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Polity-The Discourse on Reservations (Landmark Judgements-Part 6) !!!

  1. Indra Sawhney v. Union of India (1992)
  2. Reservations: From the British Raj to the Constitution of India
  3. Post-constitutional Developments
  4. And Along Came the Mandal Commission
  5. The Mandal Challenge
  6. Off with the ‘Creamy Layer’
  7. Extending Mandal to Education
  8. Caste in India: The Road Ahead

INDIA’S POLICY OF reservations is an issue that almost every Indian born post Independence ponders over, criticizes, utilizes, or suffers from at some stage in life. The expression ‘reservations’— alternatively referred to as ‘affirmative action’ or ‘positive discrimination’ or ‘compensatory discrimination’—refers to justice granted to persons belonging to historically disadvantaged groups.

In India, reservations mandated by the Constitution are implemented in the form of percentage-based quotas favouring citizens from traditionally lower rungs of society. In India, reservation is closely linked to the caste system.

Caste-based discrimination finds its genesis in the erstwhile varna system of the Hindus. Hindus were classified into four occupational tiers: Brahmins (scholars, priests, sages), Kshatriyas (warriors), Vaishyas (agriculturists, merchants) and Shudras (labourers, artisans, craftsmen).

The first three groups comprised ‘higher castes’ while Shudras were considered to be from a ‘low caste’ background and not permitted to accumulate wealth.2 Meanwhile, there were also the Dalits (earlier called ‘untouchables’) who were considered inferior beings and fell completely outside this four-fold classification—they were considered avarna or casteless.

Most upper-caste Hindus shunned any form of contact with the Dalit community. Each of these castes is further classified into hundreds of hierarchically stratified sub-castes. Reservations have had a chequered political history in the context of public employment and admissions to higher educational institutions. Joining the government service in India is considered, at least by the masses, to be a prestigious, stable occupation with a regular income—it offers job security, pension, and, in the case of senior officers, free housing.

With the liberalization of the Indian economy, the importance of citizens’ educational background has overtaken their physical capital in the labour market. It is not surprising then that there is such a scramble to get sub-castes classified as ‘backward’, get fake caste certificates issued and have fraudulent income statements prepared.

Today, nearly half a billion Indians are eligible to avail of some form of preferential treatment; the count would be higher had it not been for the Supreme Court’s periodic interventions.

Backward communities in India are broadly divided into the following categories: (1) Scheduled Castes (SCs), comprising Dalits, (2) Scheduled Tribes (STs), comprising tribal communities living in isolated parts of India, and (3) Other Backward Classes (OBCs), identified as socially and economically backward.

Reservations for OBCs have been the most contentious and have caused a backlash in many parts of India. At the heart of this backlash was the Supreme Court’s judgement in Indra Sawhney v. Union of India (Indra Sawhney). It sought to reconcile the conflict between uplifting the poor while giving the criterion of ‘merit’ its due.

Way back in 1902, Shahu IV, the Maharaja of Kolhapur in Maharashtra, took the first organized step to provide reservations for backward classes in India. His aim was two-fold: eradicate poverty in the backward classes and increase their involvement in public administration.

The British took their cue and, from the early 1900s, developed religion- and caste-based policies of reservation in the sphere of public governance—a tactic widely perceived as a centrepiece of their ‘divide and rule’ strategy.

For instance, the Indian Councils Act of 1909 (better known as the Morley–Minto reforms) provided separate electorates for Muslims and reserved seats in municipal and district boards, provincial councils and even in the legislature for India at the time.

The Government of India Acts of 1919 and 1935 also had provisions for reservations. These precursors to the Indian Constitution which entered into force in 1950, laid the foundation for an intricate reservation framework.

Although Article 14 of the Constitution gives to all people the right to equality before the law, Article 16(4) allows the state to make ‘any provision for the reservation of appointments or posts’ in favour of backward classes not represented adequately in services under the state.

Article 46, a directive principle of state policy, sets out that the state must promote the educational and economic interests of SCs and STs.

Article 340 authorizes the President to form a commission to make recommendations for improving the conditions of backward classes.

Articles 341 and 342 lay down the procedure to ascertain which castes and tribes should be considered as SCs and STs, respectively.

