Caste reservation is a hot debate in India even today, although it was implemented almost 40 years ago. However, with the recent 105th Constitutional Amendment Act, a milestone has been reached. The Act will strengthen federalism and democracy, decentralise legislative power, and maximise social justice in India.
In the last Monsoon session of the Parliament, the Modi-led National Democratic Alliance (NDA) government passed a significant constitutional amendment bill, making it the 105th Constitutional Amendment Act, which envisioned endowing all Union Territories (with legislative power) and State Governments to have their own list of Other Backward Classes (OBCs).
Having deeply accustomed to caste-based politics, the Indian political parties did not surprise us when all of them unitedly favoured this move without igniting any major negation and opposition to any portion of the Bill, which is, interestingly, quite a rare phenomenon in India’s parliamentary politics.
However, this amendment is significant from various aspects, ranging from strengthening the federal structure of Indian democracy and decentralising the decision-making process and power to maximising the boon of social justice for neglected sections of the Indian societies. Therefore, it turns out to be a riveting Constitutional topic to analyse at length.
In order to understand the whole quota and reservation issues pertaining to certain classes and communities that are being deprived socially, economically and educationally throughout ages, we, first and foremost, need to comprehend the very basics of the notion of reservation as well as its applicability and relevance in the Indian context.
Reservation: What Is It And Why Is It Relevant In India?
The term ‘reservation’ has been used more than two dozen times in the Constitution of India, indicating it being a government policy backed by the various provisions brought in by other Constitutional Amendments. As per the definition by Oxford Dictionary, the word ‘reservation’ has been derived from the word ‘reserve’, which connotes ‘keeping something for a special reason or to use at later date’. Hence, the term ‘reservation’ means ‘booking or securing a seat, table, room, etc. for someone in advance.’
In the context of Indian politics, the term ‘reservation’ is used to simply describe the ‘act of securing or setting aside a fixed number of seats in government jobs, educational institutions or even in legislatures for certain weaker sections of the population.’ It is also known by various other names likewise an ‘affirmative action’ or ‘positive discrimination’ made by state apparatus only.
The ‘concept of reservation’ apparently looks like standing contrary to the ‘notion of equality’. The general perception of ‘equality’ is that there should not be any discrimination, prejudice or biasness on the pretext of caste, colour, race, religion, land or language; in other words, it means that the same rules and parameters should be applied to everyone and no privilege should be given to anyone on the basis of any of their denominational identity.
However, this general perception of ‘equality’ is ideal and not practically feasible in the heterogeneous world of the present time. For instance, present societies can be idealised in a sports event wherein an eight-year-old kid wrestling against a 25-year-old man. It is unimaginable that anybody will consider it a fair and just competition because of the fact that it is not possible to apply the same rules to every individual of the society. That’s the reason we have a universal understanding of formulating sports competitions on the basis of ages of the participants like under 14 or 16 cricket and football teams.
This is the only aspect wherein a biological factor is considered as a ground for a special provision or positive discrimination in society. Such policies can be adopted for various other social factors as well. Just like stories of discrimination came on the surface throughout the world due to various factors like race (in the USA), religion (in the case of minorities in countries with an official state religion; the story of Jews in Germany is well known), caste (as happened in India), gender (a worldwide general trend) etc., the same factors can become the basis for reservation and positive discrimination as well for the same section of society who had been deprived and discriminated of their rightful resources because of their identity and social background. Hence, there is no doubt if it is believed that the ideal ‘concept of equality’ that pronounces the ‘same rules for all’ will only sustain more inequality and injustice in society.
The development of human consciousness is a constant process. With the onset of the modern era, when talks on democracy, secularism, republic, rights and the sovereignty of people intensified, political thinkers coined many ideals for the society, like liberty, justice, fraternity, equality etc. It is believed that in the 1850s, political thinkers like Karl Marx (1818 – 1883), JS Mill (1806 – 1873) etc. came up with the new concept of equality for the betterment of society.
