The News Editorial Analysis 21st Jan 2022

SC upholds OBC quota in NEET

Open exam only ensures formal equality, does not end ingrained inequalities’The Supreme Court on Thursday upheld the constitutional validity of reservation for Other Backward Classes (OBC) candidates in the All India Quota seats for the National Eligibility-cum-Entrance Test (NEET) for undergraduate and postgraduate medical and dental courses, noting that “reservation is not at odds with merit” in open competitive examinations.“If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers. This is the only manner in which merit can be a democratising force that equalises inherited disadvantages and privileges. Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements,” a Bench of Justices D.Y. Chandrachud and A.S. Bopanna observed in a 106-page judgment.The court said an open competitive exam only ensures formal equality and does not end widespread ingrained inequalities in the availability of, and access to, educational facilities to certain classes of people, including the OBC.

Multiple privileges

The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family, Justice Chandrachud said. The cultural capital ensures that a child from the forward classes is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family‘s standing. This works to the disadvantage of individuals from social backward classes who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination.Thus, merit is not solely of one’s own making.“The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one’s advancement. Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making,” Justice Chandrachud explained.

‘Not the best gauge’

The court said the “idea of merit” based on scores in an exam requires “deeper scrutiny”.

“While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit. If a high-scoring candidate does not use their talent to perform good actions, it would be difficult to call them meritorious merely because they scored high marks,” Justice Chandrachudreasoned.The fortitude and resilience required to uplift oneself from conditions of deprivation are equally reflective of individual calibre and merit, the court said.The apex court held it was the Centre’s prerogative to provide reservation in All India Quota (AIQ) seats. Granting reservation in the AIQ seats was a policy decision of the government, though subject to the contours of judicial review. similar to every reservation policy; .Justice Chandrachud said the power of the government to provide reservations under Article 15 (4) and (5) of the Constitution is not an “exception” to Article 15 (1), which enshrines the mandate that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.The court held that the power of the government to craft reservation for the OBC amplified the principle of “substantive equality” manifested through Article 15 (1).

Parliament support

The Parliament had backed the cause by enacting the Central Educational Institutions (Reservation in Admission) Act 2006 to enable 15% reservation for Scheduled Castes, 7.5% for the Scheduled Tribes, and 27% for the OBC category. The Constitution Bench in Ashoka Kumar Thakur v. Union of India had also upheld the constitutional validity of 27% reservation for the OBC category provided under the 2006 Act.“Though the Act of 2006 would not be applicable to the seats earmarked for AIQ in State-run institutions since it would not fall within the definition of a Central educational institution under the Act, the Union, in view of Article 15(5), has the power to provide reservations for OBCs in the AIQ seats. It is not tenable for the States to provide reservation in the AIQ seats since these seats have been ‘surrendered‘ to the Centre,” Justice Chandrachudnoted.The judgment was based on petitions filed by doctors in August 2021 against a July 29, 2021, notification issued by the Directorate General of Health Services of the Ministry of Health implementing 27% and 10% reservation for OBC and Economically Weaker Sections (EWS), respectively, while filling up 15% undergraduate and 50% postgraduate AIQ seats under NEET.

Vaccines preventing many deaths: govt.

5 States top contributors to third wave’India is seeing relatively low mortality in the ongoing COVID-19 surge because of enhanced vaccination cover, said V.K. Paul, Member (Health), NITI Aayog, adding that 6.5 crore persons who were due for their second dose of the COVID-19 vaccine had not taken it so far.“They should take it to ensure that they don’t prove to be the weak link in the fight against the pandemic,” Dr. Paul said at the weekly Health Ministry press conference on Thursday.

For the first time, the Health Ministry termed the present surge “the third wave” of the pandemic, adding that Maharashtra, Karnataka, Tamil Nadu, Kerala, Uttar Pradesh and Delhi are among the top contributors to the COVID-19 surge. In the week ending on January 19, 515 districts reported a weekly case positivity of more than 5%.At the meet, Health Secretary Rajesh Bhushan explained that on April 30, 2021 there were 3,86,452 new cases, 3,059 deaths and 31,70,228 active cases. The proportion of fully vaccinated people then was 2%.

On January 20, 2022 there are 3,17,532 new cases, 380 deaths and 19,24,051 active cases, while the proportion of fully vaccinated people stands at 72%. “This clearly shows that vaccines have a huge protective cover against deaths,’’ he said.Speaking of the sharp rise in the use of home testing kits, Indian Council of Medical Research (ICMR) head Balram Bhargava, who also participated in the briefing, said that two lakh home tests had been used in last 20 days as against 3,000 in the whole of 2021. He added that India had adequate amount of testing material.

