Logical step

The socio-historical and constitutional perspective and imperatives of the proposed Bill.

WHEN an issue like reservation for Scheduled Castes (SC) and Scheduled Tribes (ST) and/or Socially and Educationally Backward Classes (SEdBC) (also interchangeably and synonymously Other Backward Classes/Backward Classes) comes up, there has to be an attitudinal self-preparation if one has to contribute effectively to the discussions and search for solutions. One of the most harmful effects of the caste system is that the caste category of origin generally predetermines the responses and reactions of individuals and thus limits and narrows the objective cerebral process.

Monstuart Elphinstone, the legendary British administrator, recognised in the mid-19th century that "the missionaries find in the lowest caste the best pupils" but his liberalism wilted before the pragmatic realisation of what the upper caste reaction would be when people of the "despised castes" are selected for government jobs on the basis of merit acquired through their new educational attainments. The Board of Education of Bombay Presidency in its Report for 1850-51 was confident that if the doors of education were opened to "the despised castes - the Dheds, Mhars, etc.", they would turn into "men of superior intelligence to any in the community; and with such qualifications, as they would then possess, there would be nothing to prevent" them from rising "to the highest offices open to native talent - to Judgeships, the Grand Jury, Her Majesty's Commission of the Peace". But they allowed themselves to be guided by Elphinstone's pragmatism and caution.

When at last the British Victorian government took toddler steps to extend elementary education in a small way to the children of untouchables, there was violence, physical obstruction and waylaying of the children. The Indian Education (Hunter) Commission of 1882 has given instances of this from Malabar (then in Madras Presidency, now in Kerala), Central Provinces (now Madhya Pradesh, Maharashtra and Chhattisgarh), Bombay Presidency (Maharashtra, Gujarat, Karnataka) and so on. The administration was in collusion with the perpetrators of this violence as it was manned entirely by persons from one or a few communities holding a monopoly over jobs and education and did not want the lower castes to get educated and break into their monopoly. Thus a single caste or a few castes, accounting for 3 per cent to about 20 per cent of the population of different regions, managed to hold their monopoly or near-monopoly on government jobs and education, especially English school education, using caste solidarity as the instrument for appropriation and caste as the instrument for exclusion of others.

It was in these circumstances that people of all castes/communities that had no/little share in governance/administration and no entry or only limited access to education, especially English school education, were left with no alternative but to seek and demand reservation. Since caste was the instrument of deprivation/exclusion, it automatically became the instrument of mobilisation and reserved access. It was also the natural result of the unnatural but long and deeply entrenched institution of the caste system. What we are seeing today is the continuation of this process. It has developed from the movements of BCs and other non-Brahmin castes, including SCs, in the 19th and early 20th centuries, which compelled many provincial/State governments to bring about job reservation and other programmes of development and welfare, to the ones after Independence, which impelled the Government of India to take its own steps towards this end.

To put matters in perspective, State intervention for the development and welfare of BCs and SCs followed popular movements and community efforts for self-improvement and community movements for assertion of human dignity and socio-economic rights. The community efforts included movements to acquire access to modern education, which was perceived as the only vehicle for upward mobility, through agitations for admission of their children to educational institutions of the government. In the case of the limited number of communities that had the economic capability, the effort was to access education through private educational institutions set up by themselves. This avenue, however, was not available to most of the communities of the BCs and SCs for want of economic capability.

The process of reservation in education began in 1902 in the small princely state of Kolhapur, for Backward Classes - covering the present BCs, SCs and other non-Brahmin castes that are not in the post-Constitution lists of BCs. The much larger princely State of Mysore introduced it next on the basis of the Report (1921) of the Miller Committee appointed in 1918 (the first committee/commission on BCs appointed in India) for Backward Classes - covering the present BC, SC and most of the non-Brahmin castes, many of which are not in the post-L.G. Havanur Commission BC lists. Immediately thereafter, in 1921 itself, the sprawling Madras Presidency introduced reservation for BCs, including SCs and most non-Brahmin castes, many of which are not in the present list of BCs. The large Bombay Presidency initiated the process in 1931 following the Report of the Starte Committee for Depressed Classes and some BCs such as Nomadic Communities, and the princely State of Travancore did so in 1935 for BCs - the present SCs and BCs.

Job reservation orders either included or were accompanied by parallel orders of reservation in education. For a variety of sociological reasons, these orders were accepted by upper-caste society gracefully. In fact, in Travancore a number of upper-caste leaders of stature and repute cooperated whole-heartedly with the whole process of social reform meant to ameliorate the conditions of SCs and BCs, including the reservation policy.

