Navigating affirmative action

The Caste Census report published by the Government of Bihar this year has apparently inspired a few more states to follow suit. The sub-categorization of OBCs in Bihar in to Extremely Backward Classes (EBCs) at 36 per cent, and Other Backward Classes at 27.13 per cent, making it a total of 63.13 per cent - a numerical majority, has obviously logical implications in terms of constitutional provisions for affirmative action. It may necessitate easing of the limit of 60 per cent of total vacancies (50 per cent as laid down by the Supreme Court in the Indra Sawhney case(1992) plus 10 per cent of EWS as provided by the 123rd constitutional amendment). Mainstreaming the backward classes through affirmative action is unmistakably an egalitarian principle enshrined in the Constitution of India. It is a shared value of all political parties without exception, signifying the progressive nature of Indian democracy. However, either the Caste Census or the existing backward classes categorisation lists prepared by various States may not necessarily guarantee the intended outcome unless certain persisting issues that have been eluding agreeable solutions since the implementation of Mandal Commissions’ recommendations three decades ago are addressed earnestly.

At the outset, the criteria of identification of backwardness has all along been a bone of contention since the first BC Commission (Kaka Kelkar) and even today there exists no objective criteria. The yardsticks differed from State to State. When Andhra Pradesh, Karnataka, Kerala, Bihar, and Gujarat adopted Caste and income as criteria to qualify a backward class, J&K chose occupation, Caste and residence as parameters. States like Maharashtra, Punjab, Tamil Nadu and UP have gone only with Caste as the sole criterion. In cases like Balaji vs. State of Mysore, Jayasree K.S. vs. State of Kerala, Periakaruppan A. vs. state of T.N, etc it was laid down by the Supreme Court that social backwardness is likely to be aggravated by caste factor but the classification of backwardness cannot be made solely on the basis of caste; occupation or geographical location of people may also contribute to the backwardness. Even the NCBC Act 1993 defines that “backward classes” mean such backward classes of citizens other than the Scheduled Castes and the Scheduled Tribes but prescribes no specific criteria.

The problem is that except for Mandal Commission’s report, self-seeking Sate Commissions’ reports or sprinkling of rapid surveys, there is no proper data from independent investigations on the subject. Essential social indices such as factors relating to atrocities, discrimination, disadvantage, visible social and educational backwardness, aspects of income, land holdings and occupation etc have found no room in the avowed ‘criteria’. The Supreme Court in Anwar Ali Sarkar’s case (1952) observed that “permissible classification must satisfy two conditions, namely, (1) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question. The differentia and object are different and it follows that the object by itself cannot be the basis of the classification”. Articles 16(4) and (6) mention only ‘Class’ and not ‘caste’ meaning thereby that a reasonable classification of people is necessary for affirmative action. Because all castes are classes but all classes are not necessarily castes. Hence the expression ‘classified legislation’ as opposed to ‘Class legislation’.

States may have their own compelling reasons for Caste Census, but if the end result happens to be only enlistment of ‘castes’ in to backward classes without any objective and comprehensive criteria, such an exercise will only dilute the spirit of affirmative action. Because the Caste Census is not an end in itself, but a means to a greater end - the upliftment of real marginalised classes. For example, the rider of ‘creamy layer’ remained far from effective as government orders describing what a ‘creamy layer’ should consist of, have been inconsistent and largely subjective. Some states even went up to such an extent as declaring that they had no creamy layer at all.

Before embarking on a mission of further inclusions in lists, it is necessary to review the action taken with regard to the rulings of the court in Indra Sawhney on ‘entertaining, examining and recommending upon requests for inclusion and complaints of over inclusion and under-inclusion in the lists of other backward classes of citizens’ by the permanent body i.e. the NCBC (constituted as per the court’s orders). It is also imperative to verify whether certain socially advanced persons/sections were excluded from the designated ‘Other Backward Classes’ because the condition in 16(4) ‘not adequately represented’ should also not be lost sight of. Section 11 of the NCBC Act lays down that Lists of backward classes shall be revised at the expiration of every 10 years from the date of commencement of the Act, i.e., 1-2-1993. As observed by the majority of Judges in the Indra Sawhney case "the very concept of a class denotes a number of persons having certain common traits which distinguish them from the others….if the connecting link is the social backwardness,…and if some of the members are far too advanced socially…, the connecting thread between them and the remaining class snaps; exclusion of such members benefits the truly backward". The 18th Report of the Parliamentary Standing Committee to which the Central Educational Institutions (Reservations in Admissions) Bill, 2006 was referred had observed that the list contained a total of 2,303 castes and several more included after 1993, but hardly any exclusions were reported.

Most importantly, affirmative action does not mean only job reservations (Art.16(4)). It also means special schemes or programs for educational development, agriculture and allied activities, revival of traditional caste-based rural economic activities or occupations etc. under Article 15(4) for advancement of ‘socially and educationally backward classes’ which should be the priority for governments. It was observed by the court in C.A. Rajendran v. Union that Article 16(4) is not a fundamental right but only a discretionary power of the State. Moreover, government jobs do not account for more than five per cent of the entire employment sector and as such the reservations in posts are only representative in nature - a piecemeal social engineering.

Finally, although the 127 Constitutional Amendment enabled the States and UTs to prepare their own lists of Backward Classes, and also provided exemption from Article 338 (mandatory consulting with NCBC), but in the interest of overall national interest and to ensure effective execution of affirmative action an endeavour is necessary for consensus on various issues between Centre and States. It is worth quoting Justice Thommen (Indra Sawhney, 1992) “… It is wrong and unwise to see affirmative action .. merely focused on reparation for past inequities. It is a forward-looking balancing act of reformative social engineering; an architecture of a better future of harmonious relationship amongst all classes of citizens; an equitable redistribution of community resources with a view to the greatest happiness of the greatest number of people…”.

The writer is a former Addl. Chief Secretary of Chhattisgarh. Views expressed are personal