Asked about the percentage of children affected by the current third surge, Mr. Bhushan said that in 2020, 10% of the total cases and 0.96% of the deaths were reported in the 0-19 years age group, and in 2021, 11% cases of the total cases and 0.70% of the deaths were reported in the 0-19 years age group.He added that of the adult patients coming in, currently, around 99% had common symptoms of fever, cough, and irritation in throat, which usually settled down after the fifth day.

Drop the IAS cadre rules amendments

States are right in perceiving the planned amendments to Rule 6(1) to be an infringement of their rightsIt was Sardar Patel who had championed the creation of the Indian Administrative Service (IAS) and the Indian Police Service (IPS) as “All India Services” (AIS) whose members would be recruited and appointed by the Centre and allotted to various States, and who could serve both under the State and the Centre. He considered the AIS essential to knit the administrative framework of a vast and diverse country into an integrated whole and to provide a connecting link between implementation at the field level and policymaking at the top. Speaking to the Constituent Assembly on October 10, 1949, Patel said, “The Union will go, you will not have a united India if you have not a good All India Service which has the independence to speak out its mind, which has a sense of security….”

Healthy conventions earlier

AIS officers are made available for central deputation through a consultative process involving the Centre, the States and the officers concerned. In the past, certain healthy conventions were generally followed. No officer was sent on central deputation against his/her own will. Every year, the States would prepare an “offer list” of officers who had opted for central deputation without arbitrarily withholding any names. The Centre would choose officers only from among those “on offer” from the States. The States would relieve the officers picked up by the Centre at the earliest.

When politics intruded

Unfortunately, both the Centre and the States have at times flouted these healthy conventions for political considerations. In July 2001, the Centre unilaterally “placed at its disposal” the services of three IPS officers of Tamil Nadu cadre. In December 2020, the Centre did the same in respect of three IPS officers of West Bengal cadre. In May 2021, the Centre unilaterally issued orders for the central deputation of the Chief Secretary of West Bengal just before his last day in service. In all these cases, the States concerned refused to relieve the officers.

Some States used to vindictively withhold the names of some of the officers who had opted for central deputation or delay their relief after they were picked up by the Centre. An egregious example was that of a senior IPS officer who was not allowed to join the Central Bureau of Investigation despite earlier clearance and was suspended by the Government of Tamil Nadu in May 2014 when she relieved herself from the State pursuant to the Centre’s direction.The Central Government has proposed four amendments to Rule 6(1) of the IAS (Cadre) Rules, 1954 dealing with deputation, and has sought the views of State governments before January 25, 2022. The existing Rule 6(1) states that a cadre officer may be deputed to the Central Government (or to another State or a PSU) only with the concurrence of the State Government concerned. However, it has a proviso which states that in case of any disagreement, the matter shall be decided by the Central Government.

Two of the four proposed amendments are disconcerting.One is a new proviso making it mandatory for the State government to provide a certain fixed number of IAS officers for central deputation every year. The proposed amendment more or less compels a Stategovernment to offer IAS officers for central deputation even when these officers themselves may not wish to go on central deputation. Poor working conditions in junior-level posts, an opaque and arbitrary system of empanelment for senior-level posts, and lack of security of tenure at all levels are the real reasons for the shortage of IAS officers, which the Centre should address. With the Government of India itself enthusiastically promoting lateral entry to posts in the Centre and providing an increased share of central deputation posts to the central services, there is no need to push unwilling IAS officers on central deputation.The other is a proviso that requires the State government to release such officers whose services may be sought by the Central Government in specific situations. Based on experiences of the recent past, State governments have a justified apprehension that this proviso may be misused for political considerations. What if the Centre unilaterally places at its disposal the services of the Chief Secretary, Principal Secretary to the Chief Minister and other key officers of a State ruled by a rival party or deputes them to other States?

Long-term damage

States are right in perceiving the proposed amendments as a serious infringement of their rights to deploy IAS officers as they deem best, especially when the cutting edge of policy implementation is mostly at the State level. The contemplated changes have grave implications for the independence, security and morale of IAS officers. If States begin to doubt the loyalty of IAS officers, they are likely to reduce the number of IAS cadre posts and also their annual intake of IAS officers. They may prefer officers of the State Civil Services to handle as many posts as possible. In course of time, the IAS will lose its sheen, and the best and the brightest candidates will no longer opt for the IAS as a career. Short-sighted decisions can do long-term damage to the polity.

