105th Constitutional Amendment Act: The Journey of caste reservation in India

By Pravanshi Pandey | New Delhi

(Caste reservation is a hot debate in India even today, although it was implemented almost 40 years ago. However, with the recent 105th Constitutional Amendment Act, a milestone has been reached. The Act will strengthen federalism and democracy, decentralise legislative power, and maximise social justice in India.)

 

In the last Monsoon Session of the Parliament, Modi-led National Democratic Alliance (NDA) Government passed a very significant constitutional amendment bill, making it 105th Constitutional Amendment Act which envisioned of endowing all the Union Territory (with legislative power) and State Governments to have their own list of Other Backward Classes (OBCs). Having deeply accustomed with caste-based politics, the Indian political parties did not surprise us when all of them unitedly favored this move without igniting any major negation and opposition to any portion of the bill which is interestingly a quite rare phenomenon in India’s parliamentary politics. However, this Constitutional Amendment Act is very significant from various aspects ranging from strengthening the federal structure of Indian democracy to decentralizing decision-making process and power, to maximizing boon of social justice for neglected sections of the Indian societies. Therefore, it turns out to be a riveting Constitutional topic to analyze at length.

In order to understand the whole quota and reservation issues pertaining to certain classes and communities who are being deprived socially, economically and educationally throughout the ages in India, we, foremost, need to comprehend the very basics of the notion of reservation and its applicability and relevance in Indian context.

Reservation: What Is It & Why Is It Relevant In India?

The term ‘Reservation’ has been used more than two dozen times in the Constitution of India, indicating of its being a government policy backed by the various provisions brought in by many Constitutional Amendments. As per the definition of Oxford Dictionary, the word ‘Reservation’ has been derived from word ‘Reserve’ which connotes of ‘keeping something for a special reason or to use at later date.’ Hence, the term ‘Reservation’ means ‘booking or securing a seat, table, room, etc. for someone in advance.’

In the context of Indian politics, the term ‘reservation’ is used to simply describe the ‘act of securing or setting aside a fixed number of seats in government jobs, educational institutions or even in legislatures for certain weaker sections of the population.’ It is also known by various other names likewise an ‘affirmative action’ or ‘positive discrimination’ made by state apparatus only.

The ‘concept of reservation’ apparently looks like standing contrary to the ‘notion of equality’. The general perception of ‘equality’ is that there should not be any discrimination, prejudice, or biasness on the pretext of caste, color, race, religion, land, or language, and in other words it means that the same rules and parameters should be applied for everyone, and no privilege should be given to anyone on the basis of any of his/her denominational identity. However, this general perception of ‘equality’ is too ideal and not practically feasible in the heterogeneous world of the present time. For instance, present societies can be idealized in a sport event wherein an eight-year-old kid wrestling against a twenty-five-year-old man. It is unimaginable that anybody will consider it a fair and just competition because of the fact that it is not possible to apply the same rules to every individual of the society. That’s the reason we have a universal understanding of formulating sport competitions on the basis of ages of the participants like under 14 or 16 cricket and football teams.

This is the only one aspect wherein a biological factor is being considered as a ground for special provision or positive discrimination in the society. Such policies can be adopted for various other social factors as well. Just like the stories of discriminations came on the surface throughout the World due to various factors like due to race (in the USA), due to religion (like minorities in countries having official state religion and the story of Jews in Germany is well known), due to caste (as happened in India), due to Gender (a worldwide general trend) etc., the same factors can be the basis for reservation and positive discrimination as well for the same section of society who had been deprived and discriminated of their rightful resources because of their identity and social background. Hence, there is no doubt if it is believed that the ideal ‘concept of equality’ which pronounces ‘same rules for all’ will only sustain more inequality and injustice in the society.

The development of human consciousness is a constant process. With the onset of Modern Era, when the talks on democracy, secularism, republic, rights, and the sovereignty of people intensified, the political thinkers had coined many ideals for the society like liberty, justice, fraternity, equality etc. It is believed that in the 1850s, political thinkers like Karl Marx (1818 – 1883), J. S. Mill (1806 – 1873) etc. actually came up with the new concept of equality for the betterment of society. The political thinkers believe that this new concept of equality does not hesitate to give some extra boons to the deprived section of society to ensure a level-playing ground for all the sections of the society.  Thus, it had led to the evolution of the notion of social justice which intended to ‘undo’ the process of injustices from the society by making provision of granting some benign favors to the marginalized sections.

