The Ghost Of Mandal- Part 2
The second and concluding part of our series analysing the debate around reservations and the effects of the Mandal Commission.
Constitutional Basis for OBC Reservations
Predominantly, rather than identification and application through thorough research and legislation, the social mobility mechanisms in most states provide for benefits to identifiable groups based on distinctions of race, linguistic ancestry, regional belonging or as is the case in India, on the basis of caste and jati. Inevitably, this classification of groups as backward, the methods adopted for this purpose as well as the literature by which classification is done, is a topic of heated debate.
Often such classifications have been used for political/electoral purposes within democracies. The classification of groups in India under the banner of ‘Other Backward Classes’ is one such example wherein liberal democratic principles of a welfare State have been used to perpetuate political agendas.
To understand the OBC reservations, it is necessary to understand the constitutional framework it exists within. As per the legally enforceable fundamental rights, Article 15 and 16 of the Constitution of India prohibit discrimination on the grounds of religion, race, caste, sex or place of birth and provide for equality of opportunity in matters of public employment. The caveat to this is the exception intertwined within those articles, which provides that the State can make special provisions for the advancement of any socially and educationally backward classes of citizens.
The ‘recommendatory’ in nature but now indirectly enforceable, directive principles in Article 38 and 46 of the Constitution of India, place a duty on the State to secure a social order by eliminating inequalities and promoting the educational and economic interests of the weaker sections of the population. These socially and economically backward classes are to be differentiated from the Schedule Castes and Schedules Tribes.
Articles 341 and 342 of the Constitution of India included a list of castes and tribes entitled to such provisions and the castes, and the tribes included in these two lists were known as Scheduled Castes (SC) and Scheduled Tribes (ST) respectively. The OBC reservations find its genesis in Article 340 of the Constitution of India which provides for the appointment of a Commission “to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose”.
While there were references in the Constitution of India to an undefined wider category of ‘depressed’ or ‘socially and educationally backward classes of citizens’, the identity of these groups as ‘other backward classes’ or OBCs was left unclear. This meant that post-independence, the castes and tribes identified as SC/ST’s within the Schedule of the Constitution of India could participate in the affirmative action scheme of the Indian welfare state.
At this juncture, it is necessary to separate the scheme of SC/ST affirmative action with respect to the OBC scheme highlighting the constitutional difference between the two. In light of the ideological support to the concept of positive discrimination, there have been multiple references in the media for the extension of, such discrimination to the groups classified as OBC without ascertaining the legal and the practical difference between the two groups.
Considering the constitutional difference between OBCs and SC/STs as the clear mention of the word caste/tribe in the latter and the intentional use of the word ‘class’ in the former, the classification of the ‘backward classes’ on the basis of caste has often been questioned. The legal and the logical basis on which the SC/ST’s have been granted the benefits apparently stems from the constitutional assumption of social, economic and educational backwardness culminating in blocking of opportunities of upward social mobility, while clearly listing their identification on the basis of caste/tribe and providing a separate Schedule for the same.
But the constitutional basis of the benefits for the OBC’s markedly omits the use of the word caste and rather refers to a larger social connotation as ‘socially and educationally backward class’ and further mandates that the State must identify the same, investigate their conditions and make policy for their betterment.
The first attempt at defining these ‘socially and educationally backward classes’ was done by the Janata Party Government, which set up the Mandal Commission. The Mandal Commission used eleven social, economic, and educational indicators to determine backwardness within various castes. In its application, these criteria vary from State to State and even from region to region.
The classification was based on Social, Educational and Economic criteria (referred to A, B and C respectively) with decreasing order of importance. This provides a 22 point system with social factors providing 12 points (3 x 4), educational factors 6 points (2 x 3) and economic factors 4 points (1 x 4). The cut off was 11 points and classes that were given 11 points or higher were designated as OBC and were eligible to avail of the network of benefits provided.
Defined thus, OBC must ideally be a dynamic notion. For instance, if a community X improves dramatically in social, economic and educational indicators, it should cease to be classified as OBC. Unfortunately, the statistical exercise for the same is a nightmare in India and has not been done ever since 1931. The recent caste census data has not yet been made public and once it, a political storm, perhaps bigger than Mandal, awaits.