Think cooperative federalism

In the words of jurist Nani Palkhivala, “A national consensus should clearly remind the Centre that it has not inherited the Viceroy’s mantle of paramountcy… The Centre would have no moral authority to govern unless it displays a sense of constitutional morality, particularly a sense of justice and fairness towards the States”. In S.R. Bommai vs Union of India (1994), the Supreme Court held that “States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre”.We hope that the Centre will heed Sardar Patel’s sage advice and drop the proposed amendments. In a federal setup, it is inevitable that differences and disputes would arise between the Centre and the States. But all such quarrels should be resolved in the spirit of cooperative federalism and keeping the larger national interest in mind.

Court and compensation

The Supreme Court has done much to grant some succour to the kin of COVID-19 victimsIt took much persuasion by the Supreme Court and all its assertiveness to get the Union government to agree last year to pay a token compensation of ₹50,000 to the families of each of those who were claimed by COVID-19. The time has now come for the Court to assert its authority once again to ensure that neither tardiness on the part of the States nor incorrect rejection of claims deprives genuine victims of their right to the ex gratia amount. In the latest hearing, the Court had to pull up a couple of States for not disbursing the amount fast enough and express concern about the high number of rejected claims. In the backdrop of reports that there has been significant under-reporting of deaths due to the novel coronavirus pandemic, the Bench had passed orders some months ago to the effect that no person’s family shall be denied the benefit on the ground that the death certificate did not specify the cause of death as due to COVID-19. Early experience since the outbreak showed that many deaths were attributed to co-morbidities rather than to the infection itself. Also, many died after testing negative during hospitalisation or after their discharge. To address this situation, the Court directed that any death occurring within 30 days of a person testing positive, or being clinically determined to suffer from the infection, will be eligible for the ex gratia payment. In addition, the Court devised an appeal mechanism in the form of grievance redress committees at the district level.

In the latest order, the Bench, comprising Justice M.R. Shah and Justice Sanjiv Khanna, has directed that if a claim has been rejected due to defects in application, the family must be given an opportunity to rectify the shortcoming and then be paid the compensation. Noting that in some cases, the number of claims is lower than the number of registered deaths, the Court has directed that officials reach out to the families on their own. It has extracted assurances from some States that claims that had been cleared but yet to be disbursed would be cleared as early as possible. Significantly, it has also mandated the disclosure of the reasons for rejection to the applicants so that they could either rectify errors or go on appeal to the committee to redress such grievances. In yet another bid to ensure that eligible families are not denied the benefit, the Court has roped in the legal services authority in each State and district to ascertain whether compensation has been paid to the kin of everyone recorded as dead due to the pandemic in official records, and facilitate the payment if it is yet to be made. The Supreme Court has done much to grant some succour, low though the quantum may be in the light of the staggering impact the pandemic has had on lives and livelihoods, to millions of people.

The gentleman spymaster who had India enthralled

Those serving the R&AW would do well to note the principles that Rameshwar Nath Kao practised with aplombJanuary 20, 2022 marked the 20th anniversary of the passing of Rameshwar Nath Kao, founding Head of the Research & Analysis Wing (R&AW) and, arguably, one of the most accomplished and influential intelligence chiefs of all time.

From 2007 till 2019, the R&AW used to hold the annual Kao Memorial Lecture at its headquarters in the last week of January but the outbreak of the novel coronavirus pandemic meant that the event has had to be kept on hold since then. This tribute is a modest attempt to give expression to the collective sense of excitement and pride that members of India’s intelligence community experience when the lecture is held.

Encomiums aplenty have been showered — and rightly so — on Kao for his unparalleled contributions to Indian intelligence. Instead of repeating what has already been said, I propose to highlight some of the qualities that made him such a formidable and successful intelligence chief. That he was a Kashmiri Pandit like several of former Prime Minister Indira Gandhi’s closest advisers, that she knew him from the time that he began looking after the arrangements for her father Jawaharlal Nehru’s security as a young assistant director in the Intelligence Bureau and that he enjoyed her complete confidence were, of course, factors central to Kao’s meteoric rise. But what were some of the other ingredients of the Kao formula for success as the Head of R&AW (1968-77)?

There was a line

The first was the scrupulous distinction that he maintained between external and internal intelligence. In recent decades, following the rise of international terrorism as a major intelligence concern worldwide, it became somewhat fashionable to say that the dividing line between external and internal threats had blurred and it was no longer possible to treat the two as separate phenomena. There may be some merit in this contention in as much as threats from without become relevant only insofar as they have an impact within. But the distinction is fundamental and none was more conscious of this fact than Kao. This was, perhaps, understandable and inevitable considering the raison d’etre of the formation of the R&AW as an organisation responsible for the collection of intelligence pertaining to developments abroad.

