Rethinking Reservations
by Sandhya Jain on 24 Mar 2015 10 Comments

In a judgment with far reaching consequences for reservation politics in India, the Supreme Court on March 17 scrapped the UPA government’s March 2014 notification that included Jats in the Central List of Other Backward Classes (OBC) in nine States. In Ram Singh & Others vs Union of India (WP Civil No 274 of 2014), Justices Ranjan Gogoi and Rohinton Nariman inserted a startling ‘exit clause’ into the hitherto closed world of quotas and insisted that reservations must be justified on merit rather than slogans based on caste-centric mythologies of historical injustice and backwardness.


The impugned notification put Jats in the Central List of Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and Dholpur districts of Rajasthan, Uttar Pradesh and Uttarakhand. Barring Gujarat, (Hindu) Jats are listed as OBC in these States; they are the erstwhile rulers of Bharatpur and Dholpur. The UPA amended the rules to allow the National Commission for Backward Classes (NCBC) to review their status at national level.


In June 2011, the NCBC deferred a decision on Jat representations until the finalisation of the Socio­economic Caste Census (SCC) 2011. But, in July 2011, the NCBC approached the Indian Council of Social Science Research (ICSSR) to conduct a comprehensive survey in Uttar Pradesh, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat to ascertain the community’s socio-economic status. In October 2012, the NCBC pruned this to a 2 per cent sample survey.


However, in June 2013, the Prime Minister’s Office informed the Ministry of Social Justice and Empowerment that a Group of Ministers chaired by the Finance Minister would interact with Jat leaders regarding their demand for inclusion. The GoM would also monitor completion of the ICSSR survey and facilitate an early decision by the NCBC.


An ICSSR Expert Committee gathered all literature on the subject, including reports of the various State Commissions regarding inclusion of Jats in State OBC lists, and presented the NCBC a summary without recommendations. The NCBC asked the States to fix public hearings in the respective State capitals, but on receiving no response organised public hearings at Siri Fort Auditorium, Delhi, in February 2014.


The same month, the NCBC advised the Centre that Jats did not qualify for inclusion in the Central List of OBC, as merely belonging to an agricultural community cannot confer backward status. Ruling that Jats were neither socially or educationally backward, the NCBC suggested the need for a non-caste based identification of backward classes. It noted that Jats were adequately represented in public employment (armed forces, government services and educational institutions).


Surprisingly, the Union Cabinet ruled that the NCBC failed to note “ground realities”. Claiming that the OBC lists of the concerned States was reasonable basis, it included Jats in the Central List of Backward Classes for the said States and notified the same on 4 March 2014. The General Elections were notified the next day, giving the decision a distinctly political taint.


The Supreme Court, however, has opined that the backwardness contemplated by Article 16(4) of the Constitution is social backwardness, which may be linked to educational and economic backwardness, but is a distinct concept with its own implications. This was overlooked by the cabinet meeting of March 2, 2014, as shown by a scrutiny of the Minutes. The Court noted that while the Minutes detail the deliberations with respect to Jats in Haryana, National Capital Territory of Delhi, Uttar Pradesh, Uttarakhand, Himachal Pradesh and Rajasthan, they omit to mention Madhya Pradesh, Gujarat and Bihar, though these States were also included in the amended Central List of OBC. This suggests that these States were not considered by the cabinet at all.


Justices Gogoi and Nariman concluded that barring Haryana (Justice KC Gupta Commission Report, 2012), all State Commission reports and literature on the subject was at least one decade old and hence inaccurate for measuring backwardness for purposes of inclusion in the List of OBC. As citizens are expected to continually progress on the social, economic and educational fronts, the data to measure their growth must be more contemporary.


Disapproving of the fact that over the past two decades, there have only been inclusions in the Central and State OBC Lists, the judges labelled this “negative governance”, which was not envisaged in the Constitutional Scheme. The Court acknowledged that backwardness is caused by several factors - social, cultural, economic, educational, even political. In Hindu society, owing to historical conditions, it has generally been associated with caste.


The Supreme Court has now guillotined this conflation of Class and Caste by nixing the use of caste as sole basis of identification of a group as backward. Article 16(4) and Article 15(4) enjoin the State to take affirmative action for the most deserving. Social groups that are “most deserving” must necessarily undergo continuous change, and new methods and yardsticks must be evolved to identify them.


In National Legal Services Authority vs Union of India (5 SCC 438, 2014), the Supreme Court mooted recognition of the third gender as a socially and educationally backward class entitled to affirmative action. This path breaking judgment showed the high degree of vigilance needed to identify emerging forms of backwardness. The constitutional mandate cannot be misused to enable groups of citizens to recover “lost ground” by claiming benefits on the basis of historical prejudice.


Self-proclaimed social backwardness will no longer be constitutionally permissible. Nor will backwardness be ascertained through mathematical formulae based on social, economic and educational indicators. Backwardness must also cease to be relative - erroneous inclusions cannot justify further inclusions. Henceforth only the most distressed must be included. It follows that politically organised groups like Jats cannot be included as OBCs just because groups who have fared better than them have been included.


By enunciating rational criteria to determine backwardness and suggesting periodic revision of the OBC List to include newly deserving categories, and exclude those who no longer need affirmative action or were included on flawed premises, the Supreme Court has taken jurisprudence to a new morally just dimension. The task ahead is to take this to the next level and revise all quotas to exclude creamy layers and extend benefits to those who have never received them due to cornering by dominant groups within the Scheduled Caste or Scheduled Tribe categories. Reservations are for those who need a helping hand; they cannot be used to choke the upward mobility of the less connected in any grouping.   

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