Caste-based reservation is here to stay thanks to opportunistic politics.
THE reservation issue is in the news from time to time, when events of more political and general import allow space for it. Resident doctors at the All India Institute of Medical Sciences, students at the Indian Institutes of Technology (IITs) and Gujjars in Rajasthan are some players who occasionally bring the issue to the front pages of newspapers. Politicians sometimes want to wish it away, sometimes court it with gusto. There seem to be clear divisions on this. While some vehemently and clearly oppose it, going to the extent of filing court cases and organising public demonstrations and bandhs, even losing their own lives, some others equally staunchly support it. More lives have been lost in support of reservation than against it. But the issue remains with us, as active and more volatile now than it was almost 60 years ago when it was written into the Constitution.
Over the years, most of what the Constitution provided for has been almost lost sight of. Participants from neither side take the trouble of going back to the basics or reading the fine print of innumerable Supreme Court and High Court judgments that discuss the validity of the constitutional provisions threadbare, albeit from a purely legal perspective. It therefore seems worthwhile to revisit the original constitutional provisions.
The first mention of the issue is under the Right to Equality. The original Constitution charged The State that it shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth. The First Amendment, in 1951, added Article 15(4) which said that Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Then comes Article 16 referring to Equality of opportunity in matters of public employment, which originally made a similar but subtly different provision under 16(4), as follows:
Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State (emphasis added throughout).
A full 45 years after the adoption of the Constitution, Article 16(4A) was added in 1995: Nothing in this article shall prevent the state from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the state in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the state, are not adequately represented in the services under the state.
Article 46 in the Directive Principles of State Policy says that The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Parts IX and IXA of the Constitution, added in 1992 under the 73rd Amendment, introduced panchayats and municipalities in the Constitution, and also made specific provisions for reservation of seats for the S.Cs and the S.Ts in panchayats and municipalities through Articles 243 (D) and (T).
Possibly the most important ones in this context are Articles 330 and 332, which provide for reservation of certain proportions of seats for the S.Cs and S.Ts in the House of the People (the Lok Sabha) and in the Legislative Assemblies of the States respectively. Significantly, Article 334 made a specific provision for abolition of this reservation on the expiration of a period of ten years from the commencement of this Constitution. This period was first extended to 20 years under the Eighth Amendment to the Constitution in 1960, and has since been extended periodically, the last extension being to sixty years by the 79th Amendment in 2000.
Then there is Article 335, which provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State and adds that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters or promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.
The provision for reservation for the Other Backward Classes (OBCs) in the Central services started on a national basis in 1993, with the implementation of the Mandal Commission Report, though it had been in existence in some States for quite some time, for example, in the four Southern States where it had existed in one form or the other even before Independence. While its actual implementation got a boost in 1993, the enabling provision existed in the original Constitution since 1950 in the form of Article 15(4) mentioned above, which referred to any socially and educationally backward classes of citizens.
The government, in the early years, seemed quite open-minded. Even after having made generous enabling provisions, it kept looking to assess the impact of the provisions. Among the earliest attempts was the constitution of the first Backward Classes Commission in January 1953, under the chairmanship of Kaka Kalelkar. This commission submitted its report on March 3, 1955, with five members recording notes of dissent, and three opposing linking caste with reservation. Even Kalelkar did not agree with caste being a basis for reservation, and said so in his letter while forwarding the report to the President:
National solidarity demands that in a democratic set-up the Government recognise only two ends the individual at one end and the nation as a whole at the other and that nothing should be encouraged to organise itself in between these two ends to the detriment of the freedom of the individual and solidarity of the nation. All communal and denominational organisations and groupings of lesser and narrower units have to be watched carefully so that they do not jeopardise the national solidarity and do not weaken the efforts of the nation to serve all the various elements in the body politic with equity (page iv, para 14).
He admitted of a painful realisation that came to him while finalising the report: The remedies we suggested were worse than the evil we were out to combat. He found that The special concessions and privileges accorded to the Hindu castes acted as a bait and a bribe inciting Muslim and Christian society to revert to caste and caste prejudices and the healthy social reforms effected by Islam and Christianity were being thus rendered null and void. Muslims came forward to prove that except for the four upper castes, namely, Sheikh, Syed, Moghul and Pathan, all the other Muslim castes were inferior and backward. The Indian Christians also were prepared to fall in the trap (page vi, para 20).
