One of the most polarising and politicised matters in India, caste-based reservation was introduced under the British rule, carried forward by Indian politicians post-independence, and tweaked by the Mandal Commission, until it became unrecognisable due to repeated amendments to the Indra Sawhney verdict.
Most recently, the BJPs 10% quota for economically backward people in the general category violates Sawhneys 50% cap on caste-based quota in the country. Furthermore, by making it about economic backwardness, the ruling government completely dismisses the historical and social persecution of marginalised classes rooted in caste.
Having come a long way from the original purpose and principles of the quota system, Prime Minister Narendra Modis latest push for introducing a quota for upper caste ‘poor’ may not immediately strike as a populist ploy before the Lok Sabha polls. But on careful consideration of the historical and social context of Indias tryst with reservation, it appears to make a farce out of the constitutional tenets of equality and social justice.
Overview of the system
In India, reservation is a form of affirmative action policy in the areas of higher education, public sector employment, and legislative representation for Dalits (Scheduled Castes), Adivasis (Scheduled Tribes), and a host of Other Backward Classes that broadly fit the shudra category of the caste system.
The quota system, as we know it today, devotes 50% of government jobs and college seats for the SCs, STs and OBCs. To qualify for the quota, one must belong to a socially and economically backward caste/tribe/class although the system takes care to exclude the creamy or advantaged people within these categories from availing the aforementioned benefits.
Indias history of casteism, while perceived less acutely now, persists nonetheless. The first social reforms to fight untouchability against the depressed classes began in the princely states during the colonial rule. In 1902, for example, the Maharaja of Kolhapur, introduced reservation in favour of non-Brahmin and backward classes. He provided free education, suitable employment for all and made the case for a class-free Indian society.
At the Round Table Conference of June 1932, the SCs and STs were assigned a number of seats to be filled by election from constituencies in which only they could vote, although they could also vote in other seats. Dalit activist B. R. Ambedkar favoured it and the Poona Pact ensured Ambedkar held a single Hindu electorate. After independence, some major initiatives were taken to make career and education opportunities more accessible to the backward classes.
In the 1950s when the affirmative action programme was first launched, it formed one of the oldest such programmes in the world. At the time, India had reservation only for the Dalits and Adivasis. In 1954, the Ministry of Education suggested that 20 per cent of places should be reserved for the SCs and STs in educational institutions, with a provision to relax minimum qualifying marks for admission by 5 per cent wherever required.
In 1982, it was specified that 15 per cent and 7.5 per cent of vacancies in public sector and government-aided educational institutes should be reserved for the SC and ST candidates, respectively.
How things changed with the rise of the right
In 1979, the Janata Party government constituted the Mandal Commission which sought to identify Indias socially or educationally backward classes in a famous 1980 report, calling for reservation in jobs and education for the OBCs.
The Congress which returned to the centre was able to stymy it for a decade, until another right-wing government came to power. Then Prime Minister VP Singh enforced the implementation of the Commissions recommendations, sparking protests and a petition to the top court which became the Indra Sawhney case.
How did the 50% cap come about?
In Indra Sawhney vs Union of India, 1992, the Supreme Court partially accepted the governments new policy, allowing for 27% reservation for the OBCs, but excluded the creamy layer (socially and economically advanced OBC people) from its coverage. Dalits and Adivasis together got 22.5% of the reservation pie, bringing the total to 49.5%.
The court observed that reservation under Articles 15(4) and 16(4) should not exceed 50% and the States and the Union have by and large accepted this which it interpreted to mean that this ruling should be held as constitutional prohibition and any reservation beyond 50% would liable to be struck down. It had justified the 50% ceiling on reservation saying no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality.
The case of the missing census data
The court offered no explanation, however, on how it arrived at that reasonable number, especially when the last census of castes in 1931 said that OBCs alone form at least 52% of the population.
The UPA government, in 2011 had, undertaken a Socio-Economic Caste Census for the first time in eight decades, reports of which were submitted in 2015. The latest census data, however, remains unavailable although RTI activists have written to the centre to publish the findings, time and again over the last three years.
On January 3, 2018, the office of the Registrar General of India said that the data would be analysed by an expert group to classify the names of castes returned in the survey. Such a group was ordered to be formed in July 2015 but is yet to be set up. There has been much criticism over methods of data collection and databasing of the 46 lakh castes, sub-castes, synonyms, surnames, clans and gothras.
The objective of the latest census was to get a picture of the caste structure and work out targeted welfare scheme for the relevant groups. Experts have claims that the census has thrown up astronomical dataa higher OBC population figurewhich could lead to demands for a higher quota in government and jobs.