With the emergence of the notion of social justice, the policy-makers and political thinkers started mulling on the adoption of mechanism to attend social Justice in the society. One way to achieve social justice can be imagined if all the people in the society have the same feelings and attitudes towards the whole society as they have towards themselves, their families, and their belongings, like feeling of sacrifice and feeling of empathy for weaker family members. This attitude will definitely result in sorting out all the social imbalances and problems from the society. But this is again too ideal to accept and unimaginable to be a workable plan in the real world. Thus, this option cannot be pursued to achieve social justice.

The better and the practical way to achieve social justice in the society can be through adoption of policies like a ‘Welfare State’ does. When we look into the role of a ‘Police State,’ we find it only bothers about collecting taxes and maintaining law and order in the society in high-handedness manner. Whereas a ‘Welfare State’ also performs the same duties but not like a ‘Police State.’ A ‘Welfare State’ has a ‘common good’ in each and every of its policies and that is its being a welfare outlook for the masses of the respective State.  Undoubtedly, it is a ‘Welfare State’ which can only take actions to bring level-playing base in the society by adopting policy of reservation or quota system in favor of its deprived section, and that’s why such Government action is known as an ‘affirmative action.’ Reservation is not unique to India. We can find it in almost all developing and developed countries. Even our neighbors like People’s Republic of China and Islamic Republic of Pakistan have the constitutional provisions for granting reservation to certain groupings in their territories.

In India, the caste-based reservation system has its root in pre-independent British India. In post-independence era, the Indian Constitution also dealt with pressing issues of deprived sections and brought certain Articles and provisions favoring the reservation narrative. For instance, Article 15 and 16 of the Indian Constitution talk about the general reservation, and Articles 332 & 334 deal with reservation of SCs and STs in the Parliament and State Legislatures.

The educational and employment reservation in public institutions has been primarily given to three sets of groups. Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) are officially designated groups of people in India who are entitled to get educational as well as employment reservation of 15%, 7.50% and 27% respectively in public institutions.

This article is about 105th Constitutional Amendment Act that deals with the issue of reservation for Other Backward Classes (OBCs) only.  So, let’s figure out who are the OBCs? How was this category formed? Who can notify them? What happens when a community is being notified as OBC?

What Being An OBC Means In India

‘OBC’ is an abbreviation which stands for Other Backward Classes. The term ‘OBC’ is actually a colloquial reference to the said community in informal language. The Constitution of India refers to the said community with “Socially and Educationally Backward Classes” (SEBC). However, the frequent usage of the term ‘OBCs’ to refer the said community has become so profound that the actual term mentioned in the Constitution has turned out to be uncommon. Worth-mentioning here is that the Constitution itself used word ‘Classes’ and not ‘Castes’, which indicates that the primary basis of forming such grouping is not the ‘caste’ but the deprivation and disadvantage of certain Indians in terms of educational and social advancements.

The origin of having such grouping of Indian citizens lies in the ‘Article 340’ that comes under Part 16 (Special Provision relating to certain classes. —Arts. 339—341.) of the Indian Constitution. The ‘Article 340’ had actually paved the way for deliberation on perceived deprivation of certain Indian communities by stating:

“……. a Commission shall be appointed to investigate the condition 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 by the Union or any State and the conditions subject to which such grants should be made.…….”

Subsequently, riding on the inspiration made in the Article 340, a Commission to examine and investigate the backwardness of certain groupings was constituted under the Chairmanship of a Marathi Gandhian Dattatreya Balkrishna Kalelkar (1885 – 1981) in January 1953. The Kalelkar Commission took two years and submitted its report in March 1955.

In the final recommendation of the report, along with three other members of the commission even Mr. Kalelkar opposed and disliked linking caste for the sole criterion to grant reservation to any backward group of Indian citizens. He said so in his letter while forwarding the report to the President of India and he further said in the letter “All communal and denominational organizations and groupings of lesser and narrower units have to be watched carefully so that they do not jeopardize the national solidarity and do not weaken the efforts of the nation to serve all the various elements in the body politic with equity.”  (page iv, para 14, Report of Backward Classes Commission)

Does Caste Equal To Backwardness?