In exceptional candour, he admitted that it was only when the report was being finalised that he started thinking anew and found that backwardness could be tackled on a number of bases other than that of caste. This, according to him, only succeeded in raising the suspicion of the majority of the members of the commission that he was trying to torpedo the recommendations of the commission. His own view was: We must be able to help both Indian Christians and Muslims without their being driven to accept the fissiparous principle of caste. He then went on to make the incisive remark: Once we eschew the principle of caste, it will be possible to help the extremely poor and deserving from all communities (para 23).
The concluding remarks of Kalelkar are very instructive:
Two years of experience have convinced us of the dangers of the spread of casteism and have also led us to the conclusion that it would have been better if we could determine the criteria of backwardness on principles other than caste (page xiv, para 60) .
The Commission did not present a unanimous report, and the report was neither tabled in Parliament nor implemented. But in a Memorandum of Action Taken on the report, laid in Parliament, the government said:
It cannot be denied that the caste system is the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of the specified castes as backward may serve to maintain and even perpetuate the existing distinctions on the basis of caste. If the entire community, barring a few exceptions, has thus to be regarded as backward, the really needy would be swamped by the multitude and hardly receive any special attention or adequate assistance, nor would such dispensation fulfil the conditions laid down in Article 340 of the Constitution.
The Home Ministry, in a letter to all State governments on August 14, 1961, said: While the State governments have the discretion to choose their own criteria for defining backwardness, in the view of the Government of India it would be better to apply economic tests than to go by caste.
The next important observations were made by the Estimates Committee in its 48th report (for the financial year 1958-59):
While the Committee consider that it is desirable that preference be given to the less advanced among the Scheduled Castes and Scheduled Tribes in provision of all facilities, they would like to observe that the tendency on the part of some castes and tribes to get themselves listed as backward merely to get concessions is undesirable and must be discouraged. In this connection, the Committee would like to reproduce below an extract from the Report of the Commissioner for Scheduled Castes and Scheduled Tribes for 1956-57:
Backwardness has a tendency to perpetuate itself and those who are listed as backward try to remain as such, due to various concessions and benefits they derive, and thus backwardness becomes a vested interest.
The Commissioner (for Scheduled Castes) has suggested in his Report for 1957-58 that if the ultimate goal of classless and casteless society is to be attained, the list of Scheduled Castes and Scheduled Tribes and even of Other Backward Classes will have to be reduced from year to year and replaced in due course by a list based on the criteria of Income-cum-Merit(T)he Committee recommend that the weaker sections of society should be defined and criteria for special assistance laid down on the basis of economic status and educational and social backwardness.
Next was the Advisory Committee on the revision of lists of the S.Cs and the S.Ts, set up on June 1, 1965, under the chairmanship of B.N. Lokur, then Secretary, Ministry of Law. The Lokur Committee made some very insightful observations, some of which have been echoed in several Supreme Court judgments in recent years. One such is in para 13 of its report:
The pace of social change has quickened since Independence and educational and economic standards have improved; traditional social barriers have visibly crumbled, particularly in urban and industrialised areas. In spite of this obvious position, we have witnessed the extraordinary phenomenon, which had (also) been noticed earlier by other commissions, of castes and communities solemnly setting forth their desire to be considered backward and included in the Schedules for special treatment. In several States, we have come across a multitude of organisations of castes and tribes, a few even at the all-India level, whose main object is to secure or retain a place in the lists of Scheduled Castes and Scheduled Tribes. One Scheduled Caste political leader from a northern State said candidly that he would be prepared to forgo economic and other development benefits if special political rights are guaranteed, because once political rights are acquired, anything they desired would follow. The really backward communities, however, look forward to the reservations and other facilities for recruitment to the services, educational concessions and benefits of economic development schemes, and are not concerned with political privileges.
The above observation, made in 1965, seems to be even more valid today in 2008 than it might have been in 1965.
Prophetically, and possibly anticipating events such as the one that happened in Rajasthan with three communities Gujjars, Jats and Meenas (in alphabetical order) asking for inclusion in the lists of STs and OBCs, the Lokur Committee observed:
It has been in evidence for some time now that a lions share of the various benefits and concessions earmarked for the Scheduled Castes and Scheduled Tribes is appropriated by the numerically larger and politically well organised communities. The smaller and more backward communities have tended to get lost in the democratic process, though more deserving of special aid...
