`Petitioners were wrong in history'

Interview with P.S. Krishnan, former Secretary, Ministry of Welfare.

P.S. Krishnan, Honorary Adviser to Human Resource Development Minister Arjun Singh on the reservation issue, has decades of experience in handling matters related to the backward classes movement. As Joint Secretary, Ministry of Home Affairs, and later in 1990, as Secretary, Ministry of Welfare, his imprint was there at each stage of the evolution of the Mandal Commission - in its appointment and functioning and in processing its recommendations in 1979-80. He also contributed significantly to the preparation of the Central government's affidavits in the Indra Sawhney case in 1992, which resulted in the Supreme Court upholding the reservation of government posts for the Other Backward Classes (OBCs). As a Member of the Expert Committee on Backward Classes in 1993, he facilitated the adoption of the creamy layer concept in accordance with the Supreme Court's directions and thereafter led the first phase of the process of preparing Central (Common) Lists of Backward Classes. Again his presence as Member-Secretary of the National Commission for Backward Classes (NCBC) from 1993 to February 2000 and his encyclopaedic knowledge of the caste system have helped ensure that genuinely backward communities that were left out in the first phase Central Lists were brought into the lists and that efforts to bring in communities that are not socially backward, were barred. Krishnan has formulated hundreds of Statutory Advices and Findings on behalf of the Commission.

He has brought out a book titled Three Historical Addresses of Dr. Babasaheb Ambedkar in the Constituent Assembly in which his Preface underlines the link between Ambedkar's diagnosis of the Indian polity in 1949 and its current fragility. He spoke to Frontline on the implications of the Supreme Court's stay of Section 6 of the Central Educational Institutions (Reservation in Admission) Act, 2007 with regard to OBCs. Excerpts from the interview:

There is a perception that the Union government could have handled the case better than it did before the Supreme Court. as it is clear that the court is not convinced about the merits of not staying the operation of Section 6 of the Central Educational Institutions (Reservation in Admission) Act, 2007.

Rarely did the Government of India fight any case involving reservation as well as this time. What have we done? We have identified the major issues that have arisen in each writ petition. They are repetitive - not only now but during the last 40 years. The Supreme Court had held that listing of backward classes in terms of units of caste is constitutionally valid, in Minor P. Rajendran v. State of Tamil Nadu in 1968. A crucial part of this judgment was that caste is also a class. If a whole caste is socially and educationally backward, then there is nothing wrong in classifying that caste as a backward class even if some individuals in that caste might have moved up [socially].

What are the issues that have arisen as a result of the Supreme Court's interim order on March 29 in the Ashoka Kumar Thakur case?

There are two issues with reference to which the interim order has been passed. They are: lack of up-to-date data and the non-exclusion of creamy layer. So far as the non-exclusion of creamy layer is concerned, the order itself acknowledges that the government has given certain reasons why the creamy layer formula is not applicable to reservation in educational institutions. This has to be considered. So far as data are concerned, in my view, they are required for different details and different purposes. Suppose I am going to organise a project for backward classes belonging to the fishermen community, then I will need data not only about their population but also their age distribution, number of workers, level of education, the kits available, what infrastructure would be required, etc. I would require much more data, if it is a project.

For reservation, only two things are required. One is what the appropriate percentage of reservation should be. The second requirement is a properly prepared, and constitutionally valid, list of the backward classes who would be eligible for reservations.

Is it proper to rely on the 1931 Census data?

There is an incorrect impression that the 1931 Census is the basis on which the backward classes were identified, and that they were identified according to the conditions 80 years back. The backward classes had been identified before the 1931 Census. The current list was prepared not on the basis of the 1931 Census but through multiple procedures in the contemporary context. The Mandal Commission held its investigations in 1979-80. So it pertains to the conditions at that time. And what were these multiple procedures?

First was the evidence placed before the Commission by the communities saying that they were backward, and their [the members of the Commission] own tours to gain first-hand knowledge of the conditions of the backward classes. Secondly, the Commission had gone through the 1961 Census, where there are some figures pertaining to nomadic communities, and special groups.

Third, the Commission also studied the lists prepared by various State governments of backward classes in their States. Lastly, the sample survey that resulted in the preparation of Statewise lists. The government did not accept the Mandal Commission report in toto. The procedure the government adopted was of double distillation. This process brought about 2,000 communities and castes into the list of backward classes as against the 3,743 in the Mandal list.

As per the direction of the Supreme Court in the Indra Sawhney case, a permanent mechanism was created, namely, the National Commission for Backward Classes under an Act. This Commission had the responsibility and the power to consider requests for inclusion in the lists of backward classes, and complaints of over-inclusion or under-inclusion. In the process, some of the communities that were in one list, and not in the other , were not included. Those who were in neither list also came up. A number of them were rejected. The Commission advises the government and the government invariably complies with the Commission's advice, because the Act says that the advice of the Commission is ordinarily binding on the government, which is what the Supreme Court laid down. The Commission then advised the inclusion of 200-odd communities, making up a total of 2,200-odd communities. The Supreme Court rightly observed in the Indra Sawhney case that the Central government did not accept the whole Mandal list. They have only included those communities that are common to both the Mandal list and the State lists. Thus it is virtually the State lists [that prevailed]. All the State lists had withstood the test of time and judicial scrutiny. Many of them had gone to the Supreme Court in different cases. In all these cases, the Supreme Court had upheld all these lists. All the criticisms now being made were also raised at that time. All these arguments were repeated in the Mandal case (Indra Sawhney) but were rejected by the Supreme Court.

It appears from the interim judgment that the Central government's list of OBCs has not been revised as required under the National Commission for Backward Classes Act, 1993.