Political thinkers believe that this new concept of equality does not hesitate to give an extra boon to the deprived section of society to ensure a level-playing ground for all the sections of the society. Thus, it had led to the evolution of the notion of social justice, which intended to ‘undo’ the process of injustices from the society by making a provision of upliftment of the marginalised sections.
With the emergence of the notion of social justice, policymakers and political thinkers started mulling on the adoption of mechanisms to attend social justice in society. One way to achieve social justice can be imagined if all the people in the society have the same feelings and attitudes towards the whole society as they have towards themselves, their families and their belongings, such as the feeling of sacrifice and feeling of empathy for their weaker family members. This attitude will definitely result in sorting out all the social imbalances and problems from society. But this is again too ideal to accept and unimaginable to be a workable plan in the real world. Thus, this option cannot be pursued to achieve social justice.
A better and practical way to achieve social justice in society can be through the adoption of policies like a ‘welfare state’ does. When we look into the role of a police state, we find that it only bothers about collecting taxes and maintaining law and order in the society in a high-handed manner.
A welfare state also performs the same duties but not like a police state does. A welfare state has a ‘common good’ in each and every one of its policies, the common good being a welfare outlook for the masses of the respective State. Undoubtedly, it is a welfare state that can only take actions to bring a level-playing base in the society by adopting a policy of reservation or quota system in favour of its deprived section, and that’s why such government action is known as an ‘affirmative action.’
Reservation is not unique to India. We can find it in almost all developing and developed countries. Even our neighbours like the People’s Republic of China and the Islamic Republic of Pakistan have constitutional provisions for granting reservation to certain groupings in their territories.
In India, the caste-based reservation system has its root in pre-independent British India. In the post-independence era, the Indian Constitution also dealt with pressing issues of deprived sections and brought certain Articles and provisions favouring the reservation narrative. For instance, Article 15 and 16 of the Indian Constitution talk about the concept of reservation, and Article 332 and 334 deal with the reservation of SCs and STs in the Parliament and State Legislatures.
The education and employment reservation in public institutions has been primarily given to three sets of groups — Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) are the officially designated groups of people in India who are entitled to get an education as well as employment reservation of 15%, 7.50% and 27% respectively in public institutions.
This article is about the 105th Constitutional Amendment Act that deals with the issue of reservation for Other Backward Classes (OBCs) only. So, let’s figure out who the OBCs are, how this category was formed, who can notify them, and what happens when a community is notified as one.
What Being An OBC Means In India
‘OBC’ is an abbreviation that stands for Other Backward Classes. The term ‘OBC’ is actually a colloquial reference to the said community in informal language. The Constitution of India refers to the said community with ‘Socially and Educationally Backward Classes (SEBC)’. However, the frequent usage of the term ‘OBCs’ to refer to the said community has become so profound that the actual term mentioned in the Constitution has turned out to be uncommon.
Worth-mentioning here is that the Constitution itself used the word ‘classes’ and not ‘castes’, which indicates that the primary basis of forming such grouping is not the ‘caste’ but the deprivation and disadvantage of certain Indians in terms of educational and social advancements.
The origin of having such a grouping of Indian citizens lies in Article 340 that comes under Part 16 (Special Provision relating to certain classes. Articles 339-341) of the Indian Constitution. Article 340 had actually paved the way for deliberation on perceived deprivation of certain Indian communities by stating:
“… a Commission shall be appointed to investigate the condition of ‘Socially and Educationally Backward Classes’ within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made.…….’
Subsequently, riding on the inspiration made in Article 340, a Commission to examine and investigate the backwardness of certain groupings was constituted under the Chairmanship of a Marathi Gandhian Dattatreya Balkrishna Kalelkar (1885-1981) in January 1953. The Kalelkar Commission took two years and submitted its report in March 1955.
In the final recommendation of the report, along with three other members of the commission, even Mr Kalelkar opposed and disliked linking caste as the sole criterion to grant reservation to any backward group of Indian citizens. He said so in his letter while forwarding the report to the President of India.
He further said in the letter, “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, Report of Backward Classes Commission).”
Does Caste Equal To Backwardness?