To raise the cap or not
Several attempts to extend reservation to new groups on these grounds have been thwarted by this rule, except in Tamil Nadu where tussle with the top court is still on, over the 69% cap.
Tamil Nadu has the most extensive reservation system in the entire nation which pushed its States Assembly to pass a law in 1993 to keep its reservation limit intact at 69%. The law was subsequently included into the Ninth Schedule of the Constitution through the 76th Constitution Amendment passed by Parliament in 1994, although the validity of this higher cap is still pending before the apex court.
The 50% cap has left Indian politicians with no room to act even as strong demands for further reservation now dominate politics in several states. In 2014, the Bombay High Court stayed the Maharashtra governments decision to provide reservation for Marathas since, among other reasons, it exceeded the 50% cap. But in the face of mounting agitation from the Marathas last year, CM Devendra Fadnavis acquiesced to raising the states total quota of reservation to 68% basing it on the Tamil Nadu model.
Attempts by Rajasthan and Odisha to extend reservation to new groups have since been struck down for the same reason. In Gujarat, the Patidars have also been agitating for reservation for the past two years. However, many of their claims have been criticised for focusing more on regional identity and increasing clout, rather than basic rights of employment and education, although that debate is delicate.
The Patidars, for example, have rural origins but were among the earliest to migrate to cities and have adequate representation in the governing bodies, while the Marathas command respect in their respective state and hardly qualify as a marginalised class.
In the run-up to the Assembly polls last year, Karnatakas BJP government promised to raise the reservation cap to 70%. Andhra Pradesh is also seeking to raise the limit to 55% and Telangana to 62%. The two Telugu states have already passed laws to try and get immunity from the apex courts order under the Ninth Schedule like Tamil Nadu.
Although the Indra Sawhney judgment rightfully placed certain curbs on the power of governments in India to reserve college seats and jobs, certain Dalit activists say it also hampers genuine efforts of social justice at times where the state needs to go above and beyond, and prevents due representation to discriminated sections of society.
But the basis on which the judgement is being amended this time, is worrisome to say the least. Whats more, the Parliament has the power to overturn the 50% cap through a constitutional amendment since it is a purely judicial invention without a constitutional basis. While there may be some textual support for limiting reservations in the context of jobs, there is none whatsoever to support a limiting of reservations to 50% in the education sector, notes legal experts.
Case against the 124th amendment: What about social justice?
The Union governments proposal to amend the Constitution to permit reservations to Economically Weaker Sections upto 10% of seats and jobs, banks itself on a disingenuous worldview of economic deprivation and social justice. Reservations, as Justice O Chinnappa Reddy famously put it, are not charity but a means to ensuring parity for those who had been denied opportunity. The idea that economic weakness should be a criteria for reservation was discussed and discarded in the Parliamentary debates about the First Amendmenta fact noted by the Supreme Court judgment in Indra Sawhney.
Overlooking the historical and systemic inequalities that the SCs, STs, and OBCs have experienced for centuries, defeats the entire point of reservation. Reservation is affirmative action to ensure that equal opportunities, i.e., social justice is delivered in fact, not just in policy. It is critical to acknowledge the history of oppression and omission, to rule out the ridiculous line of argument that reservation endangers meritocracy.
Where do we go from here?
Lok Sabha speaker Sumitra Mahajan, who recently failed to explain the concept of caste-based reservation without referring to a chocolate bar, had raised an irrefutable point back in 2016. She was reminded of Ambedkars own reservations about handing out quotas forever, Mahajan said, noting that we should have been closer to eradicating casteism, 70 years after the independence.
At the end of the day, quota is a crutch, not a solution. The increasing demand for it only points to the governments abject failures to bring about greater structural changes that Indias socially and economically backward classes deserve. Alternatives to the quota system would perhaps require the government to first acknowledge the roles that social injustice and casteism play in determining social and economic backwardness. Meanwhile, atrocities against Dalits continue unabated and Dalit rights activists are targeted, arrested, and labelled as seditious threats to national security.
For now, for better or for worse, Indias burgeoning savarna middle class, with income less than Rs. 8 lakhs, somehow qualify for reservations and despite being oblivious to caste-riddled poverty, are conflated with the poor.
This gambit could play out in several ways. It could help BJP win (back) some crucial Hindu voters in the upcoming polls, or it could consolidate Dalits and OBCs against the BJP in ways that will abolish the 50% cap for good.
While poverty is ubiquitous, it is also a structural reminder of caste difference in our nation. So when the state chooses to introduce new economic criteria (such as family income), which can change overnight as compared to centuries of disenfranchisement, the proposed amendment attacks the very core of equality of all citizens under the Constitution. It does not bode well for the country to interpret a crucial, constitutional measure anew.
Prarthana Mitra is a staff writer at Qrius