The government should end its embargo on caste data from the 2011 Census, and the Supreme Court should revisit its arbitrary limit of 50 percent on reservations.
The demand for reservations for Jats in Haryana received another setback earlier this month when the Punjab and Haryana high court stayed the implementation of the Haryana Backward Classes (Reservation n Services and Admission in Educational Institutions) Act, 2016 until March 2017. The court did so on the ground that the reservation of jobs and seats in higher education for six groups –Jats, Jat Sikhs, Ror, Bishnoi, Tyagi and Mulla Jats – had been made without any reference to actual socio-economic indicators suggesting that these categories of persons needed reservations by virtue of being “socially and educationally backward”.
The Haryana government’s attempt to rely on the K.C. Gupta Commission report came a cropper once again as the Supreme Court had refused to rely on it while setting aside central government reservations for Jats in Haryana. The high court has referred the matter to the Haryana Backward Classes Commission to carry out the necessary studies and collect the data to determine if the castes/classes identified are actually “social and educationally backward”.
Since the union government’s decision to implement the recommendations of the Mandal Commission on provision of reservations to “other backward classes” (OBCs), furious debates have raged over the years on who should get these reservations and how much. The Supreme Court’s judgement in Indira Sawhney’s case in 1994 ensured that these questions will be addressed with a modicum of reference to ground realities, and not just on the basis of the assertion of power by caste groups. The criteria evolved over the years to determine “social and educational” backwardness, the concept of the “creamy layer”, the limit of 50 per centon reservations, among other things are used to determine whether the reservations afforded a certain group meet constitutional parameters.
But are Jats, as a jati, socially and educationally backward as required by constitutional parameters?
A recent paper by Ashwini Deshpande and Rajesh Ramachandran, published in the Economic and Political Weekly, categorically demolishes this claim. On every parameter, including educational attainment, economic security, practice of untouchability towards others among others, Jats, along with Patels and Marathas (who have also demanded reservations) are closer to Brahmins than other OBCs, let alone Scheduled Castes and Tribes. Jats, as a jati, are by no means “socially or educationally backward” by any understanding of the term to merit favoured treatment in the matter of government jobs and educational seats.
If this data is confirmed by the Haryana Backward Classes Commission, the law providing reservations to Jats is likely to be struck down as unconstitutional.
If data can be used to legally turn down the demands of Jats and other such castes for reservations, can the converse claim be made? Can a community or caste make a legal claim in court for inclusion into the category of Scheduled Caste, Scheduled Tribe or OBC? Can these groups classified thus, demand a higher quantum of reservation?
While the government can include other castes, courts have consistently said that it is not within their powers and competence to direct the government to include certain castes and communities into the list. The Constitution gives only the government the power to include castes and communities in the relevant list. However, the flaw in this methodology has been that thus far, the government has been relying on the numbers provided in the 1931 census to determine the quantum of reservations. Likewise, there’s an arbitrary cap of 50 per cent placed by the Supreme Court on the quantum of reservations.
This, therefore, is the Catch-22-ish paradox of the reservations debate in India: The percentages are set based on 1931 data, inclusions are not possible unless the data suggests social and educational backwardness. But even if there is social and educational backwardness, there is no guarantee of reservations. Any claims for deprivation and backwardness must be made on the basis of the latest data, but the limits of such claims will be determined on the basis of 1931 data.
Unfortunately, this impasse is likely to continue for a while. Two things need to happen for this to change: the union government should end its embargo on caste data from the Socio-economic and Caste Census of 2011, and the Supreme Court should re-visit its arbitrary limit of 50 per cent on reservations.
While data from the SECC has been released in dribs and drabs over the years, the heart of the matter, the caste-related data is still under wraps. Conspiracy theories float on this data being the key to the BJP’s success in elections post-2014, but the fact remains that a key element of ensuring social justice, access to quality socio-economic data has been stymied for no apparent rhyme or reason.
While claims made by dominant castes for reservations of seats and jobs tend to get more coverage, it also pushes to the side the need to take a serious re-look at the way in which reservations may not be performing the function of ensuring parity between classes. The conversation we are having about reservations is not the one we should be having.
Alok Prasanna Kumar is a Senior Resident Fellow at Vidhi Centre for Legal Policy
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