Quotas: Down a slippery slope

Quotas-for-All: Ignoring the logic of reservations, quotas are being handed out for electoral gain

The tendency of the short-sighted, next-election-fixated political leaders to manipulate inclusion, in the Schedules of SCs and STs and lists of Socially and Educationally Backward Classes (SEdBCs), of castes and tribes which do not fulfill the objective criteria started way back in the 1950s. But in recent times, this tendency has gathered tempo and is threatening to undermine the rationale behind the policy.

These Schedules and lists of SCs, STs and SEdBCs are not only for the provision of reservation, but are also for many other measures of social justice required for remedying the harmful effects created by the caste-system-with-‘untouchability’ over the centuries.

Castes which do not fulfill the criteria are seeking inclusion in these lists mainly to secure the benefit of reservation.

At this stage, it is necessary for people in general to be clear about the rationale of listing and about the reservation policy. The reservation policy emerged, starting in the early 20th century, to correct the imbalance in the composition of the public services. The public services were virtually the monopoly of one or a few castes constituting a small part of the population. The bulk of the people were kept out through the mechanism of the caste system and ‘untouchability’, denying them access to education and to government posts.

Neither in the pre-Independence stage nor under the Constitution of independent India was reservation envisaged as a policy for remedying unemployment or poverty. Poverty, unemployment and farmers’ distress are serious problems, but the remedy for them lies in economic policies, not in reservation.

For the purpose of reservation and other social justice measures, the Constitution specifies only three social classes, namely: (a) Scheduled Castes (SCs), or Dalits, (b) Scheduled Tribes (STs), or Adivasis, and (c) Socially and Educationally Backward Classes (SEdBCs), or Other Backward Classes (OBCs), or Backward Classes (BCs).

Reservation cannot be provided under the Constitution for any other social class. Poverty not preceded by and not consequential to social backwardness (or ‘untouchability’ or ‘isolation under vulnerable conditions’) is no ground for allowing reservation, as seen from a reading of the Constitution and as amply clarified by the Supreme Court’s landmark Mandal case judgment. How have the three social classes been identified and how is any change made?

Scheduled Castes

SCs have been identified and specified on the basis of ‘untouchability.’ That is, castes on which ‘untouchability’ has been imposed have been listed as Scheduled Castes by a series of Presidential Orders.

Any addition, deletion, modification in any of the entries in the Schedules can be made only by Parliament by law. Any community can be added to the SC list only if the Government of India, the anthropological wing of the Registrar General of India and the National Commission for SCs are objectively convinced of the factum of it being a victim of ‘untouchability.’

Scheduled Tribes

STs are tribes, identified and specified on the basis of a group of characteristics which can be collectively described as ‘isolation under vulnerable conditions.’ No caste can be included in the ST list. The procedure for adding a community to the list of STs is the same as for SCs. Only a tribe which fulfills the criteria can be added to the ST list.

Demands are sometimes being made and recommended by state governments in certain cases for inclusion in the list of SCs and STs even when they know that the criteria are not fulfilled, and even with the full knowledge that the recommendation cannot be and will not be accepted and acted on. This is being less than honest.

SEDBCs

SEdBCs have been identified on the basis of social and educational backwardness. It is not social backwardness or educational backwardness, but both. The SEdBCs include not only Hindus, but also Muslims, Christians and Sikhs.

A caste can be added to the existing list of SEdBCs (i) only if it is proved first that it is ‘socially backward’, (ii) then that it is also educationally backward, and (iii) for reservation in employment, that it is also not adequately represented in the services under the State.

The term ‘social backwardness’ must be correctly understood. It is not a statistical fact measurable arithmetically or statistically. Social backwardness is a social fact and describes the low position of a caste in the traditional hierarchy of the caste society of India. Usually, socially backward communities are linked to a traditional occupation, which is considered to be inferior or “lowly” and sometimes even stigmatized.

The Gaikwad Commission of Maharashtra, on the basis of which the Bombay High Court has recently upheld the Maharashtra state legislation declaring Marathas to be an SEdBC class, has confused data and statistics showing economic disadvantage and decline with social backwardness.

The Supreme Court’s landmark Mandal case judgment of 1992, which upheld the VP Singh government’s Office Memorandum of 1990 providing 27% reservation for listed castes of SEdBCs in the services under the Centre, has clarified that adequacy of representation is not population-proportionate representation. By that standard, Marathas cannot be considered to be not adequately represented.

One other important fact to be remembered is that unlike the position regarding SCs and STs, in the case of SEdBCs, there is a Central List of SEdBCs for each state; and there is also a State List of BCs issued by each state listing the BCs of that state. The two lists are mostly the same for most states.

The Central List of SEdBCs is for the purpose of reservation in Central services and schemes. State Lists are for reservation in the state government services and schemes.

A procedure was laid down by the Supreme Court in the Mandal case judgment for inclusion of any caste in the Central or State Lists or for exclusion of any caste from any of these lists. This procedure continues to be binding on governments even after the setting up of a Constitutional Commission for SEdBCs under Constitution (102nd Amendment) Act.

The tendency to ignore the procedure and arbitrarily include communities in any of these lists even when they do not fulfill the criteria should be resisted by the people of all states. Wrong inclusion of a community in a state will adversely affect all genuine communities in all states in the competition for Central posts.

By the Constitution (103rd Amendment) Act 2019, a new category known as Economically Weaker Sections has been created. Its constitutional validity is yet to be decided by the Supreme Court, where it has been challenged. In my view, it is neither constitutionally valid, nor sustainable by objective facts.

(The writer is a former Secretary to Government of India and an adviser to several state governments on social justice and reservation matters)