A rational solution

P.S. Krishnan: "I do not think there will be any unreasonable reaction if the exercise of categorisation is undertaken on an objective and socio-scientific basis."-V.V. KRISHNAN

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

THE Gujjar agitation in Rajasthan demanding the listing of Gujjars, a Backward Class in the State, as a Scheduled Tribe has raised larger issues involving equality within the Backward Classes. How have these issues been addressed by the Centre and various State governments? Frontline met P.S. Krishnan, retired Secretary to the Government of India and an expert in the area of social justice, to seek his view on how best the governments could tackle the simmering discontent within the Backward Classes.

To start with, how would you explain the rationale of sub-categorisation of the Backward Class lists? And, who has greater responsibility in this regard the Centre or the State governments?

A community that is fairly large numerically will be able to express its feelings in the shape of protests. Communities that do not have numbers nurse their resentment silently. But it adds to the sum total of the discontent in the country. This is a reality that must be faced and it has been sought to be tackled by some State governments ab initio. These are the State governments of Kerala, Andhra Pradesh and Karnataka. They were the most sensitive in this regard right from the beginning. In Karnataka, the Nagan Gowda Committee [1960] specifically mentioned that it was aware that among the backward communities, some were more backward than others. If all these were grouped together, the more backward communities would be adversely affected. The committee came to the conclusion that the list of B.Cs should be divided into backward and more backward communities. This was the first post-Independence committee in Karnataka and it recommended sub-categorisation of the B.Cs to ensure equality among the backward classes. Karnataka now has five sub-categories within its B.C. list. Andhra Pradesh and Kerala have five and six sub-categories, respectively, within their B.C. lists.

Which States have not resorted to sub-categorisation of OBCs and why?

Rajasthan, Punjab, Madhya Pradesh, Uttar Pradaesh, Orissa, and the entire northern belt, with the exception of Bihar, are yet to try sub-categorisation of the B.C. lists. Virtually all the non-peninsular States and the Centre have undifferentiated B.C. lists. Even the recognition of Backward Classes was belated in the non-peninsular States and at the Centre. If even the awareness of the existence of Backward Classes was so slow to come the Government of India was ready to recognise them only in 1990 and a number of non-peninsular States and Union Territories did so only after the Mandal case judgment in 1992 then it is not surprising that the recognition of the subtler aspects of backward class reservation is taking time. So, it was natural that these States and the Centre did not address the important issue of sub-categorisation of B.C. lists all these years.

Although many of the northern States and the Centre did not opt for sub-categorisation of the B.C. lists, there has been no Gujjar-like agitation in other States. The Gujjars, too, are agitating not for sub-categorisation of the B.C. list in Rajasthan, but for inclusion in the S.T. list. How do you explain this?

There have been agitations elsewhere, too, for instance, in Tamil Nadu. Until the late 1980s, there was an undifferentiated B.C. list in Tamil Nadu. The powerful agitation by Vanniars in Tamil Nadu on the plea that they were not getting their due share of reservation led to the bifurcation of the B.C. category in the State B.Cs and Most Backward Classes [MBC]with 30 per cent and 20 per cent share in the reservation, respectively. Vanniars were included in the MBC category.

Soon after, Andhra Pradesh introduced the sub-category of Backward Classes of Muslims with 4 per cent reservation within the 29 per cent reservation for B.Cs. Tamil Nadu, too, introduced two other sub-categtories, the Backward Classes of Muslims and the Backward Classes of Christians, and gave them 3.5 per cent reservation each within the overall OBC reservation of 50 per cent. These two State governments have wisely responded to the legitimate grievances of certain B.Cs.

In Bihar, right from the beginning, Chief Minister Karpoori Thakur introduced the binary list of B.Cs, in terms of Annexure A and Annexure B. Even though the situations in Tamil Nadu and Bihar are better, the sub-categorisation is not adequate. If there are more sub-categories, the government will be able to cater better to different strata of backwardness.

This issue came up before the Mandal Commission. One of the members, the late L.R. Naik, proposed that the list of Backward Classes recommended by the commission should be in two parts one, backward classes and the other, depressed backward classes. The Chairman and the other members, while appreciating Naiks feelings, and without disagreeing with him, said that the Supreme Court judgment in the Balaji case [Balaji vs State of Mysore, 1963] prohibited such classification. Naik consulted me and showed me his draft minutes of dissent, including his list of depressed backward classes. I helped him polish it. I was aware of his dissent, even before it became part of the report. What he said was largely correct.

In the Balaji case, the Supreme Court was perhaps under the impression that the sub-categorisation recommended by Nagan Gowda was a subterfuge to include as backward some communities that were not really so, and so disapproved of such categorisation. The Supreme Court judgment in the Indra Sawhney case [1992] clarified that it was not unconstitutional to sub-categorise B.Cs on the basis of different levels and degrees of backwardness. But the Centre and most of non-peninsular States have not realised the significance of this clarification and the reversal of the Balaji ruling.

The Government of India appointed an expert committee, in which I was a member, to recommend the criteria to identify the socially advanced persons among the SEBCs [Socially and Economically Backward Classes] to exclude them from B.C. reservation in 1993, as directed by the Supreme Court in the Indra Sawhney judgment, and thereby to facilitate the commencement of the long-delayed B.C. reservation. We were given 15 days to complete this task, and this was done in time.