Assuming but not conceding that the above mentioned procedure is the best to ascertain backwardness of groups as OBC, there is a need for constant revision on the basis of periodic statistical studies of demographics of the region. Alarmingly, the data studied by the Mandal Commission and the revisions after it have been done on the basis of shoddy outdated data. The Mandal Commission based its evaluation on the percentage of population in different caste categories by using the 1931 census figures and arrived at a figure of 52% as the size of the OBCs in the total population.
An oft-cited limitation of statistics is that they can be moulded as per the whims of the surveyor and analyzer. If one uses the 52% OBC figure and applies it to the 2001 census data, the SC, ST, OBC, Muslims and Christians population would account for a ludicrous 92.1% of the total population. Besides this, Sikhs, Buddhists, Jains constitute 3.1% (1.9%, 0.8% and 0.4% respectively) and would place the forward caste figure at roughly 5%, which is absurd. This leads us to the reasonable conclusion that the Mandal Commission’s figure of 52% is unreliable and an over-estimate.
A more reliable figure would be provided by the NSS 1999-2000 and 2004-2005 surveys which put the overall OBC figures at 35.7% and 40.1% respectively. Out of those figures, roughly 5% would be the Muslim OBCs which places the Hindu OBC population between 30-35% for the country as a whole. Working through the arithmetic suggested by these figures, a fair estimate of the percentage of upper castes in the population appears to be a little more than 30%. The foregoing analysis is an example of how the numbers relied upon by the Mandal Commission were completely outdated, and more importantly, it underlines the importance of accurate and reliable data collection and data analysis methods.
The decreasing of priority provided in the Mandal Commission’s 22 point formula has been challenged consistently by various scholars providing models like the JNU Model, Purushottam Agrawal Model, Deshpande and Yadav Model, Sacchar Committee Model among others. Without examining the alternate model, if we have a look at the Mandal Commission model with highest priority to social factors and lowest to educational, it seems largely lopsided with the original aims of upliftment enshrined in the Constitution and out of sync with the benefits provided therein. Economic condition is the most unbiased, objective and logical criterion which provides a clearer picture of the stratification in any society.
Even though the constitutional intent of Article 340, seems to be prioritising social conditions and education, economic conditions and the amelioration thereof must form the bedrock through which social and educational upliftment would be viable pragmatically. In a modern democratic society with rule of law and strong fundamental rights system, the social and educational factors are largely dependant on economic conditions.
Economic condition, in any modern society, is the biggest empowering factor which opens up countless opportunities. Moreover, for any liberal democracy to function fairly, equality of opportunity is foremost rather than equality of the result or outcome of the opportunity provided. To make the most of the opportunity provided, the State must endeavour to prioritise education and equalise social conditions.
The economic conditions and the lack of decent education amongst a group must, by default, be the most important criterion, with the maximum point allocation, for any group to be referred to as backward. Social mobility, in its core theory is roughly considered a product of two E’s that are, education and economic condition.
Even the Supreme Court, in the Jat judgment, while elaborating on the concept of ‘backwardness’ stated that it is a manifestation caused by the presence of several independent circumstances, which may be social, cultural, economic, educational or even political. It further stated that an affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which has been constitutionally provided.
The reference to transgenders as a backward class in a previous judgment provided an opportunity for the Court to expand its horizons in the understanding of ‘backwardness’. The Court explained that a social class is an identifiable section of society, which may be classified on the basis of caste or occupation or on the basis of disability or gender.
But politically, even the Left parties, which must recognise class inequality as a matter of philosophy, seem to have capitulated to the idea that Caste, rather than class, is the only form of inequality in India. Unfortunately the aim of the objective assessment of economic inequalities is being ignored by the political parties.
Most Backward Classes and the Economically Backward Classes?
Further, the MBCs (Most Backward Classes) and the Economically Backward Classes the EBCs, who deserve the benefit of reservations are denied so by the upper class amongst the OBCs. It is alleged that the only Dalit member of the Mandal Commission refused to sign the Mandal Commission recommendations as his suggestions were rejected. Similarly, the EBCs, established by the Modi government to help the poor among the upper castes represent economically backward classes amongst the upper classes.
