Rekindling the debate over moves to include 17 Other Backward Classes (OBCs) in the Scheduled Castes (SCs) list, the Uttar Pradesh government, citing a 2017 observation of the Allahabad High Court, has directed officials to issue caste certificates to these 17 castes “after examination and based on documents in accordance with the rules”.
The High Court, while hearing a PIL, had said that “in the event, any caste certificates are issued pursuant to the order impugned, those certificates shall be subject to the outcome of the writ petition”.
The state government’s June 24 direction to district magistrates and commissioners to issue caste certificates to the 17 OBCs — Kashyap, Rajbhar, Dhivar, Bind, Kumhar, Kahar, Kewat, Nishad, Bhar, Mallah, Prajapati, Dhimar, Batham, Turha, Godia, Manjhi and Machua — drew an angry response Monday from BSP chief Mayawati who called it “unconstitutional”, saying these castes will neither get benefits meant for OBCs nor SCs since a state government has no power to make any alteration to the SC list.
SP had pushed it, BSP with a rider
The BJP government in UP is not the first to move on the 17 most backward castes in the OBC list. In 2005, it was the SP government of Mulayam Singh Yadav which passed the first order to win over 11 of these castes who felt left out of the quota benefits. The order was stayed and the proposal sent to the Centre. Subsequently, the BSP government of Mayawati quashed the notification. She later said these castes could be included in the SC list provided the SC quota is increased. The SP government of Akhilesh Yadav cleared the inclusion proposal ahead of the 2017 assembly elections but it was challenged and is in court.
In a statement, Mayawati said: “This order of the Uttar Pradesh BJP government is a big fraud on these 17 castes as in reality they are not going to get benefits of either OBC or SC. They will not get benefits of OBC because the government will not consider them OBC after this order, and neither of SC because no state government can add any caste to the SC list nor remove just with an order. Article 341 of the Constitutions bars it from doing so.”
Underlining that the power to add or remove any caste from the SC list is vested in Parliament, Mayawati referred to the two parts of Article 341: “(1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause ( 1 ) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
Explained | The line between OBC and SC
The PIL was filed by Gorakhpur-based B R Ambedkar Granthalaya Evam Jan Kalyan Samiti which challenged a December 2016 notification by the then SP-led government in the state, bringing these castes into the SC list.
Speaking to the Indian Express, Hari Sharan Gautam, petitioner and chief of the B R Ambedkar Granthalaya Evam Jan Kalyan Samiti, said, “The government has not filed a counter-affidavit in the case, which it was supposed to about two years ago. Moreover, these certificates will have no significance till the final decision of the court comes. We are taking legal opinion on the move of the government and will further move the court seeking to quash this order.”
UP Advocate General Raghvendra Singh told The Indian Express, “The order issued by the state government is subject to the court decision. We have to file a counter-affidavit before the court. I have to check when the hearing in the case is slated.”
A senior state government official, while maintaining that the matter is sub-judice, said the order will stand as government has not said anything on its own and has just asked to ensure implementation of the court direction.
On the other hand, Awadhesh Verma, chief of Arakshan Bachao Sangharsha Samiti said, “It is a move without any constitutional sanctity as it is a central government subject and only Parliament can clear it and the President can approve it. Moreover, it is sub-judice. The state government cannot take such a decision and we will soon start statewide protests.”
State officials said the government wanted the 17 castes in the SC list because these castes figure very low on social and economic indices. The officials maintained that the advantage of placing them in the SC list will entitle them to quota and other benefits announced by the government from time to time.
But SC groups fear that such a move might impact their quota as the new entrants will consume their share if the reservation limit is not expanded.
Speaking to the Indian Express, R K Gupta, counsel for the BR Ambedkar Granthalaya Evam Jan Kalyan Samiti, said, “We had challenged a similar move of the government in 2005 as well when it had amended the Uttar Pradesh Public Services (Reservation, for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 citing that alteration in the list of SC can be made only by the President and not by the Governor and that the notification lacked constitutional sanctity. We did not pursue it further as the notification was withdrawn by the Mayawati-led government in the state which came to power in 2007.”
BJP spokesperson Harish Srivastava said: “Be it the SP or BSP governments in the past, they never had any intention to include them (the 17 OBCs) in the SC list and used it merely as an election stunt. Akhilesh did it just before the 2017 assembly polls but we have the intention to actually bring these castes the benefits that they deserve. The government has just issued the direction of the court as it is, and has issued nothing from its own side.”
He rejected allegations that the BJP was doing this with an eye on bypolls to 12 assembly seats in the state, saying that if the party wanted to derive any political mileage from it, then it would have done it before the Lok Sabha polls.