How long the inequalities?

Interview with P.S. Krishnan, Honorary Adviser to Human Resource Development Minister Arjun Singh.

IN a sense, the brain behind the Union of Indias success in securing the unanimous approval of the Supreme Courts Five-Judge Constitution Bench for its policy of reserving 27 per cent seats for Other Backward Classes (OBCs) in Central educational institutions is P.S. Krishnan, a former Secretary to the Government of India and former Member-Secretary of the National Commission for Backward Classes (NCBC). More important, Krishnan is an adviser to Human Resource Development Minister Arjun Singh in this landmark litigation before the Supreme Court.

As a civil servant, Krishnan drafted the Office Memorandum fixing 27 per cent reservation for OBCs in Central services in 1990, which was upheld by the Supreme Court in 1992 in the Indra Sawhney I (Mandal I) case. He was also a member of the committee that recommended the criteria to identify socially advanced persons (creamy layer) among the Socially and Educationally Backward Classes (SEBCs) in 1993.

The recommendation was subsequently adopted by the government. Having successfully assisted the then government in the Mandal I case in 1992, (in which the Supreme Court upheld the Office Memorandum of the government fixing 27 per cent posts in the Central services for OBCs), Krishnan made his services available to the present government in the Mandal II case (Ashoka Kumar Thakur and others v. Union of India and others) on the sole condition that he would not receive any remuneration for this contribution.

Solicitor-General G.E.Vahanvati, towards the end of his submissions to the Bench when the case was being heard last year, made a special mention of Krishnans presence in the court and acknowledged his contribution to the strengthening of the governments case. Krishnan not only observed every moment of the courts hearing in this case for nearly two months, but was of immense assistance to counsel representing the respondents in challenging the petitioners contentions. In this interview, he answers questions on the implications of this landmark judgment.

What, according to you, has India achieved from this landmark judgment?

The most significant aspect of this judgment is that for the first time after nearly six decades, the SEBCs have been allowed a reservation quota in Central educational institutions. Such a provision was available in some States even earlier.

At the Central level, where a number of important institutions of excellence open up doors for upward mobility these include the IIMs and the IITs this is the first time that Backward Classes would be getting entry through quota.

It furthers the constitutional scheme of equality, including social equality. It has never been the case that reservation is the only instrument of equality. Reservation is only part of a much larger package that includes land reforms, land distribution, land development, quality education at different levels, including primary and school education, and better living and working conditions.

An important challenge before the Constitution Bench was to decide how long reservation could be continued. Although the Bench said that the Central Educational Institutions (Reservation in Admissions) Act, 2006, is not illegal merely because it has not prescribed any time-limit for reservation, almost all members of the Bench expressed concern that it has continued for so long.

Those who ask the question How long reservation? should instead ask the question How long the inequalities? Caste has been in India long before reservation started. Quota came because caste was there. Because of the working of democracy, when caste is beginning to help others, it is seen as bad by those who tolerated it all along and whom it suited all these years. The Mandal I judgment pointed out how parents of NRIs [non-resident Indians], or the NRIs themselves, when they want brides for their sons, they come to India and search in their own castes.

The Chief Justice says in his judgment that there shall be a review of the SEBC lists once in 10 years. But in the summary read out by him on April 10, he subscribes to the direction of Justice Arijit Pasayat that it shall be once in every five years.

What he seems to have done is this: he has taken a view of some of the Judges in the light of which he might have felt that five years is the majority view. Justice Bhandari is silent. Since Justice Raveendran and the CJI [Chief Justice of India] were in favour of a review every 10 years, the Chief Justice probably thought this was less controversial, and five was included in place of 10. Ultimately, we have to consult the lawyers, whether it is five years or 10 years. I dont know whether the summary is signed by all the five Judges or not. I did not find any commonly signed document. Mandal I judgment says review has to be once in 10 years. The National Commission for Backward Classes Act also says the review/revision has to be once in 10 years.

Does it mean this five-Judge Bench could not have overruled the Mandal I judgment, which was delivered by nine Judges?

Quite possible. Ultimately, that is a matter on which we have to consult the lawyers and ask them whether the review is expected to be done once in five years or 10 years. But the major issue is starting the OBC reservation.

In Paragraph 138 of his judgment, Justice Pasayat says there has to be a periodic review of the classes which can be covered by the statute. The periodicity, he says, should be five years. Does it mean the Act will become illegal if there is no review after five years?

He does not say that in so many words. A review has to be done. That is it.

One of the grounds of objection by the petitioners was that the review was not done properly by the government even 10 years after it notified the SEBC lists for the purpose of filling of government posts reserved for the OBCs in 1993.

The Mandal I judgment directed the establishment of a commission or tribunal at the national level and at the State levels to hear requests for inclusion and complaints of under-inclusion or over-inclusion. So the complaints of over-inclusion would include complaints of inclusion of undeserving communities in the lists of Backward Classes. What prevented the petitioners from lodging complaints of over-inclusion? But they have not done so.

