Parliament last week passed a historic amendment to the Constitution when it adopted a Bill to provide 10 per cent reservation in government jobs and educational institutions to the economically weaker sections (EWS) among the upper castes, or those who are not covered under any reservation plan. As per the reform, EWS is defined as families with income (includes agricultural income as well as from profession) below Rs 8 lakh per annum. In rural areas, such families who own agricultural land below five acre and residential house below 1,000 square feet and in urban areas, those with residential plot below 100 yards in notified municipality or residential plot below 200 yards in the non-notified municipal area will be considered as part of this category.
While both houses of Parliament have given almost unanimous assent to the Bill, we are yet to see if it passes judicial review. However, if passed, the amendment would be historic in the sense that for the very first time economic class would form the basis upon which an affirmative action programme would be undertaken in India. The reservation system in Independent India first came into effect in 1950. In the ensuing 70 years it has undergone several twists and turns. However, what remained rooted in place is the centrality of caste in deciding the way quotas were allotted.
In order to understand why the 10 per cent quota for the EWS is an unprecedented move, we need to reflect upon the unique role caste plays in our socio-economic fabric, and why it has been favoured over the economic criterion in deciding reservations.
Caste and reservations
When the makers of modern India sat to pen down the constitution of an independent India, they realised the need to give visibility to the diversity within its social landscape while at the same time levelling them out in an equal socio-economic strata. Caste, in this regard was a very important factor to be taken care of. While this unique social category had existed in the Indian subcontinent for centuries, the decennial census started by the British in the late 19th century had institutionalised it as the foremost social division characterising India.
Recognition of caste discrimination and the need to rectify the same was noted even before the Constitution of the country was framed. B R Ambedkar was the foremost pioneer of separate political representation for the lower castes. His vociferous efforts culminated in the allotment of separate electorates for the lower castes, now grouped under the name “Scheduled Castes”, in the Government of India Act (1935).
Thereafter the Constituent Assembly promised to transform India into a casteless society. The Constitution of India was framed around the ‘fundamental rights of citizenship’.Thus, rights were to inhere in an individual rather than any ethno-religious community. But keeping in mind the unique role that caste had played in historically discriminating against entire groups of people, it was also deemed necessary for the Constitution to recognise its existence, through provisions for the advancements of the scheduled castes and tribes.
The Constituent Assembly saw long and heated debates and discussion to decide upon the precise nature and duration of these provisions. P Kakkan of Madras had argued that “The government can expect necessary qualification or personality from the Harijans, but not merit. If you take merit alone into account, the Harijans cannot come forward.” Kakkan like many who were in favour of caste-based reservations also believed that such provisions should not exceed the period of 10 years.
There were others, however, who wished for a longer period of reservations. “the backward communities suffer from two disabilities, namely, social disabilities and educational disabilities. I want this reservation for 105 years which has been the period during which opportunities have been denied to them,” said T.Channaiah of Mysore. Sardar Patel and Nehru were among the few who also pointed out to the harm that the reservation system could cause. For instance, Patel was clear that the reservation system cannot be drawn on communal lines since it would conflict with the secular ideal of the democracy. “This Constitution of India, of free India, of a secular state will not hereafter be disfigured by any provision on a communal basis,” he had said.
Keeping in mind the needs of the lower castes, Article 46 of the constitution states that:
“The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
Further, Article 15 of the Constitution prohibited “discrimination on grounds of religion, race, caste, sex or place of birth”.
While the Constitution abolished the practise of any kind of injustice against the lower castes, it also gave special benefits to them in the form of reserved seats in public employment and privileged access to higher education. Article 15 (4) stated that “nothing thing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”. Further, Articles 330 and 332 make special benefits to these groups in forms of reservations in the Lok Sabha and the state legislative Assembly. In 1951, when the reservation privileges were being decided, the Census lists were utilised and the State came to the conclusion that 55.3 million people, that is, 20 per cent of India’s population, would be brought under reserved categories. In 1954 on the recommendation of the Ministry of Education, seats were reserved for SCs and STs in educational institutions and jobs in the public sector.