Here, a question arises: despite having clear mentioning of ‘classes’ not ‘castes’ in Article 340 of the Constitution of India and a categorical understanding of Mr Kalelkar to not link caste with reservation as the sole basis, how and why has ‘caste’ turned out to be the sole parameter in the Kalelkar commission and afterwards to gauge backwardness and deprivation of people of India?
To answer the above question requires us to understand the nature and composition of Indian society from a historical perspective. There won’t be a second opinion in the fact that caste has been a salient feature of India from the ancient to the modern era. Thus, it became the main basis to categorise the people for various purposes.
When the Government of India endeavoured to analyse backwardness in its own citizens, the ultimate parameter available in the hand was nothing but its caste system. Despite the government’s pious pursuit to find backward and marginalised classes among its own people, it resulted in discovering castes that were not mainstreamed like the forward classes/castes in India.
So, in India, it is quite impossible to segregate castes from classes or vice versa because of them being so blended and intermingled with each other. It is noteworthy that the caste system in India is so overarching that it did not spare even those communities who subscribe non-Hindu religions that claim to have the doctrine of egalitarianism as the prime feature.
However, the recommendations made in the report of the Kalelkar Commission were not accepted by the then government led by Pandit Jawahar Lal Nehru (1889-1964). The obvious reason for the rejection was the evolving political scenario of India at that point in time. India had just got independence with a bitter experience of bloody partition on communal grounds a couple of years ago and there was a strong belief among the ruling elites that India was previously colonised only because of home-grown social evils such as caste-based system and infamous old orthodox traditions prevalent across the Indian subcontinent. So, at that crucial juncture, the people at the helm of India’s affairs decided not to let the evil officially engraved in the society and dreamt of an India which should be afresh, casteless and progressive.
Time was flying and India was on its progressive path. Then came 1977 and Indian politics took a surprise turn. For the first time, a Non-Congress Government was formed at the Centre, led by Morarji Desai (1896- 1995) of the Janata Party. The Janata Party government under Desai thought of setting up another Commission to identify socially or educationally backward classes of India and in 1979, decided to hand over the task to former Chief Minister of Bihar, Bindeshwari Prasad Mandal (1918-1982), popularly known as BP Mandal to head the Second Backward Class Commission, which was later famously known as the Mandal Commission.
The Commission used 11 social, economic and educational indicators to determine backwardness and submitted its report in 1980. As per the parameters, the Commission had comprehensively studied all Hindus and Non-Hindus of India and identified 3,743 castes as Other Backward Classes (OBCs) that were constituting 52% of the total population of India at that time. Then, the Commission made a recommendation of granting 27% reservation to the said group in employments of Central Government and public sector undertakings.
However, the Janata Party government could not last and the Indian National Congress regained power in 1980 under the Prime Ministership of Indira Gandhi. Congress was never in favour of granting reservation on such grounds. So, it had cited various reasons to negate the implementation of Mandal Commission such as the risk of caste tensions at a large scale in India, lack of machinery to implement such a huge recommendation on a vast territory like India.
Then again in 1989, another Non-Congress Government was formed in India by National Front (NF) under the leadership of Vishwanath Pratap Singh (1931-2008). In order to consolidate caste-based coalition support in North India, VP Singh Government implemented the recommendations of the Mandal Commission in 1990. The caste-based reservation quickly engulfed the whole country with large-scale protests particularly by the youth of the General Category.
A student Rajiv Goswamy self-immolated in 1990. The sudden hue and cry among the General category throughout the country was due to the anger and disappointment on the implementation of the Mandal Commission that curved out further 27% reservations to the OBCs in government jobs and higher education, making it 49.50% reserved quotas. After that, a petition challenging the implementation of recommendations made in the Mandal Commission was immediately filed in the Supreme Court by Indra Sawhney, making three fundamental arguments: (a) Caste is not a reliable factor for backwardness; (b) The efficiency of public institutions is at risk; (c) Reservation violates the Right to Equality.
