FACTS ABOUT RESERVATION WHICH ARE IGNORED (1)- P. S. KRISHNAN

In the midst of the confusion created by the largely uninformed discussion in the TV Channels and the print media, following the agitation of the Patidars or Patels of Gujarat, it is necessary to make all people in the country, intellectuals like Surjit Bhalla and Indira Hirway, as well as people in general, aware of a few essential basic facts and correct certain common errors.

COMMON ERRORS OFT-REPEATED BY EMINENT KNOWLEDGEABLE PERSONS

(a) Reservation in this country was started by vote-hungry politicians;

(b) Reservation was, as stated by K. N. Bhat, former Additional Solicitor General of India, in his article titled “Divide and Serve” in Asian Age dated 4. 9. 2015, “invented by the divide and rule policy of the British”;

(c) Reservation was started after the Constitution of India 1950;

(d) Reservation was, as asserted by Joginder Singh in his article Pandora’s Open Box of Caste-Based Reservation in Pioneer dated 7.9.2015 with confidence matched by ignorance, provided in the Constitution only for Scheduled Castes (SCs) and Scheduled Tribes (STs), and subsequently extended to “the rest”, i.e., the Socially and Educationally Backward Classes (SEdBCs) / Other Backward Classes (OBCs) / Backward Classes (BCs) (hereafter referred to as BCs), by politicians like V.P. Singh and Arjun Singh in the 1990s;

(e) The root of Reservation, as again asserted by Joginder Singh in the same article as mentioned above, is traced back only to the Mandal Commission, established in 1979;

(f) The Constitution recognizes only SCs and STs and does not recognize BCs.

(g) The Constitution does not provide for Reservation for BCs.

(h) The Constitution provides Reservation only for 10 years as misunderstood latest by Indira Hirway (“Rethinking Reservation and Development”, The Hindu, 31.8.2015) and by many other scholars before her and by many learned anchors and commentators on the TV channels.

None of the above is factually true.The confusion in the minds of eminent persons is illustrated by K.N. Bhat attributing Reservation to the “divide and rule policy of the British”, while Joginder Singh asserts with equal self-assurance that “the programme of divide and conquer was taught to the Britishers by the Indians”.There are also certain other basic errors pertaining to BCs such as the nature of the BC lists and the place of religious minorities vis-à-vis the BC lists. These will be discussed and clarified lower down.

CORRECT BASIC FACTS

(i) Reservation was first started in Kolhapur by the initiative of the Maharaja of Kolhapur in 1902.
Next it was introduced by the Maharaja of Mysore in his Princely State in May 1921.
The third in the line was the Madras Presidency (which included the present Tamil Nadu, the present Andhra Pradesh, the northern part of Kerala and certain parts of the present Karnataka) where it was introduced in September 1921 by the Justice Party which came to power in the Province on the plank of curbing the then existing Brahmin monopoly.

Next was the Bombay Presidency in 1931.

Next came Travancore where the Maharaja introduced Reservation in 1935, followed by the Maharaja of Cochin.

Thus, before Independence the whole of the peninsula was covered by Reservation.

This Reservation was for Backward Classes defined to include not only those who subsequently came to be known as the Scheduled Castes and Scheduled Tribes, but also many of those who are now included in the list of Socially and Educationally Backward Classes.

Reservation was introduced, largely by the initiatives of socially sensitive rulers of Princely States in response to local social reform movements directed against caste-based monopolies and to secure a reasonable share in governance and administration for those who had been kept out.

Elementary Constitutional literacy will inform that there are specific Articles which recognize the BCs such as Article 340(1), Article 15(4), Article 16(4) (along with SCs and STs), etc. and provide Reservation for them.
A time-limit of 10 years was prescribed by the Constitution only for Reservation of seats in elections to the Lok Sabha and State Assemblies.

A common error of opinion is that Reservation is at the cost of the merit. This biased opinion is disproved by experience.

