Hailed as “the Ambedkar of the 21st century”, Narendra Modi has lived up to M.C. Chagla’s stricture, “Our rulers deliberately encourage minorities because they want their votes. The right to govern is more important to them than the unity of the nation.” The bombshell of New Delhi’s sudden announcement of 10 per cent reservation in government recruitment and educational institutions for the “economically backward” upper castes also illustrates that 71 years after independence, Indians still demand the crutch of special protection.
There is no sign of the additional two crore jobs that Mr Modi promised being generated every year, but the few jobs that do exist are being promised to more and more people. With Lok Sabha elections due in a few months, the pie of protection is being pared into ever slimmer slices because no one wants to be self-sufficient. When Bindheshwari Prasad Mandal, chairman of the Second Backward Classes Commission, visited Karnataka — the state which in its earlier incarnation of Mysore officially recognised the “backward” and “more backward” categories — even certain Brahmin sects demanded recognition as a backward class.
At the same time, Biharis belonging to what are called the “forward castes” clamoured for special privileges, including the right to own and use firearms. Now, jobs will be reserved for anyone who owns up to only five acres of land, earns Rs 8 lakh or less annually, and whose residential home is smaller than 1,000 sq ft and is located in a plot of 109 yards in a notified municipal area, or 209 yards in a non-notified municipality, qualifies.
Given Indian ingenuity, no one should be surprised at overnight juggling of notified and non-notified status. Apart from coping with ingenious loopholes, the government will have to reconcile the new category with existing quotas “for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes” under Article 15 (4) of the Constitution. No party dares object to the plan for political reasons but such a legislative innovation is bound to be challenged in the Supreme Court sooner or later.
No doubt the Centre will try to circumvent the question of social and educational backwardness, which is the primary criterion for any group that wants reservations, by claiming that the new amendment does not seek to call the upper castes backward. But the whole question of definition bristles with contradictions. Bihar’s Yadavs, Jats in western Uttar Pradesh or Maithili Brahmins straddle caste-class frontiers like those Karnataka Brahmins.
Some of these controversies might be clarified if and when the results of the 2011 Socio Economic and Caste census are, at last, released. But since the term backwardness has been defined in a number of judicial pronouncements, it is clear that a 10 per cent quota for the poor among the so-called upper castes might eat into the backward classes quota. Another problem is bound to arise over the reservation maximum. The Centre has often claimed that the Supreme Court’s 50 per cent cap is arbitrary. Several states like Tamil Nadu have challenged this limit and currently provide a higher quota.
The courts have taken the easy way out by using the absence of concrete statistics on population and backwardness to sustain this cap. Given this background and having failed to release any caste data, the Centre seems to have arbitrarily fixed the quota for the economically backward upper castes at 10 per cent. The question of whether a Constitutional amendment is legal will probably also be tested once the Bill has been entered in the statute book. What matters more is whether economic backwardness can be the sole criterion to establish backwardness and provide quotas. The Supreme Court 1976 decision to balance caste with poverty is easier said than done.
The court ruled that “Social backwardness is the result of poverty to a large extent. Caste and poverty are both relevant for determining backwardness. But neither caste alone, nor poverty alone, will be the determining test.” Then what will? And how will it be determined? The Mandal commission’s 1980 recommendation to provide 27 per cent reservation to the so-called Other Backward Classes was implemented in 1992, taking the overall quota to 49.5 per cent, as 22.5 per cent was already set aside for the Scheduled Castes and Scheduled Tribes.
When this was challenged in Indra Sawhney, etc, etc, vs Union Of India and Others, etc, the court went into the legality of quotas, elaborately analysing the very concept of backwardness. Its analysis drew heavily on debates in the Constituent Assembly to redefine what the Constitution meant by “backward classes”. Dr B R Ambedkar had said that the classes of citizens for whom reservations were to be made are those “communities which have not had so far representation in the state.” Building on this observation and reading it along with Articles 15 (4) and 16 (4) of the Constitution, the court commented that he was referring to “only those classes of citizens who were not so represented on account of their social backwardness.”
In short, the definition of backwardness involves a combination of social and educational backwardness as well as inadequate representation in the state services. According to the court, caste assumes the status of primary indicator for social and educational backwardness and remains the best starting point for affirmative action. “Since caste represents an existing, identifiable, social group spread over an overwhelming majority of the country’s population, we say one may well begin with castes, if one so chooses, and then go to other groups, sections and classes,” according to the ruling.
But caste need not be the only criterion for eligibility. A religious minority or occupational groups such as agricultural labourers, rickshaw pullers and street-hawkers may also be backward. This is why some states justify quotas for transgender persons and orphans. The bench held that “The word ‘community’ is clearly wider than ‘caste’ — and ‘backward communities’ meant not only the castes — wherever they may be found — but also other groups, classes and sections among the populace.”
From a legal point of view, a 10 per cent quota is as unjustified as exceeding the 50 per cent ceiling for the backward classes and Scheduled Castes and Scheduled Tribes. Both are arbitrary. Neither may result in any genuine wealth generation in the target group, being only in the nature of a pre-election bribe. One deplorable byproduct of this measure is the respectability it bestows on caste, even while pleading that the criterion is economic, which was supposedly abolished long ago. Recalling the violent protests that the Mandal report provoked in 1990, there is also the danger of more and more groups joining Marathas, Patidars and Jats to demand reservation benefits.
Sunanda K Datta-Ray is the author of several books and a regular media columnist.
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