While we appreciate the necessity of providing special assistance for the uplift of the Scheduled Castes and Scheduled Tribes until they rise to the average stratum of society, we regret to note that the listing of these castes and tribes has more or less created vested interests and has tended to damp to some extent personal effort and enterprise to improve ones position and fortune. Inclusion in the lists is regarded more as a coveted prize than as a reflection of backwardness.(A large number of prominent people) whom we met in the course of our inquiry asserted that, in the interests of national integration and in view of the changes which have taken place during the last 15 years, the time has come to do away gradually with these privileged classes, particularly in view of the increasing demand for inclusion therein, and to organise development schemes without reference to castes and tribes.
The least that should be done, we are told, is to fix a time limit for the currency of the lists . In any case, the consensus of opinion expressed before us has been that the emphasis should be on the gradual elimination of the larger and more advanced communities from these lists, and on focussing greater attention on the really backward sections, preferably by applying an economic yardstick (paras 14, 15, pages 8-9).
Referring to a concept not usually heard these days, the Lokur Committee suggested: In view of the weighty views expressed above and in the interests of national integration, we feel that the time has come when the question of descheduling of relatively advanced communities should receive serious and urgent consideration (para 16, page 10).
The issue of reservation, particularly caste-based reservation, has come before the judiciary often and many High Court and Supreme Court judgments on various aspects are available.
Starting with M.R. Balaji and others vs the State of Mysore (AIR 1963, SC 649), and ending with Ashoka Kumar Thakur vs Union of India & Others, the judgment for which was announced on April 10 this year, the Supreme Court consistently held that:
- Categorisation of any class as backward solely on the basis of caste is not permitted by Article 15(4) of the Constitution although it is a relevant factor to be considered;
- The authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons but if it does not, its order will not be bad on that account. The judgment concluded that caste is only a relevant and not a compelling circumstance in ascertaining the backwardness of a class;
- While it may not be irrelevant to consider the caste of a group of citizens in determining their backwardness, caste cannot further be made a sole and dominant test of backwardness;
- The object of reservation would be defeated if, on the inclusion of a class in a list of backward classes, that class is treated as backward for all times to come, and therefore the state should subject the list of Backward Classes and the quantum of the reservation of seats to constant, periodical review.
In Ashoka Kumar Thakur vs. Union of India & Others, in the Supreme Court in writ petition (civil) 265 of 2006, Justice Dalveer Bhandari observed as follows:
4. On careful analysis of the Constituent Assembly and the Parliamentary Debates, one thing is crystal clear: our leaders have always and unanimously proclaimed with one voice that our constitutional goal is to establish a casteless and classless society. Mahatma Gandhi said: The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day. The first Prime Minister, Pt. Jawahar Lal Nehru, said that no one should be left in any doubt that the future Indian society was to be casteless and classless. Dr. B. R. Ambedkar called caste anti-national.
Despite what the various review committees and commissions set up by the government itself and the judiciary have said repeatedly over the years, caste-based reservation continues to increase. State after State, whether it is Tamil Nadu, Orissa, Jharkhand, or now Rajasthan, is now clamouring to increase the percentage of reserved seats freely above the 50 per cent limit laid down by the Supreme Court. And despite the Tamil Nadu law being under review in the Supreme Court, attempts are still being made, defying the Supreme Court, to put such laws in the Ninth Schedule of the Constitution in order to put them beyond the reach of the Supreme Court. Why?
It is not that the current crop of politicians do not know that our constitutional goal is to establish a casteless and classless society but they do need votes. And one of the most effective ways of getting votes is mobilisation of the electorate on the basis of caste. Instead of being an occupation-defining classification, caste has re-incarnated as a classification for political mobilisation. So long as caste helps politicians get votes, we can rest assured that caste is here to stay. As a matter of fact, if its vote-delivering capacity increases, it may well be in the politicians interest to make it stronger. And if reservation based on caste makes caste stronger, so be it.
Is there a way out of this impasse? Sadly, it does not seem like it. One way could be for our politicians to become so principled as to stop seeking votes on the basis of caste and seek votes based on ideologies, beliefs, principles, policies, and programmes. This seems unlikely, given what various political parties announced as the basis for their decisions to vote on the nuclear deal. The other is for us, the voters, to stop voting on the basis of caste, money, liquor, and so on, and vote on the basis of ideologies, beliefs, principles, policies, programmes, and the track records of political parties. Is that likely to happen, and when, is anyones guess.
In the meanwhile, innocent and naive people will keep dying in the vain hope of serving their communities, and politicians will keep making completely impractical promises and winning elections.
Jagdeep S. Chhokar is a retired professor of the Indian Institute of Management, Ahmedabad, and one of the founding members of the Association for Democratic Reforms.