The Supreme Court of India deliberated on the petition for almost two and half years, and gave its verdict in November 1992, popularly known as the ‘Mandal Verdict’, in which the Supreme Court upheld the validity of 27% reservation and opined that the caste is an acceptable indicator of backwardness. The Apex Court also asked the Union Government to establish a permanent statutory body, i.e. National Commission on Backward Classes (NCBC). Furthermore, the term ‘creamy layer’ was used in the context of reservation and a 50% ceiling was placed on the total reservation in the verdict.
After this landmark verdict, the NCBC was constituted as a permanent statutory body under the National Commission on Backward Classes Act of 1993. Since then, the OBCs of the country are entitled to get reservations in higher education and public sector employment.
However, who can notify any caste as OBC was not mentioned anywhere in the Constitution of India?
Since the implementation of the Mandal Commission, the practice and convention to notify enlisting of any caste in OBCs were in the hands of both the State and the Central Governments. But when the 102nd Constitutional Amendment Act was passed in 2018, it basically inserted three new Articles in the Constitution: Article 366 (26c) that defines ‘Socially and educationally backward classes’, Article 338B that provides Constitutional status to the ‘National Commission on Backward Classes’ and makes its approval necessary for notifying any community as OBC, and Article 342A that gives powers of notifying OBC to the President of India.
The Recent Notification Of Marathas As An OBC
Recently, the issue of the OBCs and its related notification came into the limelight only when the Maharashtra government notified Marathas as an OBC. Since Article 342A, which was brought in by the 102nd Constitutional Amendment Act, clearly states that only the President of India has the authority to notify any caste as OBC, the matter went to the Supreme Court of India to decide the validity of the notification by the Maharashtra Government of enlisting Marathas as OBC in the State. The Supreme Court of India did not take much time to come to the conclusion in this respect and decided that making such notification lies only in the hands of the President of India as per the interpretation of Article 342A of the Constitution.
Since there is an ongoing tussle between the Maharashtra government led by Shiv Sena’s Uddhav Thackeray and the Union Government on various political fronts from day one of the Maha Vikas Aghadi, the Supreme Court’s verdict has caused huge tensions among the political parties within the State and the Centre. In order to reduce tension and pacify the waring political parties, the Centre came up with the 127th Constitutional Amendment Bill, aiming to amend all the three Articles inserted through the 102nd Constitutional Amendment Act. The Bill was passed by both the Houses of the Parliament unanimously, making it the 105th Constitutional Amendment Act, which amended Article 338B and removed the provision of approval of the NCBC to notify any caste as OBC. It also amended Article 342A and gave the authority to notify any caste as OBC to the President of India and the State Governments/Union Territories having legislative Assemblies as well.
This 105th Constitutional Amendment Act gave immediate relief to the Maharashtra government that went ahead with implementing reservation for Marathas. However, this Act also has many other significances in long run.
There is a long-time debate in Indian politics that the Centre does not care about the federal structure of India when it comes to asserting authority on States. However, by bringing the 105th Constitutional Amendment Act, the NDA government led by PM Modi showed its intention of strengthening the fabric of federalism in the country. With this Act, the Centre has allocated Constitutional powers to the states and Union Territories and enhanced their legislative ambit, protecting and promoting federalism in the country.
Another significant aspect of the 105th Constitutional Amendment Act is that it will ensure maximum social justice enshrined in the Preamble of the Constitution for Indian citizens. The immediate reflection of this can be seen in the case of the Maratha quota. After the Supreme Court’s interpretation of Article 342A, 671 castes lost their OBC Status. Now, after this Act, their social justice will be reinstated and they will be able to get benefits of all the affirmative actions.
This Act is also a bouncy step towards more democratic decentralisation of power. It is now firmly believed in political discourses that the effectiveness of any system can be achieved only if power is not concentrated with a single authority. As long as power is distributed, the outcome of policies will be more effective and result-oriented.
In India as well as in any part of the world, State and Provincial Governments are better aware of their communities and their conditions in their respective states. So, the decentralisation of legislative and executive powers will have a more constructive impact on society as a whole.