At the national level, Dr. B.R. Ambedkar's strenuous exertions and logical and information-packed pleadings within the country and in the fora of the British government, which led to the enactment of the Constitution of India of 1935 (Government of India Act, 1935) and the Yervada or Poona Pact of 1932, culminated in the provision of reservation of seats for SCs in the Central and State legislatures.

The Yervada Pact was a solemn agreement, which emerged from negotiations between Mahatma Gandhi and Ambedkar at the Yervada Jail where Gandhiji was incarcerated and on fast against the British government's Macdonald Award granting separate electorate status to SCs. Most Congress leaders out of prison participated and helped in the negotiations. The names of the signatories read like a Who's Who of the national movement and includes some leaders of civil society and industry. Jawaharlal Nehru, who was in the Nainital Prison, signalled his support.

In order to save Gandhiji's life, Ambedkar reluctantly gave up the valuable advantage of a separate electorate for SCs (already firmly in his kitty), as Gandhiji and other leaders felt it was harmful for Indian society and nation, in exchange for the commitment of Gandhiji himself and the entire national movement to not only reservation of seats in the Central legislature and provincial legislatures, but also fair representation for them in public services and elected local bodies (fulfilled in 1993), and educational facilities for SCs.

All this makes clear that reservation for SCs, STs and BCs is not rooted in the electoral ambitions of passing politicians but evolved as a natural outcome of BC and SC movements for their rights to education, share in governance and broad egalitarian social reform and of the healthy response to them from the government and some reformist and realistic maharajas.

The Constitution of India, 1950, was born of the same spirit of egalitarian social reform and of laying a sound base for enduring national integration as evidenced by the Preamble and its specific contents. It contained sound and far-reaching provisions for SCs and STs, including, but not only, reservation. Reservation for SCs and STs in jobs and education at the Central level and in the States continued from Day One. It also contained provisions for SEdBCs, including particularly Article 340(1), Article 15(4) and Article 338(3) [since re-numbered 338(10)], but reservation for SEdBCs at the national level was not commenced until much later.

An impression is sought to be created by some learned commentators that the SEdBC/OBC/BC groups are not a legitimate constitutional category for reservation or that reservation for them is an after-thought owing its origin entirely to the electoral and personal ambitions of one or the other politician. Neither the history of reservation from the beginning of the 20th century nor the specific provisions of the Constitution justify these abominable suggestions.

The composition of the Constituent Assembly, in which there were very few representatives of SCs, STs and SedBCs, and the stature of its leading figures preclude scope for any insinuations about their motive for introducing these provisions. Doubts should be set at rest by the circumstances in which clause 4 of Article 15 was inserted in 1951 after the Supreme Court set aside the "Communal G. O." of the Government of Madras, coming down from pre-Constitution, pre-Independence days, providing reservation by "communal rotation" in educational institutions, in two cases known as the Champakam Dorairajan and Venkataramana cases.

The Government of India and the Union Parliament under the leadership of Nehru and the guidance of Ambedkar responded promptly with the Constitution (First Amendment) Act, 1951, inserting clause 4 of Article 15, which gave a constitutional base for any special provision for the advancement of any Socially and Educationally Backward Classes of citizens or SC and ST. It is in terms of this clause that most States have issued orders of reservation in education, including medical and engineering colleges and other professional institutions of the State government. Neither Nehru nor Ambedkar can be accused of bringing about this amendment out of electoral considerations.

Gradually, after the Constitution of India, 1950, some States north of the Vindhyas, such as Punjab (including the present Haryana), Bihar, Gujarat and Madhya Pradesh, introduced reservation for SEdBC/OBC/BC categories, but other State governments and the Centre itself stayed out. Most of these orders were challenged in High Courts and the Supreme Court and, after some initial adverse orders and correction of process and listing of SEdBCs by State governments, they were all upheld by the Supreme Court from 1968 onwards. These Supreme Court orders upheld the action of State governments in taking castes as units of identification and as units for measurement of social backwardness.

Unfortunately, the Union government, instead of giving the lead and laying down an integrated national framework (allowing for local variations) of identifying and listing SEdBCs, and evolving a policy for SEdBCs in accordance with Article 340(1), Article 15(4), Article 338(10) and Article 46, abdicated that responsibility. This was in violation of the mandate and letter and spirit of the Constitution, and in spite of the recommendations of the Backward Classes (Kaka Kalelkar) Commission (which the Chairman was admonished into repudiating), 1955, (set up in 1953) and the Report of the Second Backward Classes (Mandal) Commission, 1980 (set up in 1979). Every delaying tactic and subterfuge was resorted to for continuing to evade the constitutional mandate until the Gordian knot was cut in 1990.