The second task given to the committee was to advise the Government of India on sub-categorisation in the light of the Mandal case judgment. We started working on this in order to recommend how it should be done. But then we got a communication from the Ministry of Welfare that we need not do that work. In addition to this, we had a third task, that is, to prepare a common list or Central List of Backward Classes, based on the lists recommended by the Mandal Commission and those already in existence in some States. Thus, even though the Government of India was aware of the need for sub-categorisation of the OBC list, unfortunately this could not be proceeded with.

The fact that an upheaval has not taken place in the past does not mean it will not take place in the future. Some small communities that are not able to get their due share from the B.C. reservation cannot carry out an agitation. But their silent resentment adds to the sum total of discontent and it is harmful to society and its economic growth. Where large communities are affected, and are unable to get their due share, they can start an agitation. My advice to the Central and State governments is, dont wait for agitations and then mount fire-fighting operations, but understand where the fissures are, fissures that can result in explosions in some places and breed silent grievances in some others. They should use the instrument of categorisation proactively, effectively and fully.

Is sub-categorisation the only way out?

It is the rational way. State governments can do this sub-listing on the basis of the recommendations of a body that is totally unconcerned with electoral consequences and is concerned only with social facts and social justice. In Uttar Pradesh, when Rajnath Singh was the Chief Minister, he introduced sub-categorisation in terms of Backward and More Backward Classes. This was given up by Mayawatis government. That sub-listing was correct in principle but was vitiated by one serious, and apparently deliberate, misdirection. The State government included Jats in the list of More Backward Classes. Categorisation should be done and should be seen to be done objectively and socio-scientifically. Much of the rest of the aborted effort of categorisation in Uttar Pradesh was basically sound.

It is pointed out that if the Rajasthan government sub-categorised its B.C. list, categorising Gujjars as most backward and granting them a fixed percentage of reservations, it could antagonise the Jats.

I do not think there will be any unreasonable reaction if the exercise of categorisation is undertaken on an objective and socio-scientific basis and if every category of Backward Classes gets its due share of the total B.C. reservation in Rajasthan. If still there is a reaction, it should be faced. That is no ground for not trying an experiment that has shown results elsewhere. In Maharashtra, the Halaba Koshti community agitated for inclusion in the S.T. list.

The State government met this effectively and wisely by putting it in a new category, Special Backward Classes, with entitlement to 2 per cent reservation within the OBC quota. There has been no further agitation by that community, and apparently it was satisfied with this remedy as it was exposed to competition with some other communities at the same level of backwardness. The Maharashtra government wisely used this opportunity to create a separate category of denotified tribes and three categories of nomadic tribes, in addition to the Special Backward category, and also Other Backward Classes, all of which, even if not specified so, come under the rubric of the Socially and Educationally Backward Classes [SEBCs] specified in the Constitution under Article 340.

Is the Rajasthan governments suggestion that there can be a separate quota for nomadic communities that could include Gujjars, untenable?

Nomadic communities can be given a quota as part of the rubric of SEBCs. But you must identify nomadic communities scientifically. Even without being a nomadic community, a B.C. is entitled to sub-categorisation, based on relative capacity to benefit from reservation. The Rajasthan governments suggestion, therefore, appears to be an effort to get over the immediate problem. Rajasthan has a very shallow experience in the listing of backward classes.

The Union Law Ministry has, in its opinion on the Rajasthan governments suggestion for a separate quota for nomadic communities (a copy of this opinion is available with Frontline), pointed out that the State government has the power to legislate to provide for such quota, outside the ambit of S.C./S.T./B.C. reservation.

The Supreme Court, in its judgment in the Indra Sawhney case, which has been cited by the Union Law Ministry in its opinion to sustain its stand, has held that Article 16(4) is exhaustive of reservation for Backward Classes. A nomadic community is also a backward class. Therefore, I disagree with the opinion that reservation for a nomadic community could be provided under Article 16(1) by the State government. Article 16(1) will not provide the shelter for a Backward Class to secure reservation.

The Mandal judgment [Indra Sawhney] is very clear that Article16(4) is exhaustive of reservation for Backward Classes. Nomadic communities/tribes and Vimukata Jatis/tribes are also part of the concept of SEBCs. The Supreme Courts reference to Article16 (4) as not exhaustive of the concept of reservation only permits reservation under Article 16(1) for those who cannot come under the categories of S.C., S.T. or B.C. The Supreme Court has distinguished this type of reservation as horizontal while reservation for S.C., S.T. and B.C. is described as vertical. It is only for the latter that the Supreme Courts ceiling of 50 per cent applies.

Maharashtra, Andhra Pradesh and Karnataka have a separate category of reservation for nomadic/denotified communities within the OBC quota. Categorisation is a time-tested method that has shown good results in certain States. Seeking remedies such as categorisation is permissible within the rubric of SEBCs, and judicially sustainable.

My advice to the Central government and the State governments is to cooperatively undertake the important and delicate task of categorisation of SEBCs in State Lists as well as the Central List. This should be done objectively and socio-scientifically. The approach of fire-fighting and mutual recriminations are inappropriate to the magnitude and seriousness of this national task.