Here, a question arises that despite having clear mentioning of ‘classes’ not ‘castes’ in the Article 340 of Constitution of India and a categorical understanding of Mr. Kalelkar to not link caste with reservation as the sole basis, how and why ‘caste’ turned out to be the sole parameter in the Kalelkar commission and afterward to gauge backwardness and deprivation of people of India?

To answer the above question requires us to understand nature and composition of Indian society in historical prospective. There won’t be a second opinion in the fact that the caste has been a salient feature of India from ancient to modern era. Thus, it became the main basis to categorize the people for various purposes. When Government of India endeavored to analyze backwardness in its own citizens, the ultimate parameter available in the hand was nothing but its caste system. Despite Government’s pious pursuit to find backward and marginalized classes among its own people, it resulted in discovering castes who were not mainstreamed like the forward classes/castes in India. So, in India it is quite impossible to segregate castes from classes or vice versa because of its being so blended and intermingled with each other.  It is note-worthy that the caste system in India is so overarching that it did not spare even those communities who subscribe non-Hindu religions which claim to have the doctrine of egalitarianism as the prime feature.

However, the recommendations made in the Report of Kalelkar Commission were not accepted by the then Government of India led by Pandit Jawahar Lal Nehru (1889-1964). The obvious reason for the rejection was the evolving political scenario of India at that point of time. India had just got independence with a bitter experience of bloody partition on communal ground couples of years back and there was a strong belief among the ruling elites that India was previously colonized only because of home-grown social evils such as caste-based system and infamous old orthodox traditions prevalent across the Indian Sub-Continent. So, at that crucial juncture, the people at the helm of India’s affairs decided not to let the evil officially engraved in the society and dreamt of an India which should be afresh, casteless, and progressive.

The time was flying, and India was on its progressive path. Then came 1977 and Indian politics took a surprise turn. For the first time a Non-Congress Government formed at the center led by Morarji Desai (1896- 1995) of Janata Party. The Janata Party government under Prime Minister Morarji Desai started to think of setting up another Commission to identify socially or educationally backward classes of India and in 1979 decided to hand-over the task to former Chief Minister of Bihar, Bindeshwari Prasad Mandal (1918-1982), popularly known as B. P. Mandal, to head the Second Backward Class Commission, which was later famously known as the ‘Mandal Commission.’

The commission used eleven social, economic, and educational indicators to determine backwardness and submitted its report in 1980. As per the parameters, the Commission had comprehensively studied all Hindus and Non-Hindus of India and identified 3743 castes as Other Backward Classes (OBCs) which were constituting 52% of the total population of India at that time. Then, the Commission had made a recommendation of granting 27% reservation to the said group in employments of Central Government and public sector undertakings.

However, the Government of Janata Party could not last, and the Indian National Congress regained the power in 1980 under the Prime Ministership of Indira Gandhi.  Congress was never in favor of granting reservation on such ground. So, it had cited various reasons to negate the implementation of Mandal Commission such as risk of caste tensions at large scale in India, lack of machinery to implement such a huge recommendation on a vast territory like India.

Then again in 1989 another Non-Congress Government was formed in India by National Front (NF) under the leadership of Vishwanath Pratap Singh (1931-2008). In order to consolidate caste-based coalition support in North India, VP Singh Government implemented the recommendations of Mandal Commission in 1990. The caste-based reservation quickly engulfed the whole country with large scale protests particularly by the youth of General Category.

A student Rajiv Goswamy Goswamy self-immolated in 1990. The sudden hue and cry among the General category throughout the country was due the anger and disappointment on the implementation of Mandal Commission which curved out further 27% reservations to the OBCs in Government jobs and higher education, making it 49.50 reserved quotas. After that, a petition challenging the implementation of recommendations made in Mandal Commission was immediately filed in the Supreme Court by Indra Sawhney, making three fundamental arguments i.e. (a) Caste is not a reliable factor for backwardness (b) Efficiency of public institutions is at risk (c) Reservation violates the Right to Equality.