The peninsular States are ahead of the States in the rest of India in all parameters of development and welfare. This is not accidental. An important contributory causatory factor is the bringing in of a larger part of the population into governance, administration and education through Reservation in response to social reform movements in the peninsular States – a process that suffered considerable delay in the rest of India.

(ii) At the national level, Reservation was introduced for the SCs through the initiative of Dr Babasaheb Ambedkar in 1943. With his wisdom, he foresaw that those in whose hands power would effectively reside in post-colonial India would be averse to providing Reservation and other measures required for the SCs and, therefore, he joined the Viceroy’s Executive Council as Member (a fact that Arun Shourie’s misses in his book Worshipping False Gods), convinced the Viceroy against counter-advice by certain other members and secured Reservation, Post-Matric Scholarship (PMS) scheme and Overseas Scholarship Scheme for SCs, which could then be automatically extended to the STs on attainment of Independence.

Dr Ambedkar knew that the BCs too had a case and was prepared to help them. But, for certain reasons of tactical error (details later), the then BC leaders could not take his help, missed the pre-Independence bus, and consequently had to wait till 1990.

(iii) Dr Babasaheb Ambedkar’s initiative of 1943 ensured continuation of Reservation after Independence under the Constitution.

THREE CATEGORIES OF RESERVATION

There are three categories of Reservation –

(a) Reservation in the posts and services of the State (including Public Sector Undertakings, Public Sector Banks, Universities and other entities which come under the rubric of “State” under Article 12 as interpreted by the Supreme Court)

(b) Reservation in admission to seats in educational institutions, and

(c) Reservation of seats in elections to the Lok Sabha and State Assemblies, usually referred to as “Political Reservation”.

It is only the Reservation at (c) which initially had a 10 year time-limit.

Reservation at (a) and (b) had and have no time-limit. Many scholars and anchors confuse Reservation at (c) with Reservation at (a) and (b), for which there is no time limit. It means that Reservation in the services and educational seats can and should continue as long as necessary for fulfilling the purpose for which the regime of Reservation was established in this county well before pre-independence days continuing after Independence and under the Constitution.

PURPOSE OF RESERVATION

Reservation was never intended as a measure for poverty elimination or poverty alleviation.

Reservation was never intended as a measure to solve unemployment.

Reservation was intended to correct an imbalance in the structure of governance and administration and the supporting structures of education and electoral seats, that had come into existence on account of the gross imbalances and distortions created by the Indian Caste System, i.e., Caste System-with-“Untouchability” over the centuries continuing to the present day (without change in essence though with some quantitative attenuation and marginal modification).

Consequent to the imbalance and distortion created by the caste system, including denial by various means – including physical violence against Dalit children, who were waylaid on way to school, beaten up and driven back home, as recorded in the Report of the Hunter Commission 1882, there was nil or negligible presence of what are now categorized as Scheduled Castes and Scheduled Tribes and Backward Classes and in some regions even from upper caste non-Brahmins in the services of the State. The State services were thus nearly monopolized by Brahmins in some regions or by Brahmins in combination with certain non-Brahmin upper castes like Kayasthas, Karans, CKPs, Khatris, Vaishyas/Banias, Rajputs/Thakurs, Kammas and Reddys, Nairs, Nattukkottai Chettiars, Vellalas. It is this distortion that the vast majority of the people peacefully agitated against and the Maharajas of Kolhapur, Mysore, Travancore and Cochin and the elected Indian rulers of the Justice Party in Madras responded.

FOR WHOM CONSITUTITON PROVIDES RESERVATION

The Constitution provides Reservation for only three social classes –

(a) Scheduled Castes (SCs), now popularly known as Dalits

(b) Scheduled Tribes (STs), now popularly known as Adivasis

(c) Socially and Educationally Backward Classes (not Socially and Economically Backward Classes as trotted out by many scholars and learned TV anchors and commentators) – referred to in different States as Socially and Educationally Backward Classes or as the Other Backward Classes or as the Backward Classes (BCs).
Reservation cannot be provided under the Constitution for any other social class. Apart from social classes, Reservation can be provided for categories which can be rationally classified, e.g., the women, the physically handicapped. These categories cut across the social classes. Reservation for them is characterized by the Supreme Court as “Horizontal Reservation” while the Reservation for the three social classes is characterized as “Vertical Reservation” in the Mandal case judgment.