It has been done. The Ministry of Social Justice wrote to the NCBC in 2003 in terms of Section 11 of the Act, and it advised the government that no community should be deleted from the list under that section at that stage. Logically, is there anything wrong in that because Central reservation started only in 1993? In 10 years, will the consequence of hundreds of years of denials, deprivations and oppressions disappear? Now, it is quite possible that there are question marks over the inclusion of certain communities in these 10 years; it might have even been the case earlier. Does it remain backward? Was it backward at the time it was included? For that also, the Supreme Court has created a procedure. It is as simple as the Right to Information Act. Anyone is free to complain to the Commission that certain castes or communities in the Central list within a State are not socially and educationally backward for certain reasons. The Commission is bound to consider the complaint and give its advice to the government. The government is bound by its advice. If there is a deficit in this duty and responsibility, then the complainant can go to the Supreme Court.

The petitioners in the latest case have raised a number of issues that have a bearing on the effectiveness of the reservation. Is there any merit in their plea?

Many of the claims in the writ petitions are wrong. We have pointed out every one of them. The Union of India's counter-affidavit to the writ petition filed by the Resident Doctors' Welfare Association is the most exhaustive. There are so many errors. For example, one of the writ petitions says that reservation policy was started by the British as part of their divide-and-rule policy, and what is being done now is the continuation of that. We pointed out that reservation policy was started first by the Maharaja of Kolhapur in 1902. There was no politician active at that time, because there was no question of vote-bank politics. The Maharaja of Mysore started reservation in 1921. In all these cases, there was a long history of social movements, agitations against monopolies. In the case of the Mysore [princely] state, the Maharaja of Mysore appointed the Chief Judge of Mysore, Justice Miller as the chairman of the committee to examine who the backward classes and what should be done to bring their representation to a better level. And on the basis of the committee's report, which was submitted three years later, the Maharaja passed the order. Like that, we have shown how the petitioners were wrong in history, and sociology.

Is the March 29 interim order contrary to the letter and spirit of the earlier judgments of the Supreme Court?

We have said that all those writ petitions and stay petitions pertain to the same subject and the issues therein are similar. Each of the contentions raised in the petitions already stand negatived by the Supreme Court. There are mainly two issues: one, the lack of up-to-date data. In the Indra Sawhney case also this issue was raised. The Supreme Court said that the Mandal Commission had gone by the 1931 Census for listing the backward classes. But these classes were identified on the basis of the Commission's inquiry and investigation. Whatever evidence they got, there was nothing wrong about it. We also refuted the allegation of the petitioners that reservation for the backward classes is disintegrative. We answered it by citing the Indra Sawhney judgment, which says that reservation is one of the means of integrating society, fractured by the caste system over hundreds of years.

How will the government plead for the vacation of the stay order?

In the Indra Sawhney judgment, the nine-Judge Bench bemoaned that 43 years had passed without OBC reservation in Services. In the case of OBC reservation in educational institutions, 55 to 57 years have passed without the reservation policy. We are now set to lose one more year because of the stay. We will also point to the balance of convenience. In all matters of interim orders, the balance of convenience is considered.

This is a unique Act where while providing for reservation for backward classes, the government has taken a policy decision and incorporated in the Act that while doing this, the expansion will be done in the seats in such a manner that the present number of unreserved seats(the general category seats) will not come down. Suppose the Act is not stayed, there is no loss to the general category. Suppose it is stayed, backward classes will lose one more year - over and above 57 years. It was pointed out to the Bench.

The Bench was not convinced?

We cannot say it was not convinced because it has not dealt with it. People can draw their own conclusions. I can only say that there is enough data. The nine-Judge Bench in 1992 found that the data were adequate to arrive at 27 per cent reservation, and upheld the manner in which we drew up the list of backward classes, that is, by including entries common to the Mandal list and the State lists.

The Supreme Court has also pointed out the discrepancies in the data on OBC population released by different agencies.

Let us take the NSSO [National Sample Survey Organisation]. The NSSO has for the first time come out with the figures of the SEBCs [Socially and Economically Backward Communities] in 1999-2000. At that time, the backward classes in the Central context were six years old.

The methodology followed by the NSSO was something like this: The NSSO volunteer would ask the head of the family whether he belonged to the backward class. If the respondent said yes, then he would record the whole family as the backward class. If he said no, then it would not be recorded. In 1999, many members of backward classes did not know that they belonged to backward classes. Secondly, the NSSO has no knowledge of backward classes. The NSSO has experience in matters like unemployment. But it does not have experience in social dimension, except in the case of the Scheduled Castes and Tribes. So it came up with a figure of 36 per cent. Five years later, the same NSSO has found them to be 42 per cent. Now, both 36 and 42 are much more than 27 per cent. Whether whatever the NSSO said is right or wrong and whatever Mandal said is right or wrong, how does it affect 27 per cent reservation? This has been pointed out by the Supreme Court in the Indra Sawhney judgment.

Do you think a caste census is required?

For reservation, it is not required. It may turn out that the Mandal figure is an underestimate. Even if a caste census is taken, the last laugh may not be that of anti-reservationists. The Chairman of the Mandal Commission, Bindhyeshwari Prasad Mandal, wrote three D.O. letters to three Home Ministers, one after the other, because there were three successive governments in quick succession until 1980: H.M. Patel of Janata government, Charan Singh in the caretaker government headed by him, and Zail Singh in the Indira Gandhi government, requesting an up-to-date census with a caste dimension. Before Mandal, many commissions had bemoaned the absence of caste census because of the Government of India's policy after Independence to discontinue the British policy. Right or wrong, you cannot blame the backward classes for this decision, and deny them their reservation. Caste census is required to plan how development should proceed, where we should concentrate, etc.