On Kao’s watch, the R&AW steered conspicuously clear of dabbling in domestic intelligence collection. Whenever inquiries needed to be conducted on some matter or the other within the country, Kao invariably turned to the Intelligence Bureau for assistance. The benefits were twofold: the R&AW focused its energies, without any distraction, on the collection of intelligence about India’s external adversaries and the Intelligence Bureau could not complain about being bypassed in the discharge of its core responsibility, viz. intelligence collection on developments within the country.

The Emergency and after

The second ingredient — a corollary of the first — was Kao’s sagacious policy of insulating the R&AW from the vicissitudes of domestic politics. Despite his untrammeled access to the highest levels of the political leadership, Kao studiously avoided the temptation of getting involved in internal political matters. Never was the sagacity of Kao’s approach more evident than during the Emergency. The Janata Party government that came to power following the elections of 1977 was suspicious of the role played by Kao and R&AW during the Emergency and there was an attempt to cut the organisation down to size, but no inquiry or investigation could unearth any evidence of the R&AW being even remotely involved in any of the excesses committed during the Emergency. The result was that, after some temporary setbacks, the organisation recovered its self-confidence and went back to playing its designated role in upholding national security.

The third was Kao’s uncommon ability to see the big picture while, at the same time, paying what can only be described as extreme attention to detail. Be it the liberation war of Bangladesh or the denouement in Sikkim in the 1970s or the historic opening to the United States in the early 1980s during his second coming (1981-84) as Senior Adviser in the Cabinet Secretariat, Kao kept his sights firmly on the big picture, effectively translating the broad vision of the political leadership into concrete reality on the ground. Equally, the R&AW’s sober and balanced assessments shaped the making of policy, helping to ensure that it was grounded in reality and not based on idealistic preferences or wishful thinking.The fourth was his ability to spur his officers to greater heights without being overbearing or micromanaging tasks best left to ground-level operatives. As the head of R&AW, Kao was ably assisted by a fine band of lieutenants, several of whom, like him, had been handpicked to man the Intelligence Bureau before being drafted into the external intelligence set-up. Without them, Kao would not have been half as successful as he was and he knew it. He gave them his full trust and backing and they, in turn, delivered the results that made the R&AW the formidable machine that it was to become so early in its existence.

The fifth was his disinclination, bordering on abhorrence, to engage in any form of self-projection. This attitude was best brought out by his response to the ill-informed criticism directed against the R&AW, and against him personally, for failing to prevent the assassination of Sheikh Mujibur Rahman in August 1975. The criticism pained him, especially since he had personally warned the Bangladeshi leader more than once about the threat to his life. It was in this context that he propounded the dictum that those engaged in the profession of intelligence must never expect to be rewarded for their successes but must always be prepared to be punished for their failures.

Old world

Added to these ingredients were an exquisite old-world courtesy, refinement and innate humaneness that shone through his dealings with all, from the mightiest in the land to the lowest. Such, in fact, was the generosity of spirit that characterised Kao’s dealings with his subordinates that, at times, it made him blind to the failings of some of them.

In the years ahead, India’s external intelligence agency will have to grapple with a complex array of challenges; from correctly anticipating the moves of an assertive China to countering the ever-mutating threats from the forces of radicalism and terrorism emboldened by developments in our immediate neighbourhood to safeguarding the expanding digital infrastructure that is likely to increasingly underpin our security and prosperity. To be able to rise to the occasion, those serving the R&AW will do well to hew to the first principles that the organisation’s founding father laid down and practised with such aplomb.

Ramanathan Kumar retired as Special Secretary in the R&AW. The views expressed are personal

