyog Aadhar Memorandum (UAM), can carry on their business.
A perusal of the data on registration of enterprises under the two systems — Udyam (July 1, 2020 to January 23, 2022) and UAM (September 1, 2015 to June 30, 2020) — revealed that under the latter system, Bihar, Uttar Pradesh and Madhya Pradesh were in the first, third and fourth places with 1,46,244 enterprises; 1,33,552 and 1,08,715 enterprises respectively whereas under Udyam, their numbers stood at 23,195, 36,913 and 19,875 respectively.
Asked about the wide variation in the numbers of registered units with regard to the northern States, Mr. Sharma and Milind Kamble, founder chairman of the Dalit Indian Chamber of Commerce & Industry (DICCI), explained that the Udyam system of registration is more streamlined than the previous Udyog Aadhaar Memorandum.
There is no room for duplication under the new system, which has a provision for integration with the GSTN (Goods and Services Tax Network).
Micro, Small and Medium Enterprises
Micro, Small and Medium Enterprises Development (MSMED) Act, 2006 which was notified on October 2, 2006, deals with the definition of MSMEs. The MSMED Act, 2006 defines the Micro, Small and Medium Enterprises based on
- the investment in plant and machinery for those engaged in manufacturing or production, processing or preservation of goods and
- the investment in equipment for enterprises engaged in providing or rendering of services.
New Defenition of MSMEs
As per the new definition of MSMEs announced in May 2020, the investment limit has been revised upwards and an additional criterion of turnover introduced.
The distinction between manufacturing and services has been done away with.
Now, a micro firm is one with investment up to Rs 1 crore and turnover less than Rs 5 crore, the small firm has investment up to Rs 10 crore and turnover up to Rs 50 crore and medium-firm will be one with an investment of up to Rs 20 crore and turnover under Rs 100 crore.
Benefits provided to MSMEs
- Loans under the priority sector lending scheme.
- 25% share in procurement by government and government-owned companies.
- Promoters are allowed to bid for stressed assets under the insolvency law (unlike big companies).
- Various government schemes and funds.
4. Study raises concerns on NeoCov
Wuhan researchers say single molecular change in virus can infect humans
A single molecular change in the lab enabled a coronavirus called NeoCov to “efficiently infect” human cells using the same pathway that the SARS-CoV-2 uses to infect human cells, researchers from Wuhan University, Wuhan, China said in a report that is yet to be peer-reviewed.
NeoCov has so far only been seen in bats and no instances have been reported in people. With NeoCov closely related to the Middle Eastern Respiratory Syndrome (MERS) coronaviruses — traditionally more lethal but less transmissible than SARS-CoV-2 — the study has raised concern that this too may lethally proliferate in people.
In their study, which is available on the online pre-print server bioRxiv.org, the scientists set out to find out the ways in which NeoCov, a coronavirus known to be 85% similar to MERS coronaviruses, infected animal cells.
SARS-CoV-2, for instance, spreads the way it does because it has figured out a way to use the enzyme called human angiotensin converter 2 (hACE2) to infect cells. The scientists reported that they have, for the first time, shown NeoCov too uses bat ACE2. However this ACE2 is specific to the sub-species of bat and when the scientists checked if the NeoCov could use hACE2, it turned out to be a “less favourable” mode of entry.
A single molecular barrier, close to where the virus bound to cells, “restricted” the human ACE2 from aiding a NeoCov infection. However when a mutation was artificially introduced, it made the NeoCov 15-30 times more efficient at infecting human ACE2. Moreover, the study said, the infection could not be suppressed by antibodies targeting SARS-CoV-2 or MERS-CoV.
Vinod Scaria, principal scientist, CSIR-Institute of Genomics and Integrative Biology, told The Hindu that an artificially created mutation in the lab didn’t imply the same could easily occur in natural settings.
Rajeev Jayadevan, physician and former president of the Indian Medical Association, in a Twitter thread said that NeoCov was discovered in 2013-14 and “nothing has happened”. Despite similarities, the ACE2 receptors of bats and people were different and the odds of a sudden jump were low.
5. Centre appoints Anantha Nageswaran as CEA
Economist joins 4 days before Budget
The Centre on Friday appointed V. Anantha Nageswaran as the Chief Economic Advisor, three days before the start of the Budget session of Parliament.
Dr. Nageswaran assumed charge of the position, which had been vacant since early December after his predecessor Krishnamurthy Subramanian returned to academia at the end of a three-year stint. The CEA is usually responsible for drafting the Economic Survey presented on the eve of the Budget.
The new CEA, who was earlier a part-time member of the Economic Advisory Council to the Prime Minister, holds a Post-Graduate Diploma in Management from the Indian Institute of Management, Ahmedabad and a doctoral degree in Finance from the University of Massachusetts for his work on the empirical behaviour of exchange rates.
Office of the Economic Adviser
Office of the Economic Adviser (OEA) is an attached office of the Department for Promotion of Industry and Internal Trade, Ministry of Commerce & Industry.
The main functions of the Office of Economic Adviser include, inter alia the following :
- Economic policy inputs on industrial development.
- Rendering advice relating to formulation of Industrial Policy, Foreign Trade Policy with respect to industrial sector in general with thrust on manufacturing, issues relating to bilateral and multilateral trade, as well as taxes and duties related to industry, including but not restricted to safeguard and anti-dumping duties.
- Analysis of trends of industrial production and growth.
- Examination of multilateral and bilateral issues and processing Policy Notes with economic implications referred to the Office.
- Compiling and releasing monthly Wholesale Price Indices
- Compiling and releasing monthly Index of Core Industries Production
- Developing other Indices on experimental basis, e.g. select business service price indices
- Supervising as a ‘source agency’, compilation of monthly production statistics for identified industrial items, their validation, and onward transmission for computation of the monthly Index of Industrial Production (IIP) by Central Statistics Office.
- Monthly Statistical compilation of macro indicators (secondary information).