The Supreme Court of India deliberated on the petition for almost two and half years and gave its verdict in November 1992, popularly known as the Mandal Verdict’, in which the Supreme Court upheld the validity of 27% reservation and opined that the caste is an acceptable indicator of backwardness. The Apex Court also asked the Union Government to establish a permanent statutory body i.e., “National Commission on Backward Classes” (NCBC). Furthermore, the term ‘creamy layer’ was used in the context of reservation and a 50% ceiling was placed on the total reservation in the verdict.

After this landmark verdict “National Commission on Backward Classes” (NCBC) was constituted as a permanent statutory body under the ‘National Commission on Backward Classes Act’ of 1993. Since then, the OBCs of the country are entitled to get reservations in higher education and public sector employments.

However, who can notify any caste as OBC was not mentioned anywhere in the Constitution of India. Since the implementation of Mandal Commission, the practice and convention to notify enlisting of any caste in OBCs was in the hands of both the State and the Central Governments. But when 102nd Constitutional Amendment Act was passed in 2018, it basically inserted three new Articles in the Constitution i.e., Article 366 (26c) which defines ‘Socially and educationally backward classes’, Article 338B which provides Constitutional status to the ‘National Commission on Backward Classes’ and makes its approval necessary for notifying any community as OBC, Article 342A which gives powers of notifying OBC to the President of India.

The Recent Notification Of Marathas As An OBC

Recently, the issue of OBCs and its notification came into limelight only when the Maharashtra Government notified Marathas as OBC. Since the Article 342A of the Constitution which was brought in by 102nd Constitutional Amendment Act clearly states that only the President of India has the authority to notify any caste as OBC, the matter went to the Supreme Court of India to decide the validity of Maharashtra Government’s notification of enlisting Marathas as OBC in its respective state. The Supreme Court of India did not take much time to come to the conclusion in this respect and decided that making such notification lies only in the hands of the President of India as per the interpretation of Article 342A of the Constitution.

Since there is an ongoing tussle between Maharashtra Government led by Shiv Sena’s Uddhav Thackeray and Union Government on various political fronts from the day one of Maha Vikas Aghadi Government of Maharashtra, the Supreme Court’s Verdict caused huge tensions among the political parties within the State of Maharashtra and the Centre. In order to reduce tension and pacify the waring political parties, the Government of India came up with the 127th Constitutional Amendment Bill, aiming to amend all the three Articles inserted through 102nd Constitutional Amendment Act. The bill was passed by both the Houses of the Parliament unanimously, making it 105th Constitutional Amendment Act which amended the Article 338B and removed the provision of approval of NCBC to notify any caste as OBC and it also amended the Article 342A and gave the authority to notify any caste as OBC to the President of India and the State Governments/ Union Territories having legislative Assemblies as well.

This 105th Constitutional Amendment Act gave immediate relief to Maharashtra Government which went ahead implementing reservation for Marathas. However, this Act also has many other significances in long run.

There is a long-time debate in Indian politics that the Centre does not care of the federal structure of India when it comes to assert the authority on States. However, by bringing 105th Constitutional Amendment Act, NDA Government led-by Prime Minister Narendra Modi showed its intention of strengthening fabric of federalism in the country. With this Act, the Centre has allocated Constitutional powers to the states and Union Territories and enhanced their legislative ambit, protecting and promoting federalism in the country.

Another significant aspect of 105th Constitutional Amendment Act is that it will ensure maximum social justice enshrined in the Preamble of Constitution for Indian citizens. The immediate refection of this can be seen in the case of Maratha Quota. After Supreme Court’s interpretation of Article 342A, 671 castes had lost their OBC Status, now after this Act, their social justice will be reinstated, and they will be able to get benefits of all the affirmative actions.

This Act is also a bouncy step towards more democratic decentralization of power. It is now firmly believed in political discourses that effectiveness of any system can be achieved only if the power is not concentrated with a single authority. As much as the power is distributed, the outcome of policies will be more effective and result-oriented. In India as well as in any part of the world, State and Provincial Governments are better aware of its communities and their conditions in its respective states. So, decentralization of legislative and executive powers will have a more constructive impact on the society as whole.

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Pravanshi Pandey is Content Creation Associate at BYJU’S IAS, New Delhi. She can be reached at pravanshipandey@gmail.com


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