Baba’s Explainer – Caste System in India [PART II]

Mandal Commission: The Second Backward Classes Commission, famously known as the Mandal Commission, was set up in 1979 to determine the criteria for defining socially and educationally backward classes.

• OBC Reservation: The Mandal report identified 52 percent of the population at that time as ‘Socially and Economically Backward Classes’ (SEBCs) and recommended 27 per cent reservation for SEBCs in addition to the previously existing 22.5 per cent reservation for SC/STs.
• Challenged in Court: The then V P Singh led-Central government wanted to implement the Mandal Commission report in 1990, but it was challenged in the Supreme Court. The verdict in the Indira Sawhney case, which came up before a nine-judge bench, was delivered in 1992.
• Celling on Reservation with exceptions: The pronouncement in the Indra Sawhney v Union of India fixed a cap of 50 percent reservation. The Court had, however, said that the cap can be breached under exceptional circumstances.
• IR Coelho Case: In this case, SC delivered a unanimous verdict upholding the authority of the judiciary to review any law, which destroy or damage the basic structure as indicated in fundamental rights, even if they have been put in 9th schedule.

• The creamy layer concept was introduced in the Supreme Court’s Indra Sawhney judgment, delivered by a nine-judge Bench on November 16, 1992.
• Though it upheld the government’s decision based on the Mandal Commission report to give 27% reservation to Other Backward Classes, the court found it necessary to identify sections of Backward Classes who were already “highly advanced socially as well as economically and educationally”.
• The court believed that these wealthy, advanced members form the “creamy layer” among them.
• The judgment directed State governments to identify the “creamy layer” and exclude them from the purview of reservation.

Need for identifying creamy layer

• In Jarnail Singh versus Lachhmi Narain Gupta, 2018 case, Justice Nariman said unless creamy layer principle was applied those genuinely deserving reservation would not access it.
• He further observed that the creamy layer principle was based on the fundamental right to equality.
• Benefits, by and large, are snatched away by the top creamy layer of the ― backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.

How is the creamy layer determined?

• Certain States like Kerala did not promptly implement the above SC directive (identifying Creamy layer & excluding them). This led to a sequel of the Indra Sawhney-II case, reported in 2000.
• Here, the court went to the extent of determining “creamy layer” among Backward Classes.

• The judgment held that persons from the classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status, and therefore, were not entitled to be treated as backward. Such persons were to be treated as “creamy layer” without any further inquiry.

• Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and treated as “outside the Backward Class”.
• Other categories included persons with higher agricultural holdings or income from property, etc.
• Thus, a reading of the Indra Sawhney judgments show that social advancement, including education and employment, and not just wealth, was key to identify “creamy layer”.

Why is identifying creamy layer solely on economic criterion not feasible?

• The identification has been a thorny issue. The basic question here is how rich or advanced should a Backward Class section be to invite exclusion from reservation.
• In other words, it is question of “how and where to draw the line” between the deserving and the creamy layer becomes challenging when economic criteria is the sole basis of identification.
• Justice Reddy in the Indra Sawhney judgment, highlighted the pitfalls of identifying creamy layer merely on economic basis.
  • For example, a person who earns ₹36,000 a month may be economically well-off in rural India. However, the same salary in a metropolitan city may not count for much.
  • A member of Backward Class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If we take his annual income in Rupees, it would be fairly high from the Indian standard. There is dilemma whether he is to be excluded from the Backward Class when only economic criteria is considered.
• Justice Jeevan Reddy pointed out “The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement.”

102nd Constitution Amendment Act

• 102nd Constitution Amendment Act, 2018 provides constitutional status to the National Commission for Backward Classes (NCBC) (earlier it was statutory body)
• 102nd Constitution Amendment Act inserted new Articles 338 B and 342 A.
• Article 338B provides authority to NCBC to examine complaints and welfare measures regarding socially and educationally backward classes.
• Article 342 A empowers President to specify socially and educationally backward classes in various states and union territories. He can do this in consultation with Governor of concerned State. However, law enacted by Parliament will be required if list of backward classes is to be amended.