Active cases breach 19.7 lakh mark

Country sees 3.43 lakh new cases, 682 deaths were recorded; positivity rate stands at 17.7%India recorded 3,43,535 new COVID-19 cases on Thursday, a 30% increase from a week ago. The total number of infections has reached 3.84 crore, and the number of active cases has crossed the 19.7 lakh mark.The figures are based on the State bulletins released until 9.30 p.m. on Thursday. However, Ladakh, Tripura, Jharkhand and Lakshadweep had not yet released data for the day.Karnataka recorded 47,754 infections on Thursday, followed by Kerala (46,387) and Maharashtra (46,197).On Thursday, 682 deaths were recorded in India, double the average levels recorded in the last week. The total number of recorded fatalities has reached 4,88,280Kerala reported the most deaths with 341 fatalities (309 of them are due to a backlog), followed by Delhi (43) and Tamil Nadu recorded 39 deaths.On Wednesday, 19.3 lakh tests were conducted, the highest on a single day in the ongoing wave. The test positivity rate was 17.7%.As of Thursday, 90.6% of the eligible population has been vaccinated with at least one dose, while 66.1% has received both doses. In the 15-17 age cohort, 53.4% of the population have received their first dose. Altogether, 92,34,10,212 first doses, 67,37,89,883 second doses, and 65,97,565 booster doses have been administered across India.Andhra Pradesh reported its highest ever daily COVID-19 test positivity rate of 26.6% as 47,420 samples were tested during the past day. In the 24 hours ending Thursday morning, the State reported five deaths and 12,615 fresh cases, the highest in the past 232 days.The cumulative tally increased to 21,40,056 and the death toll reached 14,527.As many as 3,475 new cases of COVID-19 were found in Bihar taking the number of active cases to 26,673. Patna district registered the highest number of new cases (745). No death due to COVID-19 was reported in the State in last 24 hours.J&K recorded 5,992 cases of COVID-19 in the past 24 hours. The Kashmir region saw 4,072 cases against the Jammu region’s 1,920 cases. Seven persons had died due to COVID-induced complications, with five reported from the Jammu region and two from the Kashmir region.

Unabated rise

Gujarat continues to see unabated rise in cases with 24,485 new cases and 13 deaths, pushing the active cases to 1,04,888 out of which 156 patients are on ventilator support.COVID-19 cases in Telangana increased by 650 infections. While 3,557 infections were recorded on Wednesday, the number was 4,207 on Thursday.The daily case load is increasing by 500-700 from the past three days.A total of 688 ICU beds and 1,187 oxygen beds were occupied till Thursday evening.

Environment Ministry plan to rank States draws ire

It doesn’t intend to hasten green clearances: officialsA proposal by the Union Environment Ministry to “rank” and “incentivise” States on how quickly they could give environmental clearances to proposed infrastructure projects has drawn fire from environmentalists on the grounds that it contravenes basic principles of environmental regulation.A note to States by the Union Environment Ministry on January 17 spells out seven criteria to rate State Environmental Impact Assessment Agencies (SEIAA) on “transparency, efficiency and accountability”. On a scale of seven, a SEIAA, for instance, gets two marks for granting a clearance in less than 80 days, one mark for within 105 days and no marks for more. If less than 10% of the projects for scrutiny prompted a site visit by committee members, to examine ground conditions, a SEIAA would get one mark. More than 20%, on the other hand, would be a demerit or zero marks. SEIAA with a score of seven or more would be rated ‘five star.’

‘Violative proposal’

The Legal Initiative for Forest on Environment (LIFE), a prominent environment organisation, described the proposal as “violative” of the Environment (Protection) Act. “A perusal of the criteria reveals that greater weightage is given for projects where due diligence is less….SEIAA members should sit in the confines of conference rooms and take decisions and earn high marks…. The process ensures that the aim will be to clear projects at the shortest possible time. The task of the SEIAA is undertake a ‘detailed scrutiny’ whereas this notification makes them rubber stamp authorities,” a statement noted.

Ministry officials told The Hindu that the ranking criteria was not intended to accelerate the speed with which clearances were accorded but to encourage the SEIAA to take quicker decisions on approving or rejecting a project, and adhere to timelines already specified by the provisions of the Act. “This system isn’t to reduce the time taken to decide on a project. If a SEIAA demands clarification, the time taken to respond won’t be deducted,” Leena Nandan, Secretary, Ministry of Environment and Forests, told The Hindu, “But SEIAA have been told earlier too that whatever clarifications they need must be compiled rather than repeatedly demanding them.”Sujit Bajpayee, Joint Secretary, Environment Ministry, wrote in responses to The Hindu’s queries that the SEIAA “had complete freedom” to complete all the necessary due diligence “without worrying about the time line” and that States would not be negatively marked for not meeting ranking criteria.

All proposed infrastructure projects above a certain size with a potential to significantly alter the natural environment must be first approved by an SEIAA, that consists of State officers and independent experts. Projects that are even bigger or involve forest land — called category A —– must be cleared by a committee of experts constituted by the Centre. SEIAA projects are category B and relatively smaller though they make up the bulk of projects that are presented for approval. ‘B’ category projects include the bulk of building and construction, small mining, and small industry projects and are considered to be ‘less polluting.’

Online process

The project appraisal process is an online process where aspirant companies must upload documents on a portal called Parivesh.Kanchi Kohli, an expert on environment law and governance matters noted that the rating system “seriously limited SEIAA members from exercising their scientific, legal and administrative knowledge.” By stressing “quick and efficient clearance” the process undermined scientific rigour in the decision making process.

The News Editorial Analysis 20th Jan 2022