The Constitution does not provide and does not permit Reservation for the “Poor” or the so-called spurious “Economically Backward Classes” (no such class is recognized by the Constitution. Some Governments have coined this term to make it look like a Constitutional category). Poverty not preceded by and not consequential to social backwardness (or “Untouchability” or isolation under vulnerable conditions) is no ground for allowing Reservation as seen from a reading of the Constitution and as amply clarified by the Supreme Court’s landmark Mandal case judgment.

HOW HAVE THE THREE SOCIAL CLASSES BEEN IDENTIFIED AND HOW ANY CHANGE IS MADE

(a) Scheduled Castes

SCs have been identified and specified on the basis of “Untouchability”, i.e., castes, on which has been imposed “Untouchability”, have been listed as Scheduled Castes by a series of Presidential Orders.
Any addition, deletion, modification in any of the entries in the Schedules can be made only by the Parliament by law. “SC status” is not a largesse to be handed over by any Government or leader or Party to any community at will.

If any community, which is not in the existing lists of SCs, wants to be included in the Schedule of SCs, it must show that it is the victim of “Untouchability”. This factum must be established with evidence by the concerned State Government and then will be enquired into by the anthropological wing of the Registrar General of India.
Only when both of them record with evidence the factum of “Untouchability” of a community and the concerned Ministry (now the Ministry of Social Justice & Empowerment) is also convinced, can the matter be taken forward to the Parliament through legislation.

No State Government can declare by Executive Order or by law any community to be a Scheduled Caste.

(b) Scheduled Tribes

STs have been identified and specified on the basis of a group of characteristics which can be collectively described as isolation under vulnerable conditions.

The procedure for adding a community to the list of STs is the same as for SCs.

While an SC can be a caste or a tribe or a sub-caste or part of a caste or tribe, a Scheduled Tribe cannot be a caste. A community seeking inclusion in the Schedule of Scheduled Tribes for any State should first show that it is a tribe, and then show that it fulfills the criteria for a tribe to be included as a Scheduled Tribe.
Demands are sometimes being made and recommended by certain State Governments in certain cases for inclusion in the list of SCs and STs even when they know that the criteria are not fulfilled, and even with the full knowledge that the recommendation cannot be and will not be accepted and acted on. This is less than honest.

(c) Socially and Educationally Backward Classes

BCs have been identified on the basis of social backwardness as well as educational backwardness. It is not social backwardness or educational backwardness, but both.

The BCs include Socially and Educationally Backward Classes not only of Hindus, but also of Muslims and Christians. Eminent persons like Manish Tewari assert that the “Indian template of affirmative action……… leaves out of its ambit religious minorities” (Manish Tewari, “Regression for Progression”, Asian Age, 5.9.2015). This is based on ignorance. Castes / communities of Muslims accounting for about 75 to 85 percent of the population of Muslims of India have been included in the list of BCs, and castes and communities accounting for the bulk of the population of non-ST Christians have also been included in the list of BCs. A relatively small proportion of Sikhs have also been included in the List of BCs. Though SC converts to Buddhism were included in the list of BCs recommended by the Mandal Commission, they were not recommended for inclusion by the Expert Committee on Backward Classes of 1992 and consequently were not included by the Govt. of India in the Central BC because they were recognized as SCs in 1990. Jains are not included because, as everyone knows, they belong to one Socially Advanced Caste (SAC). Zorastrians or Parsis are not included because they are the one small fortunate religious community of India which is free from the caste system.

A caste or community, which is not in the existing lists of BCs, and seeks recognition as a BC and inclusion in a BC list, must establish its eligibility in three steps:-

First step

First the applicant community must establish, that it is “socially backward”.