The first confrontation between the Parliament and the courts on the reservations issue took place just a year after the Constitution came into effect in 1950. Some colleges in Madras implemented detailed quota-based reservations, but the Supreme Court struck them down, explaining that the reservations, which were based on race, religion and caste, were opposed to Article 29(2) of the Constitution, which embodies a fundamental right which states that no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds only on grounds of religion, race, caste, language or any of them.

In reaction, the Parliament amended Article 15 of the Constitution to allow the state to make special provisions for the advancement of socially and economically backward classes, SCs and STs.

By 1951, provisions for reservation in educational institutions and in public employment were constitutionally mandated, under Articles 15 and 16, respectively.

In 1953, the First Backward Classes Commission (1955), also known as the Kaka Kalelkar Commission, was formed under the chairmanship of Kaka Kalelkar, a social reformer and Rajya Sabha member, to make recommendations on how the position of backward classes in India could be enhanced (under the ambit of Article 340).

Two years later, the commission identified 2399 backward groups on the basis of the following criteria: education, participation in public sector employment, trade and occupation, and—most significantly—position in the traditional Hindu caste system.

Kalelkar himself strongly disapproved of the commission’s methodology and conclusions, underscoring the fact that undue emphasis on caste, as against economic indicators, would exclude destitute Muslims and Christians from the benefit of affirmative action, since Christianity and Islam do not have a caste system.

The recommendations never saw the light of day. It was left up to the states to develop their own criteria to ascertain the groups for whom they would reserve quotas in education and public employment.

The Supreme Court’s supervisory role to monitor the extent of reservations in states across India began with the judgement in M.R. Balaji v. State of Mysore (Balaji). In 1962, the state of Mysore (now Karnataka) issued an order reserving 68 per cent of the seats in engineering and medical colleges for SC, ST and OBC students.

Twenty-three petitioners challenged this order, emphasizing that the extravagant quota was a fraud on the constitutional policy of reservations. Interpreting Articles 15(4) and 16(4) that deal with reservations in education and public employment, the Supreme Court balanced the competing interests of rewarding merit and uplifting the deprived classes by affirming that reservations should not usually exceed 50 per cent, since that would deprive meritorious candidates of a reasonable opportunity of admission/selection.

It also said that while caste was an important criterion to ascertain social backwardness, it could not be the sole criterion, since religions other than Hinduism do not recognize caste-based distinctions.

In later cases, it reiterated and developed some principles laid down in the Balaji decision. In 1975, in a subsequent case before the Supreme Court, although the Balaji decision was not overruled, a few judges opined that the extent of reservations may exceed 50 per cent in proportion with the actual population of backward classes.

While asserting that caste was the appropriate parameter to identify backwardness, the court in K.C. Vasanth Kumar v. State of Karnataka also failed to conclude whether the 50 per cent reservation ceiling imposed in Balaji was applicable. Thus, by the late 1980s, there was rampant confusion and uncertainty regarding the constitutional boundaries of India’s reservation policy.

Would reservations above 50 per cent be considered unconstitutional?

Would caste be the only criterion to determine the backwardness of communities?

Could state governments take economic indicators into account while listing backward classes?

Over two decades after the first backward classes commission report was published, Prime Minister Morarji Desai fulfilled the Janata Party’s electoral promise by constituting the second commission on backward classes in 1979. Set up under the chairmanship of B.P. Mandal, former chief minister of Bihar and member of Parliament, the commission was formed to:

(1) Determine the criteria for defining ‘socially and educationally backward classes’,

(2) Recommend steps to be taken for the advancement of socially and educationally backward classes, and

(3) Examine the desirability of making provisions for reserving appointments/posts in favour of such backward classes of citizens.

In 1980, the Mandal Commission submitted its report—it applied eleven relative indicators, grouped into three broad heads (social, educational and economic) to ascertain which classes could be treated as socially and economically backward.

The commission found 3743 socially and economically backward castes via these parameters—a figure 50 per cent higher than that arrived at by the Kalelkar Commission. From the caste figures based on the census of 1931the last time a caste census had been conducted in Indiaas well as the population census of 1971, the Mandal Commission inferred that OBCs (comprising the 3743 castes mentioned earlier) constituted about 52 per cent of the population of India.

Since there already was a 22.5 per cent reservation for SC/ ST candidates, introducing 52 per cent reservations for OBCs (in line with their population) would contravene the Supreme Court’s decision in Balaji and other cases.