Justice Pasayat says in paragraph 139 (5) of his judgment that the NCBC has to work more effectively and not merely decide applications for inclusion and exclusion of castes.

The NCBC was created by the law enacted in 1993, pursuant to the Mandal I judgment. As a statutory commission, if it goes beyond what the Act creating it has envisaged, it may be open to attack as having acted without jurisdiction. Therefore, the Act has to be amended in such a way as to specify what the NCBC should do beyond identification of Backward Classes, in terms of inclusion and exclusion. Identification has already been done by the Mandal Commission. And out of the castes thus identified, the Government of India has picked all those that are common to both the lists [one prepared by the Mandal Commission, and another by the States].

How did the government explain its failure to revise the SEBC lists 10 years after its notification?

The government said it had reviewed the lists. It consulted the NCBC as per the 1993 Act. The NCBC told the government that it would not advise any exclusion at that stage. The NCBC also told the government that it did not have the required staff to do an independent survey. They did have a conference on the question of the revision of the SEBC lists in 2003 in which all the State governments and State Commissions for Backward Classes were represented. Everybody was very clear that there was no question of artisan castes or the labour[er] castes having made the grade. All the State Commissions that took part in this conference expressed the view that the situation was not ripe for the exclusion of any of the castes from the lists. Chairpersons of some of the State Commissions were former judges and senior civil servants.

A community that is backward remains backward as a result of the operation of centuries of social processes, which also include economic processes mediated through the caste system. Social structure does not mean the organisation of society in terms of caste. It also means the economic system of production, agriculture, trade, moneylending, administration: all these things are subsumed in the social structure in terms of apportionment of work, profit and labour. These are disadvantageous to many castes and advantageous to some. This does not mean every member of that advantageous caste will have that advantage. Those who are advantageously placed belong to those castes. In such a situation, when it has taken hundreds of years to arrive at the present social structure, can change be brought about in five, 10 or 20 years? But it is quite possible that certain castes were, perhaps, on the margin, and they could have jumped.

It is also possible that some castes, even if they were not originally backward, might have come in under the States lists or Mandal List or under the Common List. I have myself identified certain communities, and said that this situation can be rectified only when there are some complaints against it, or when a revision takes place. A really Backward Class, which is not on the margin between backwardness and forwardness, cannot within a short period cease to be backward.

The operational part now is that the government must, whether it is five or 10 years, undertake a revision.

Again, if the Centre consults the NCBC, and if the NCBC takes the opinion of the States, the States are bound to say that there is no case for revision of the lists.

It is quite possible that with the direction of the Supreme Court, and the observations by it, the State governments will want to give it a very serious look.

Is it proper to give the veto power on the revision of lists to the State governments and State Commissions, as happened at the time when a revision was due in 2003?

It is not veto. It is consultations. The Mandal I judgment says, and we also know, that a State government is closer to the field realities than the Central government. So, the views of the State governments have to be given weight. If any of the writ petitioners in the Mandal II case are serious about any communities being not really backward, then it is their duty to make applications and move the National Commission in respect of the Central List, and move the respective State Lists in respect of the State Lists. They need not wait for five or 10 years. They can do it tomorrow.

Justice Pasayat has observed in Paragraph 44 that the fact that there has been no exclusion raises a doubt about the concern to remove inequality. In Paragraph 43, he asks, is it that backwardness has increased instead of decreasing? If the answer is yes, as contended by the respondents, then one is bound to raise eyebrows as to the effectiveness of providing reservation or quotas, he has said in his judgment.

Which are the Backward Classes in the list? The largest may be the artisan castes. Artisan castes mean blacksmiths.

The merits of individual castes, I understand. But the question is why not even one has been excluded from the list? Do all the castes in the list continue to be backward?

It is because there has not been even one application for exclusion. It leads to the conclusion that there is probably no caste fit for exclusion. There are two ways of testing this. One is to wait for five or 10 years and see what the government does. The other is if anyone honestly feels that even one community is undeservedly in the list, they can immediately move the concerned Commission [National or State] and the Commission is bound statutorily to examine the complaint.

Why should the Commission or the government wait for complaints to come to it instead of going in for a revision on its own and examining the case of every caste in the list through a survey?

There is no objection to it. But should we conduct a huge survey just because there is one rat in the palace? There is no doubt that most of the communities continue to be backward. I can straightaway say that no artisan community has ceased to be backward in the country. No service communities, such as barbers, dhobis, and so on, have ceased to be backward. No community of primary producers, or non-agriculturalists such as fisherfolk, has ceased to be backward. No indigent community, no beggar community, no nomadic or semi-nomadic community has made the grade. It is not easy for them to make the grade. It requires many more measures. Reservation is not the cure-all. It is only one item, as the Chief Justice has very clearly explained. It is one of the large social justice packages.

Those who filed the writ petitions have sufficient financial capacity to engage some of the top lawyers in the Supreme Court. They must also have the capacity to commission the study of one or two suspect communities by a credible social science organisation. What prevents them?