It is to be noted that when the constitution declared provisions for the upliftment of backward classes, the indicators of backwardness was ‘social’ and ‘educational’. The economic criterion did not feature anywhere as a measure of backwardness.
A significant development in India’s reservation system came in 1953 when the Kala Kalelkar Commission was tasked with listing out those castes and communities who are not under the SC and ST category but can be identified as socially and educationally backward. In its report, the Commission interpreted the term “socially and educationally backward classes as relating primarily to social hierarchy based on caste”.It identified 2,399 such communities. It also asked for reserving seats for these communities in educational institutions and government jobs. The term ‘other’ was added to distinguish them from the SCs, STs and Dalits.
However, the Kala Kalekar Commission report was not carried forward and in 1979 the Janata party government set up the Mandal Commission with the same objective. The commission headed by B P Mandal made an empirical assessment across 405 of 406 districts evolved 11 yardsticks covering social, educational and economic backwardness with social backwardness being assigned 3 points, educational 2, and economic 1 point. It submitted its report in 1980 listing out 3743 Hindu and non-Hindu castes and communities, which, according to the commission, was 52 per cent of the total population. The status of these communities differed across regions depending upon their social and educational standing in that area. For instance, the Banias are part of the OBC list in Bihar, but not so in other states. Further, the commission recommended 27 per cent reservations for these communities, which would be over and above the seats reserved for SCs and STs.
After a gap of about 10 years, the government headed by V P Singh decided to implement the Mandal Commission report and was met with widespread protests. After much chaos and conflict, the Supreme Court upheld the 27 per cent reservation of the OBCs subject to the fact that those who had advanced socially, educationally and economically from among them would be excluded from such a provision. “Creamy layer, thus, shall stand eliminated. And once a group or collectivity itself is found to have achieved the constitutional objective then it should be excluded from the list of backward class. Therefore, No reservation can be made on economic criteria,” said the Court in the historic ‘Indira Sawhney and others vs Union of India’ case.
Economically weaker sections and reservations
While it is largely caste that has always been the factor in determining the reservation policy in India, the Modi government’s move is not the first time that economically weaker sections have been thought of while determining quotas. In 1992, the Narasimha Rao led government at the centre had proposed a 10 per cent reservation based on economic status. However, Indira Sawhney and others vs Union of India’ judgement struck down the move and also put a cap on reservations not exceeding 50 per cent. The court noted that ‘backward classes’ as identified in the Constitution can only be decided on the basis of caste and not economic criterion. “Reservation for backward class seeks to achieve the social purpose of sharing in services which had been monopolised by few of the forward classes,” it said.
More recently, in 2008 Chief Minister V S Achuthanandan in Kerala decided to reserve 10% seats in graduation and PG courses in government colleges and 7.5% seats in universities for the economically backward among the forwards. An appeal is still pending in the Supreme Court. In 2011, the then chief minister of Uttar Pradesh, Mayawati had written to the central government asking for reservation for the economically weak among the upper castes. Further, in 2008 and again in 2015 the Rajasthan Legislative Assembly passed bills for a 14 per cent quota for the poor among the upper castes. However, none of these attempts have met with success yet.
Given the historical background of reservations in India, the Modi government’s move if implemented, will be an unparalleled turn of events. However, the legality of it remains doubtful. “The validity of reservation on the basis of economic backwardness in the absence of social backwardness, will depend on how many of the 11 yardsticks of backwardness laid down in Indra Sawhney for OBC reservation is satisfied by the Bill,” writes scholar of legal studies Faizan Mustafa in his column in the Indian Express.
In the absence of reservations for the economically weaker sections though, the government does provide welfare measures for them. Housing schemes, scholarships, health insurance are some of the provisions through which the government is expected to uplift those who fall in the category of economically weaker sections.