These EBCs are the ones which do not come under the ambit of the OBC system even after being backward which results in a complete neglect as opposed to the MBCs which may have at least some representation within the larger OBC umbrella. The Constitution is consciously silent on the concept of EBCs and hence, the need for amendment to clarify the mater is required. The decision of the Rajasthan Government in this regard is borne out of the misconceived exclusion of a particular class which is economically backward. The political reasons and triggers behind this decision obviously exist, but they don’t undermine the rationale behind it.
It may not be technically and legally tenable in the Courts, but the Supreme Court has done its bit in urging for reforms in the system through legislative means. A point to be noted her is that the Patidar Patel movement, at it core is just a movement to demand reservation, rather it very frequently points towards the failure of the current system and the exclusion of the MBCs and the EBCs.
As far as the MBC are concerned, if the traditional economic class analysis of OBCs is studied, it would be noticed that they consist of two larger occupational blocks of the Upper Backward Classes and the Most Backward Classes. It has often been argued that the Mandal quota should be split into two in order to safeguard the interests of the MBCs. Also, there is no constitutional bar to a state categorizing the backward classes as backward and more backward. It is to be noted that the Supreme Court quashed the order of the Jharkhand Government which amalgamated upper backward classes and most backward classes for the purpose of reservation.
It stated that the amalgamation of two different classes of people for reservation and treating them similarly is in violation of Article 14, which mandates equality among equals and inequality among unequals.
To understand this further, assume that the OBCs of a state consist of 3 castes X, Y and Z. Caste X and Y are on 11 and 12 points respectively on the 22 point scale and Z is on 20. No since X, Y and Z are all categorized in one group classified as ‘OBC’, it is the groups within X and Y that would acquire the most benefits as avail the benefits within our affirmative action system, a minimum level of exposure and mobility is already required.
The problem of the MBCs brings us to the policy issue of the backwardness-benefits relationship within the system. The benefits that are provided to the people of a caste once classified as OBC are traditionally Government jobs, seats in Government sponsored institutions and other benefits like scholarships, rewards, special programmes, etc. Most of these benefits require prior qualification or a certain degree of social/educational or economic standard to avail of them which makes the system highly dependent on prerequisites. These benefits are not able to penetrate the invisible ‘class’ ceiling operating within these castes to go deeper and provide the benefit to those classes within the OBCs which are truly ‘backward’ and on the basis of whom, the OBC status was granted in that particular caste in the first place.
Consider X, which was on 11 points on the scale, fulfills one social, two educational and 4 economic criterion to be classified as OBC. About 60-80% of X’s population lives in abject poverty in kuccha houses, potable water problems, in deep loans with little family assets with levels 30-40% below the State average . Further this 60-80% of population has low literacy levels and traditions of child marriage. On the basis of the backwardness of these 60-80% population, the X community/caste as whole was granted the OBC status. Due to the lopsided nature of the benefit distribution system, this 60-80% population of X, which forms the core of its classification as OBC is never able to avail of the benefits that were granted to X caste as a whole.
It is the remaining 20-30% population, which was already living in decent conditions with pukka houses, enough potable water, above average economic conditions with relatively high literacy rates and no cases of child marriages, which hogs and squats on all the benefits as they are in a better position to avail them.
Consequently, this becomes a cycle with the kin/offspring of these 20-30% population availing of the benefits to increased exposure and better economic conditions. The application of the ‘creamy layer’ rule, which excludes certain categories of persons and persons with an annual income of more than 6 lakh rupees, has made the applicability more efficient but doubts remain over the numerous loopholes the concept of creamy layer has left over.
This argument is applicable to all sections availing of such benefits, whether it is the OBCs, the MBCs, the SCs or even the STs. To overcome this, there have been murmurs of the imposition of the generation rule, which limits the benefits to 2-3 generations within a family and making the ‘creamy layer’ rule stricter and more effective.
The report of Mandal Commission has become the biggest political quicksand in independent India’s history in which almost every political party found itself, mostly out of blatant short term electoral advantage it provided and the safe vote banks it created for them. It is the harbinger of what is called caste politics or votebank politics.
Since the time the report was tabled for the first time, it has been the mouthpiece of the dominant upper OBCs. It is the sole rallying point of the other disjoint caste discourse in politics.