I am not speaking as a government representative. I retired 20 years ago. I am assisting the government only on certain principles. Therefore, I have no difficulty in saying that it is the duty of the government to do a very careful review. In some cases, you may require data that are already available. In some doubtful cases, a survey may be required. That has to be decided by the agency which is doing that. When Muslims of Kerala applied to the NCBC, we thought it necessary I was the Member-Secretary at that time to commission a survey by an independent organisation to consider the claim of various Muslim communities for inclusion in the list of Backward Classes. In the case of Muslims of Karnataka, we thought a survey was not required because there were already some reports available. It depends on the facts and circumstances of each case. The idea is to do it fast. We should not waste our time on surveys when they are not required. The discretion to conduct a survey in a case must rest with the government or with the NCBC, which it consults.

In paragraph 39(5), Justice Pasayat says that while determining backwardness, graduation shall be the standard yardstick for measuring backwardness. Justice Bhandari says in paragraph 273 of his judgment that once a candidate graduates from a university, he shall no longer enjoy the benefits of reservation as he is deemed educationally forward. He has clearly said that such a candidate is ineligible for special benefits under Article 15(5) of the Constitution for postgraduate and any further studies thereafter.

One of the lawyers for the writ petitioners [P.P. Rao] said that Class 10 or Class 12 should be treated as cut-off point for deciding social backwardness. He said that any caste in which more than 50 per cent are matriculates should not be treated as socially backward. The Chief Justice rejected that contention. Justices Pasayat and Thakker said that if we consider the ground realities, the appropriate benchmark cannot be matriculation; it has to be, at the least, graduation. P.P. Rao did not mean individual matriculates must become ineligible to avail OBC quota. He spoke about matriculation being a factor only to identify Backward Classes. The NCBC already uses graduation as a guideline in its questionnaire to determine backwardness of a class. It is only Justice Bhandari who says that once a candidate becomes a graduate, he or she becomes ineligible to avail himself or herself of the benefits under Article 15(5).

Will the government relax the criteria to identify the socially advanced persons [creamy layer] among the SEBCs? The Chief Justice, in paragraph 154 of his judgment, says the government can make a relaxation to some extent so that a sufficient number of candidates may be available for the purpose of filling up the 27 per cent reserved seats.

At present, the wise thing for the government to do would be to follow the criterion that was laid down in 1993, in the context of reservations in government posts, and use it for this also. There cannot be any dispute about that criterion. The correct thing would be to respectfully follow what the Supreme Court has directed, and see where we have arrived. There is an anxiety among the Backward Classes that the imposition of the criteria to identify socially advanced persons among them would result in part of their entitlement for 27 per cent being transferred to the general category and thus lost to them. Whether it will really happen or not we will know only when the process of admission is completed. Let us see what is the outcome of what the Supreme Court has permitted. If we relax the criteria in a hurry, we may be justified but it may look as though we are not even trying honestly what the Supreme Court has basically permitted.

Justice Raveendran, in his judgment, has asked whether members belonging to OBCs who get selected in open competition on the basis of their merit should be counted against the 27 per cent quota reserved for OBCs under an enactment enabled by Article 15(5). Is it a valid plea?

Articles 15(1) and 16(1) are caste-neutral. Those who come on merit shall not be included in the reservation category. This is the constitutional principle, and it has been recognised in all the judgments of the Supreme Court and in the Office Memorandum of the Government, issued under Article 16(4).

Has the criteria to identify the socially advanced persons among the Backward Classes come in the way of securing adequate representation to the classes in the services?

It has not been a problem as far as filling up vacancies of All-India Central Services and Class I officers under Union Public Services Commission is concerned. But I dont know the position with regard to technical and professional posts. Filling up of posts is less difficult than filling seats in educational institutions such as the IIMs and IITs, where the cut-off point is the issue. Admission to an educational institution is costly, and it is going to be costlier and costlier. Recruitment to a government post is remunerative. The Chief Justice has acknowledged this concern, noting that OBCs will lose seats [if the socially advanced persons criterion is imposed on them], and other Judges have not contradicted him. The present income limit [Rs.2.5 lakh] was arrived at in 2004 when the government revised the criteria. A further revision, according to the price index, is long overdue. It cannot be the intention of the Court that the Backward Classes should be deprived of their share of 27 per cent.

Is reservation a strategy to use caste to remove caste barriers?

Yes, it is. Once people of all castes have the same opportunities in reality, and once people come into contact with one another, then the caste system will lose its relevance.

Justice Raveendran has asked the government to deliberate whether the reservation policy has achieved its objectives.

It is an advice. The reservation policy is not meant to solve all problems. The purpose of social justice measures, including reservation, has not been fully achieved. But some achievement is there. It is not sufficient because the total package of social justice has not been made available to these people in full measure. Take the latest Budget. Only a meagre amount has been allotted to the welfare of the S.Cs [Scheduled Castes], S.Ts [Scheduled Tribes] and the B.Cs [Backward Classes].