By Sushil Kumar Jain
Martin Luther King Jr. visited India in 1950s. After his return home, he was full of praise for India, especially for the affirmative action it took for the advancement of the depressed classes.
He was referring to the reservations for the Scheduled Castes and the Scheduled Tribes in government jobs and educational institutions. It will sound astounding to those singing paeans for foreign countries in general and developed countries in particular. But Martin Luther paid tributes to the efforts made by India for the advancement of the underprivileged. Can India still be idealised like this for its efforts to usher in an egalitarian society? Reservation has almost lost its purpose as new castes are being brought within its ambit for securing their votes.
The Union government extended the benefits of reservation to Jats by including them in the central list of Other Backward Classes (OBC) just a few hours before the announcement of the Lok Sabha elections. The paramount question is who is backward and what are the criteria of identifying backwardness? Though there is not much problem in respect of SCs and STs, it is quite problematic in case of OBC.
The constitutional mandate is quite clear that the government can make special provisions for socially and educationally backward classes of citizens as provided by Article 15(4) and for those not adequately represented in the government jobs as provided by Article 16(4).
The question is, “Can caste be sole criteria criterion of identifying backwardness?” The Supreme Court has confounded the confusion by giving conflicting judgments in this regard. In state of Andhra Pradesh- versus- P. Sagar (1968), the Supreme Court struck down a notification by the Andhra government apparently based on exclusive caste criterion. It observed that the expression “class” in Article 15(4) means a homogenous section of people grouped together because of certain likeness or common traits in the determination of which caste cannot be excluded altogether. It added, “But in the determination of a class a test solely based upon the caste or community cannot be accepted.”
Again, in Triloki Nath- versus- State of J&K (1969), it held that ‘backward class’ was not synonymous with backward caste or backward community. However, in A Peeriakaruppan-versus State of Tamil Nadu (1971), the apex court upheld the test of backwardness based on caste that it was permissible so long as such castes were socially and educationally backward though it warned against vested interests being created in favour of castes and directed for constant revision of the test. Ultimately, a 9 judge constitution bench of the Supreme Court, in Indra Sawhney- versus- Union, more popularly known as the Mandal Commission case (1992), by a majority of six to three, held that caste can be sole criterion of identifying backwardness. But the three judges in their dissent held it unconstitutional and inimical to the integrity of the country.
Though Jats were included in the lists of OBC of nine states, they did not figure in the central list. A caste is included in the list on the recommendation of the National Commission for Backward Classes (NCBC) which had rejected the demand of Jats for inclusion. It is for the first time that the Union government has given the benefit of reservation to any caste without the recommendation of the NCBC. In 1997, the NCBC had categorically rejected the demand of including Jats from Haryana, Uttar Pradesh and Madhya Pradesh in the list of OBCs. Only Jats from Rajasthan were included but only after excluding those from Bharatpur and Dholpur districts. Again in 2005, the demand of Jats from Delhi was also rejected by the NCBC. As the agitation by Jats grew stronger, the Central government asked the Commission to review its earlier recommendations after it acquired review power in 2011.
The Commission requisitioned services of the Indian Council of Social Sciences Research (ICSSR) for collecting additional socio-economic data about Jats. It also held open hearings for four days from last February 10 to 14 giving two days each to supporters and opponents of the demand. Ultimately, the NCBC came to the conclusion that Jats as a class cannot be treated as backward: “Ethnically they are at a higher level; they are of Indo-Aryan descent, their educational level is high and the social status they command is far higher than the ordinary Shudras. In the absence of social and educational backwardness coupled with inadequacy of representation in the services, Articles 15(4) and 16(4) of the Constitution do not apply for the purpose of treating Jats as a backward class.”
According to Section 9(2) of the NCBC Act, the recommendation of the Commission shall ordinarily be binding upon the Union government, though it has power to reject it. But for that, it has to adduce valid reasons as it cannot declare any caste as backward on its own. The opposition to their inclusion in the list came from other backward castes only who are already in the list as they genuinely fear a larger share being cornered by a dominant caste. But leaders of Jats feel that the attitude of other casts is like that of train passengers who after boarding the train do not want other passengers to enter and crowd, but when they are on platform, they board no matter how crowded compartments are. They also accuse the NCBC of reproducing the representations of the opponents verbatim in its report.
The NCBC was created pursuant to the direction of the Supreme Court in the Mandal Commission case which said a body was required to identify the OBC. The Commission is mandated to advise the Central government about inclusions in and exclusions from the lists of communities notified as backward for the purpose of job reservations after careful deliberation, but ironically there has never been any revision of the list. INAV