So, the commission decided to provide for a 27 per cent reservation for OBC candidates, so that the overall ceiling of 50 per cent would not be breached. This quota was to be applicable to the civil services, public sector undertakings, nationalized banks, government-aided firms in the private sector, etc. at the centre and state level. It was also to govern the admission of students to scientific, technical and professional educational institutions funded by the central and state governments.

If the recommendations of its report were implemented, the Mandal Commission would have ensured reservations for OBCs in central government establishments for the first time ever. Several sections of society sharply criticized the Mandal Commission’s recommendations and questioned its fundamental methodology of relying on caste figures dating from 1931 to set the OBC population at 52 per cent.

Subsequent studies have shown the figure to be much lower. Many believed that the Mandal Commission report would meet much the same fate as the Kalelkar Commission report. However, in 1990, Prime Minister V.P. Singh decided that his government would implement the Mandal Commission recommendations after ten years of dormancy.

This announcement provoked unprecedented violence, protests and rioting, particularly in northern India. Students boycotted classes, blocked traffic, hijacked buses and smashed car windows. One of the most horrific forms of protest was started by Rajiv Goswami, a student of Delhi University, when he doused himself with petrol and attempted self-immolation.

This sparked off a series of over 100 self-immolations by students protesting the implementation of the Mandal Commission report. The decision of the V.P. Singh government to legalize the report was a vital reason for its downfall: the reduction of its support base, its premature dissolution and subsequent loss in the general elections that followed .

Two office memorandums were issued to implement some of the Mandal Commission’s recommendations relating to public employment. Read together, the memorandums had the following import: 27 per cent of the civil posts under the Government of India would be reserved for OBCs (including castes/communities common to the Mandal Commission report as well as the respective state government’s list of backward classes). Among the backward classes, preference would be given to the poorer sections.

If, after giving first preference to poorer sections, there were still vacancies, these could be filled by the others within the backward classes. However, OBCs recruited on the basis of merit would not be adjusted against the 27 per cent quota. Finally, 10 per cent of the vacancies would be reserved for other economically backward sections uncovered by existing schemes of reservations.

Indra Sawhney, a journalist, filed a public interest litigation (PIL) stating that these memorandums were not constitutionally valid. This PIL was clubbed with several other writ petitions, also challenging the constitutionality of the office memorandums under Article 16 and other provisions of the Constitution.

A nine-judge bench of the Supreme Court—which was, at the time, the largest bench ever constituted to hear a reservations case—sat in judgement over the constitutionality of the office memorandums and the constitutional boundaries of India’s reservation policy in general.

The judgement was divided. Four of the nine judges delivered a common opinion but each of the others delivered an individual opinion. The majority vote was 6:3 on most questions answered by the court.

Recognizing that caste had become the ‘cancer cell’ of Hindu society and the ‘biggest curse’ for India, the court emphasized that position in the Hindu caste hierarchy should be used as a criterion to determine if a class could be considered backward.

In the case of non-Hindus, the extent of backwardness of a community would be assessed on the basis of non-caste factors, such as income level and education. Using an open and pragmatic approach, the court emphasized that it did not aim to perpetuate caste consciousness in India, but it did intend to acknowledge existing social realities rather than sweep them under the carpet.

One of the most serious concerns surrounding the policy of reservations was ensuring that advanced or prosperous members of the backward classes (the ‘upper crust’) did not exploit a system intended to benefit the destitute and the disadvantaged.

In the most well-known portion of the Indra Sawhney judgement, the court said that those who formed the ‘creamy layer’ of OBCs should be excluded from the reservations regime. Any person with a gross annual income above a certain limit should not be allowed to vie for a place in the reserved category.

Moreover, as per the ‘intergenerational transmission of status’ principle, children whose parents held important public positions (for example, in the administrative service, police service or foreign service) should not be permitted to avail of reservations.

This was a significantly pertinent principle, especially in India, where most often the socio-economic standing of a child’s parents would determine the opportunities available to the child. Excluding those a ‘notch above the rest’ was the court’s method to ensure that the benefits of reservation seep to the lowest rungs of backward communities.

What specific factors would define the ‘creamy layer’ though?

The court left that to the government’s discretion. The court then found that the 10 per cent quota for economically backward persons (otherwise not entitled to avail of reservation) was unconstitutional. Neither does the Constitution contemplate reservation based solely on economic grounds nor is it aligned with the purpose of reservation—to uplift historically disadvantaged groups, not eradicate poverty in general.