Articles 15(4) and 16(4) of the Constitution of India provide reservation in educational institutions and public employment respectively to backward classes of citizens.

• Article 15(4) of the Constitution, inserted in 1951 through the first constitutional amendment to permit reservation in education, enables the State to make special provision for the advancement of any “socially and educationally backward classes of citizens” or for SCs and STs.
• Article 16(4) enables the State to make provision for reservation in public employment in favour of “any backward class of citizens” if such a class is not adequately represented in public services. Backward classes of citizens include SCs, STs, and Other Backward Castes (OBCs).

A caste-wise breakup of the population in the census will enable a cross-sectional understanding of how castes interact with social, economic, cultural and demographic characteristics, and generate abundant data to understand how every caste is faring in various socio-economic indices like literacy rate, child marriage, infant mortality rate, death rate, and so on.

To this date, the outdated data of the 1931 census largely remains the basis for reservation in the country. Where deprivation is associated with historical exclusion from access to education or valuable resources rather than active social discrimination (as happened and continues to happen with SCs and STs), it becomes important to take stock of the changing situation of such communities at periodic intervals.

Therefore, obtaining accurate data for better targeting of reservation policy becomes even more essential. Such periodic revision can be undertaken only on the basis of comprehensive socio-economic data collection through the decennial census.

• Help the government better identify the intended beneficiaries of its reservation policies
• Bring forward anthropological facts about the nature of our national population.
• Data on the number of castes, their actual population, their relative social position, their economic conditions, their educational level, and their representation in state services would help to fill in a major gap, through raw data, in the discourse on caste and on the ideas of social privilege, unjust enrichment and historical denial.
• Provides an opportunity for the nation to collectively reflect on the questions of caste, the privileges it confers, and the oppression it ensues.

Issues associated with Caste

• Regulates all aspects of Life: caste has been at the forefront of Indian’s social existence and regulates lives — from birth to death, customs, rituals, housing, professions, development planning, and even voting preferences
• Continues to influence Occupational Structure: Studies suggest that 90% of menial jobs are performed by the deprived castes, whereas this figure is reversed in white-collar jobs.
• Inequity in Gold Collar Jobs: The abysmal lack of caste diversity, especially at the decision-making levels in various sectors — the media, the judiciary, higher education, bureaucracy or the corporate sector — weakens these institutions and their performance.

• There is a fear of potential abuse of the data on caste for petty vote bank politics, although it is unclear how data on caste would fuel partisan politics in a manner different from the past seven decades when caste has not even been counted in the census. Most political parties apply their own caste arithmetic in allotting tickets to their electoral candidates, and several thrive in elections as a result.
• There is a legitimate concern that caste is an inherently subjectively construct. In other words, there is no clear answer to the question “What is your caste”? Caste names differ on a contextual basis. Furthermore, with increasing urbanisation, caste is getting more and more fluid, thereby eroding the endogamous nature of caste. For instance, what caste does one assign to a child born from an inter-caste marriage?

Arguments for Caste Census

• A caste census, which will generate exhaustive data will allow policymakers to develop better policies, implementation strategies, and will also enable a more rational debate on sensitive issues.
• India needs to be bold and decisive in tackling caste questions through data and statistics in the way US does to tackle race issues, by collecting data around race, class, language, inter-race marriages, among other metrics.
• Our Constitution too favours conducting a caste census. Article 340 mandates the appointment of a commission to investigate the conditions of socially and educationally backward classes and make recommendations as to the steps that should be taken by governments.

• The Justice Rohini committee was appointed in 2017 to look into the sub-categorisation of the OBC communities; however, in the absence of data, there can be no data-bank or any proper sub-categorisation.
• All commissions have had to rely on data from the last caste census (1931). There has been substantive demographic changes since then and therefore, the data has to be updated.

• While census data has been captured for SC, ST, religions and linguistic profiles, there has been no profiling of all castes in India since 1931.

The Census Organisation has neither an obligation nor the mandate to classify or group the various castes reported. Hence, the census should only compile and tabulate the data as reported. Data collection should not be confused with data analysis. It should be left to specialised agencies such as the Anthropological Survey of India to, at a later stage, attempt any classification and grouping.