The term social backwardness is not correctly understood. It is not a factor that is measurable arithmetically or statistically. Social backwardness describes the low position of a caste in the traditional hierarchy of the traditional social system of India, known as the Indian Caste System, existing over the centuries to this day.
Usually, socially backward communities are linked to a traditional occupation, which is considered to be inferior or “lowly” and sometimes even stigmatized. Dr. Ambedkar speaks of a hierarchy of occupations in the Indian system paralleling the hierarchy of castes.

If a caste or community is not established to be socially backward, the next two steps would not arise. If a caste is found to be socially backward, the examination proceeds to the second step.

Second Step

After a caste is shown to be socially backward, in order to be recognized as a socially and Educationally Backward Class and to be included in the list of Socially and Educationally Backward Classes, it should next be show that it is also educationally backward. This is not a matter only of literacy and differential literacy levels. The educational level of comparison has been steadily going up. In the Central Educational Institutions Reservation case judgment (Ashoka Kumar Thakur vs Union of India) of 2008, the Supreme Court has observed that the appropriate level for comparison under present conditions is graduation. In other words, at the level of graduation and above, including professional education, it must be shown that a caste or community seeking recognition as BC ranks significantly lower than the Socially Advanced Castes (SACs) of the State/country.

It is virtually impossible to find a caste which genuinely is socially backward, but is also not educationally backward. In other words, a genuinely socially backward caste will also be educationally backward. If caste is not educationally backward, its claim of social backwardness must be scrutinized very carefully as a caste not educationally backward is extremely unlikely to be socially backward. The converse is not true. Every caste that is educationally backward, is not necessarily socially backward. There are sub-castes of certain well-known Socially Advanced Castes which are relatively backward educationally. That is why the Constitution has wisely insisted that, for the purpose of the Constitution, backwardness has to be both social as well as educational.

On passing these two steps, the third step arises in the case of Reservation of appointments and posts in the services under the State.

Third Step

A caste which is socially and educationally backward, must also be established to be not adequately represented in the appointments and posts in the services under the State for it to be eligible for Reservation in the posts and services of the State under Article 16(4).

It is virtually impossible to find a caste which genuinely is socially and educationally backward but which is adequately represented in the appointments and posts in the services under the State. But the converse is not true. Every caste or community which is not adequately represented in the posts and services of the State is not necessarily socially and educationally backward.

CENTRAL LIST OF BCs AND STATE LIST OF BCs

In the case of SCs and STs, there is a single list or Schedule of SCs for each State. That list or Schedule of SCs for each State and Schedule of STs for each State was first issued by the President of India. Thereafter, any change in the Schedule could be and can be made only by Parliament through legislation. State Governments cannot issue Schedules or Lists of SCs or STs for the respective States or make any change including additions or deletions in the Schedules of SCs and STs as issued by the President of India with any modifications made by Parliament through legislation.

Unlike this position relating to SCs and STs, in the case of BCs there is a Central List of BCs for each State; and there is also a State List of BCs issued by each State listing the BCs of that State. The cause of the dichotomy will be discussed in detail in one of my forthcoming books, but briefly is rooted in a historic evasion of its Constitutional duty to BCs by the Central Government in 1955.

It is not correct to say that there are only State lists of BCs and there is no Central list of BCs as asserted by Zakka Jacob, the anchor of the CNN-IBN channel on 2. 9. 2015 with self-assurance matched only by his ignorance, in a panel discussion where other panelists except one were also ignorant of this basic fact. The two lists, the purposes of each and the procedure for inclusion in each are outlined below. It is also to be clarified that the two lists are mostly the same for most of the States. Only in the case of very few States, particularly, Tamil Nadu and Karnataka, for historical reasons (which will be explained in one of my forthcoming books), there are a few differences – certain castes in the State list are not included in the Central list for valid reasons (which will also be elucidated in a forthcoming book). In the case of other States divergence between the State list of BCs and the Central list of BCs for each of those States is absent or marginal.