Jats in Haryana, Yadavs in Uttar Pradesh and Bihar, Patidars in Madhya Pradesh and now Patidar Patels in Gujarat have all gathered momentum in their social mobility through Mandal politics. More recently, these numbers and the dole of the OBC classification has been used as blackmail with varying legal, political and electoral results.
The massive outreach of such micro political projects wherein public disruption and destruction of public property becomes the norm, amounts to political blackmail. The evidence that such micro political projects are tools of political leverage can be seen from the long-term electoral shifts in state politics.
The irony of Indian affirmative action scheme is that, communities rally together to project themselves as backward. From an unemotional perspective, self-imposed backwardification in the social strata, apart from being legally and rationally shallow, is somewhat hilarious. There is something inherently contradictory in an affirmative action system which depends on the electoral prowess of a community rather than its objective backwardness. The political mobilization of communities to seek such benefits not only challenges the basis of the basic theory of social mobility but also reinforces the change-averse nature of Indian politics.
The affirmative action regime was supposed to provide the backwards some degree of catharsis; instead it has become nothing more than a political tool used to perpetuate electoral benefits or sometimes, minimize electoral losses. The need for reform of the system is imminent and if ignored, the system will keep propping up more Col. Bainslas and Hardik Patels.
But, a political flipside to Mandal might be taking birth these days. The target or the reason for Patel agitation and Rajasthan EBC quota is allegedly the simmering dissatisfaction with the existing affirmative action system and especially with the Other Backward Classes reservations and quotas. One of the often neglected premises of these agitations is that they stem from the larger belief among the agitating group that the communities/castes which are receiving the benefits of affirmative action system, do not deserve it. Such belief may be justified or not, but its existence is certain.
If one analyses the OBC numbers in the Lok Sabha, it jumped from 11 per cent to 21 per cent in 1989 when the Report was just approved and continued to grow in the post-Mandal phase until 2004, when it peaked at 26 per cent.
Numerous theories from KHAM in Gujarat, Rajasthan and Madhya Pradesh to the M-Y axis in UP and to some extent in Bihar have served various political parties in past. To be fair, the Mandal movement started as an anti Congress movement and most leaders occupied power in these states on the basis of their caste stronghold and a degree of anti incumbency against the Congress in the earlier Mandal Era. Lately, the Congress has been largely marginalized in these States and the political space is shared by regional/Mandal parties and the Bhartiya Janta Party.
The 2009 and 2014 general elections marked a reversal of the trend, with the OBC representation stagnating at around 20 per cent. So the OBCs after having occupied the prime spot in the cow belt politics for almost 2 decades are now at a critical juncture. The class dynamics post the 1990’s liberalization have considerably changed the economic demography of the country with that having a trickle down effect in creating an aspirational class free from the baggage of caste and the post independence Nehru-Gandhi propaganda.
During this period, an unprecedented growth of the neo middle classes, particularly in small towns and also in rural areas has challenged the traditional politics of pragmatism which suffers from change-phobia. This class dynamic and social engineering through an economic agenda has not only decreased social differentiation between groups but made serious inroads in the caste bastions of the Mandal politicians.
Voting patterns among OBCs in India at large show that these groups no longer vote as cohesively as they used to. According to the CSDS-Lokniti National Election Survey 2014, richer OBCs have voted for the BJP more than poorer OBCs (37 per cent against 28 per cent). In Uttar Pradesh, poorer Yadavs have stayed faithful to the Samajwadi Party (82 per cent), but the higher the class, the more Yadavs shifted towards the BJP. In 2014, 32 per cent of “lower class” Yadavs voted for the BJP, as against 49 per cent for the SP.
While there have been suggestions in some quarters that such an evolution shows that OBC politics ceases to be effective, the final judgment over the matter has to be reserved. If the numbers are studied more closely, it is not the Lok Sabha Elections where the OBC politics has been most effective, rather it is the State politics, where caste has played a predominant role.
Such is the magic of time that most of Mandal politics is now done against the BJP, with these Mandal leaders flipping sides to protect their turf and maybe hoping to cash in on the ‘secular’ vote. For these reasons, the Bihar Elections represent a very critical juncture in India politics. These elections will most probably be a verdict on the future of Mandal politics in the country.
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