It also recognized the 50 per cent ceiling on reservation laid down in the Balaji case. Since the 10 per cent reservation for other economically backward persons was invalidated, the remaining reservations contemplated by the memorandums fell within this limit.

The court also disallowed the Mandal Commission’s finding that reservations should also apply to promotions, thus restricting its ambit to the appointment stage. The court also said, rightly, with regard to some technical positions (for instance, in the case of pilots, scientists and nuclear technicians), by virtue of the nature of work, appointment should only be based on merit.

Lastly, the court ordered that there should be commissions at the central and state level to decide whether a community should be included in or excluded from the ‘backward classes’ bracket.

The Indra Sawhney judgement was criticized for bringing the issue of caste to the fore in Indian politics. Some believe that the decision ushered in a new wave of caste consciousness by virtually equating ‘class’ with ‘caste’.

The Supreme Court’s decision was followed by violence and protests in parts of the country, though not as pronounced as that when the V.P. Singh government made its Mandal Commission announcement—this is perhaps because by end-1992, another politico-religious issue had taken centre stage: the Babri Masjid in Ayodhya.

Within three years of the Indra Sawhney judgement, the Parliament inserted Article 16(4A)42 into the Constitution, permitting reservations for SCs and STs to extend to promotions. This was a political tactic and was meant to nullify the portion of the court’s judgement that disallowed reservation at the promotion stage.

In the years after the Indra Sawhney judgement, there were many passionately contested cases on the reservations policy in higher education. Though the controversy over the Mandal Commission recommendations slowly died down, the United Progressive Alliance (UPA) government reignited it in 2006 when it passed the Central Educational Institutions (Reservation in Admission) Act (the CEI Act).

This act implemented the report’s other recommendations, via which 27 per cent of the seats in all government-funded institutions would be reserved for OBCs. Almost immediately after, a writ petition was filed to challenge the constitutionality of the Act; two years later, the Supreme Court delivered its verdict upholding the Act as constitutionally valid. The court upheld the act’s constitutionality and endorsed the 27 per cent OBC quota. However, as asserted in Indra Sawhney, the court reiterated that the benefits of such reservation would not be offered to the ‘creamy layer’ of the backward classes.

Thus, the court continued its effort to minimize the dangers associated with a reservation scheme founded primarily on caste.

In 2012, the Supreme Court upheld the extension of the reservation policy to primary educational institutions as well. Section 12(1) of the Right of Children to Free and Compulsory Education Act, 2009—according to which all primary schools (including private unaided institutions) were to reserve 25 per cent of their seats for children belonging to socio-economically backward classes, SCs and STs—was challenged before the Supreme Court.

By a majority of 2:1, the court upheld the provision, explaining that reservations fell within the reasonable restrictions contemplated by Article 19(1)(g), which grants the fundamental right to practise any profession, or carry on any trade, occupation or business (including the right to run educational institutions), stating that reservations constituted a reasonable restriction on the right to run educational institutions under Article 19(1)(g). However, even as the Supreme Court validated reservations in primary educational institutions, it exempted minority institutions from the ambit of the reservation policy.

In 2011, under pressure from coalition as well as opposition parties, the UPA government decided to conduct a ‘caste census’ in India. This was the first caste census since the one under British rule in 1931.

There was widespread debate about whether a caste census should be conducted. The decision to count caste figures in India is justified, as no quota should be allowed to operate in a data vacuum.

In 1979, the Mandal Commission used the 1931 census to calculate the number of OBCs in India; even today, that data from eighty years ago is the only empirical data based on which we make reservations.

There is uncertainty about the exact proportion of OBCs in India; figures ranging from 38 per cent to 52 per cent of the population have done the rounds in the last few years. No country can put job and education quotas in place for an underprivileged segment of the population and then bury its head in the sand about the boundaries along which those entitlements are drawn.

Apprehensive that caste figures will be inflated, the Union Cabinet, on 9 September 2010, decided to delink the regular population census from the caste census. This is an unhappy situation—not only is there the additional cost, what’s more, caste figures are not meaningful or relevant when isolated from the information collected in a regular population census.

We need a complete picture of India’s caste dilemma before we can seriously think of ways to eradicate it. Clearly, India’s discourse on reservations hinges not on whether it should exist, but on who should benefit from it. At some stage, however, policymakers will have to confront the larger question— how and when can reservations be phased out?

August 28, 2017

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