The Mandal judgment of the Supreme Court in 1992 upheld the order of the Government of India of 1990, with the stipulation that socially advanced persons and sections (SAPS), or the so-called "creamy layer" of castes identified as BC, should be excluded. It also held that caste is a class - not in the Marxist sense of the term but in the sociological sense - and in fact, castes constitute the most important social classes of India, and that it is constitutional to examine which of them are backward in terms of the criteria of backwardness followed and to designate Backward Classes in terms of castes.

The Mandal judgment also held that, for purposes of inclusion in lists of SEdBCs, economic backwardness/poverty is relevant only if and when it arises from social backwardness, and that economic backwardness per se is not a criterion for identification of a class as backward in accordance with the Constitution. In view of this definitive judgment, it is futile and ignorant to argue that Backward Classes should be identified only on the basis of economic criteria or individual poverty. That is not the constitutional scheme. In fact the Supreme Court struck down the clause added by the Congress government in 1991 to the National Front government's order of 1990 providing 10 per cent reservation for the "economically poor".

The Mandal Commission contained many recommendations in addition to job reservation. It also recommended reservation of seats in educational institutions (apart from recommendations on land reforms, land distribution, tenurial reforms, cottage and small industries, training, economic development, rural development and so on). Reservation of seats in educational institutions had already been implemented long back in the peninsular States, and subsequently by some other States, but not by the Centre.

Logically this ought to have happened in 1990 itself. But in the circumstances prevailing then, the first step of job reservation that was taken then required all the courage and determination that could be mustered. But it could have been introduced after the initial shock was absorbed by the National Front government and soon after the constitutional position was clarified by the Mandal judgment. There was no need to wait for the 93rd constitutional amendment and the new clause 5 of Article 15. Clause (4) in existence since 1951 was and is enough, as the present proposal, spoken of, is only for reservation for SEdBCs in Central public sector educational institutions, including the Indian Institutes of Technology and the Indian Institutes of Management. Clause 5 is required only for the introduction of reservation in private educational institutions in view of the Supreme Court's judgment in the P.A. Inamdar case.

Thus, what is now proposed to be done is at the least 12 years late. Nobody should have been taken by surprise, for after the Mandal judgment this was bound to come sooner or later. It is not really a bolt from the blue. All along, the National Commission for BCs, national and State conferences of BCs, and Members of Parliament have been calling for this.

The basic premise is that reservation of jobs without reservation in education is illogical, for the latter is necessary to prepare the ground for the former. Not providing for reservation in any sector/part of education is an admission that the Government of India does not intend to ensure fulfilment of reservation in jobs in the sector of employment related to the sector of education in which reservation is not provided. There should be no mismatch between the percentages of reservation of jobs and reservation in education.

There is an argument that shows its head whenever there is a proposal to give reservation to SEdBC (and SC and ST). This is that what these communities require is not reservation in higher education but good education from the earliest stages. The argument makes it appear as though the SC, ST and SEdBC categories have no interest in pursuing good education. But the fact of the matter is that these communities are as conscious of the need for and thirsty for good education as any other community. But it is beyond their reach on account of the role most of them are cast in by their birth.

As pointed out by the National Commission to Review the Working of the Constitution, reservation was never envisaged as a cure-all but as part of a large package. The rest of the package did not come at all or came in a truncated manner. Reservation has been reasonably successful to the extent possible with this handicap. Fifteen per cent reservation for SCs, who form 16.2 per cent of the population, and 7.5 per cent reservation for STs, who form 8.2 per cent of the population, have been in existence for many decades. The newly proposed 27 per cent reservation is for SEdBCs, who were estimated by the Mandal Commission to be 52 per cent of the population. This group includes identified backward castes of religious minorities.

It is to be seen who will lose because of this new quota. In the absence of clear quantification, it may not be wrong to surmise that only a few hundreds would suffer. Discourse, instead of ranging over the entire gamut of issues (some of which are based on wrong arguments and some already settled by the Supreme Court), should focus on this specific small number.

And once that is done, evolving a practical formula that will eliminate or minimise their problem would not be too difficult. To do that, however, there is need for focussed consultation eschewing the "us-them" attitude and instead adopting the "us-us" attitude.

This should also go with the understanding that reservation based on caste has been motivated by socio-historical reasons and that it will stay until society reaches a state of equilibrium, especially in the matter of educational and life opportunities irrespective of birth. When that happens, castes will wither away. If this process is blocked, caste antagonism will only flare up. Change is inevitable and essential, and can and should be facilitated harmoniously.

P.S. Krishnan is a former Secretary to the Government of India and former Member Secretary of the National Commission for Backward Classes.