The Appellate Division of the Supreme Court has postponed the High Court verdict on quota in government jobs for a month. That is a good sign. It is also expected that this will play a role to reduce the discontent of protestors against quota system and dispel sufferings of the people. However, this is not the final solution.
I think the final solution is in the government’s hands. In the past the government abolished quotas in the face of movement. That was not a good solution. The protestors also did not want this. They wanted reforms in the quota system.
If these reforms are to be carried out, we have to clearly understand Articles 28 and 29 of the constitution. Article 28 says the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Article 29 stipulates that there shall be equality of opportunity for all citizens in respect to employment or office in the service of the Republic. The main principles of two articles are against discrimination.
However, in many constitutions in the world, there are some exceptions. If the government deems it necessary, it can take special measures for the backward section of the population. So as per articles 29 and 28, quota system is necessary not obligatory.
2.
If the quota system is to continue, that has to be done constitutionally. Quota facilities should be in place only for the backward section with the purpose of securing their adequate representation in the service of the republic. The quota system cannot be a permanent arrangement. If adequate representation is ensured, the continuity of the quota system will not be consistent with the constitution.
We admit that ethnic minorities have been deprived for generations and those who are physically challenged, of course, deserve special attention. Before 2018, there were arrangements of quota for women and districts under the existing system. Of this, district quota can be considered anti-constitution. Articles 28 and 29, clearly prohibited discrimination based on birth place. Women quota is consistent with the constitution, however, that could remain until adequate representation is ensured. Freedom fighters’ quota is widely discussed and there are a lot of controversies over this.
The third generation of freedom fighters (grandchildren of freedom fighters) is included in the quota system. During the debate in constituent assembly or in any articles of the constitution, it had not been stated that there will be a quota system for freedom fighters in government jobs.
During the discussion on Article 15, the issue of providing social security to the families of crippled and martyred freedom fighters was discussed. Accordingly, existing freedom fighters’ allowance and other allowances are constitutional. But considering all freedom fighters backward randomly, providing quota in government jobs forever is not constitutional.
While formulating the constitution in September 1972, a 30 per cent quota was given for freedom fighters as per interim recruitment rules and several hundred freedom fighters were recruited in 1973. This was done as a temporary measure, and the proof of it is that the rule is called interim. This is not consistent with Article 20 of the constitution and the proof of it that as per Article 150 it is necessary to give protection of this temporary system separately.
It must be remembered that the interim or temporary rules only talked about the quota for freedom fighters, not for their children or grandchildren. Therefore, the extension of the freedom fighter quota to children and grandchildren in 1997 and 2011 respectively is against the interim rules and also against Article 29 of the constitution. Besides, keeping a 30 per cent quota for enlisted freedom fighters, who were 0.1 per cent of the total population of the country, is not consistent with the constitutional principle of ensuring “adequate representation”.
We all know that the liberation war was a people’s war. Apart from the listed 175,000 people (the first list contained some 70,000), millions of people helped in different ways in the liberation war; millions of people had to make supreme sacrifices for it, millions of people had to suffer indescribably. Keeping a 30 per cent quota for the 150,000-200,000 enlisted freedom fighters is highly discriminatory and humiliating for these millions of people and their families.
I think quota can be kept in government jobs only for the families of freedom fighters who were crippled or killed in the liberation war, considering them a “disadvantaged” community. But if one member of their family each gets appointed under the quota, there is no reason to reserve any more place for someone else of the family. If the quota position remains vacant, there is no reason not to fill it with persons on the basis of merit.
On the whole, I think a maximum 5 per cent quota (subject to ensuring adequate representation) for families of disabled and killed freedom fighters (as backward) would be acceptable to all. Altogether 10 to 15 per cent recruitment under quota (including minorities and physically challenged) can be considered reasonable.
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I think it is the government who is responsible to formulate such a reasonable quota system consistent with the constitution. Zaheed Ur Rahman in Prothom Alo Wednesday explained in his article that the executive department of the government has the jurisdiction to decide whether there will be a quota or not, what percentage will be there and for how many years. I would like to add to this that such policy matters are not the jurisdiction of the court under the “doctrine of political questions”.
Some of the High Court verdicts (for example, a case on hartal during the Ershad regime) acknowledged this doctrine. There are instances in India that when the High Court contravened this, the parliament made that invalid through legislating laws.
The government’s main task now is to argue to the High Court through the Attorney General’s office that quota-related decisions are within the government’s jurisdiction. Courts can interfere in this only if the constitution is violated by the quota system (for example, if there is a law providing quota to people of a certain district, religion or party in government jobs); not in questions on why there is no quota for someone or why there is such a percentage. If the Attorney General’s office presents these arguments earnestly, I believe those will be accepted in court.
The second task of the government is to amend the circular which abolished the quota. It must be remembered that the High Court has called this blanket “cancellation” illegal. No court, however, has said, nor is it supposed to say, that the government has no authority to “amend” the circular issued by the government.
Changes were made in the provision of quotas in government jobs in 1997 and 2011. If the government can do it then, why can’t it do so now? It is the legitimate authority of the government as per the principle of separation of powers and our constitution.
The third task of the government is to give a logical shape to the amended quota system. The government could take into account the reports of various persons, including Akbar Ali Khan, and commissions in this regard. The proposals I have made above are consistent with those reports.
* Asif Nazrul is professor of law department at Dhaka University
** This op-ed, originally published in the print and online editions of Prothom Alo, has been rewritten in English by Rabiul Islam and Shameem Reza