Affirmative Action in India : Need to Look beyond the Mandal Commission Approach

Anil Nauriya [After India became independent in 1947 the Constitution of 1949-1950, which is now in force, guaranteed (i) (ii) reservations in public employment and in the legislatures for the scheduled castes (also known variously a Harijans or Dalits and once known in the British days as the untouchables) (iii) similar reservations for the sch tribes (certain aboriginal groups) and (iv) rights of religious and linguistic minorities to preserve their culture language and to establish and administer educational institutions of their choice. The Constitution provided also that the state could make special provisions for "Other Backward Classes"(or O they came to be known). The provincial governments (state governments) provided for this in their respective areas. OBCs were generally intermediate groups which, though backward in relation to echelons of rural society, were not historically discriminated against as the Scheduled Castes (SCs) had been or isolated as the Scheduled Tribes (STs) had been. In 1990 the Central (ie Federal) Government then headed by Prime minister V P Singh announced reservations (Central ) public employment to the extent of 27 per cent. This was on the basis of a Report of an official Comm The scheme, known as the Mandal scheme (after the chairman of the Commission), was upheld by the Supreme Court after skimming off what is known as the "creamy layer" of the relatively richer OBCs.

The main problem in the courts in recent years in this context has been how to identify and enumerate the OBC 1990-1992 this had been done in the provinces (states) on a mix of criteria. But since1990 the criteria has been overwhelmingly, even exclusively, based on sociological caste hieararchies, with the intermediate castes gener thought of as "OBCs". Lately, there have been demands also for reservations for OBCs in institutions of higher learning. A bill for this purpose was passed in 2006 by the Indian Parliament. Some religious groups are also demanding reservation. It is argued in this article, written in December 2006 th change in approach is required .]

With Parliament having passed reservations for OBCs in institutions of higher education, attention has been focused on the creamy But there are more serious issues of reservation policy that require consideration.

Though I had supported V P Singh's initiative for OBC reservation in public employment at the Centre, I had argued at the time tha composite Karpuri Thakur (KT) formula, then already in force in Bihar, was more appropriate than the Mandal-V P Singh (MVP) was philosophically and ideologically superior and more practical.

KT provided 20 per cent caste-based reservation with the remaining 7 per cent being subdivided on economic and gender criteria. M the entire 27 per cent OBC reservation on caste identification.

Appreciating the difference may still help prevent errors from being replicated. First, as the MVP exercise was projected in the con empowerment it was crucial that OBC reservation did not become imbalanced in relation to SC/ST reservations.

The latter had traditionally stood in the region of 22.5 per cent. MVP tilted the scale although the intermediate castes, comprising t population, are often most in conflict on agrarian issues with the SC and ST population. KT reflected a more measured approach.

Second, KT had greater acceptability as a cross-section of society had some stake in it, howsoever marginal. MVP on the other han line through society. Third, once caste became virtually the sole criterion for determination of backwardness under MVP, it compli jurisprudence on religious hate campaigns in politics and elections.

Not that caste was not used as a criterion or an organising principle earlier. But when caste was sought to be essentialised across th in MVP, political defences against sectarianisation of politics also became weaker.

This was reflected both among the people at large and in institutions. The Supreme Court in the Mandal case (1992) broadly uphel ignored the KT approach, presumably because its attention was not specifically drawn to it by either side in the controversy.

Some features of that judgment, specifically the disregard of economic criteria even as one of many independent criteria for identif backwardness, created difficulties for the continued operation of the composite KT approach in Bihar itself. The pendulum had sw days when caste was treated as one of the factors contributing to backwardness, whether general, social or educational.

The social and the economic causes were now treated in the judicial and political discourse as though there was a wall between the Whenever the importance of economic factors in identifying social backwardness was mentioned, attention would be diverted to th commission having utilised economic, among other, criteria for the purpose of identifying backward castes.

On the other hand, KT correctly recognised the need for including as a backward class certain categories of people identified on pu economic and gender criteria.

Fourth, KT implicitly recognised that as one moves higher on the scale of groups demanding reservation, it is not necessary that re based on the proportion that the group bears to the total population. Thus if the SC reservation was fixed in relation to the demogra proportion of these communities, it was not essential that the intermediate castes must also have reservation in accordance with the population. Being better placed than the SCs, they do not require an equal degree of encouragement.

A positive feature of the Mandal judgment was that it had kept OBC reservation open to others belonging to comparable occupatio categories. The court had referred to Muslims in Karnataka and Kerala and to some Christians in Kerala. This aperture, transcendin criteria, avoids specifying preference for any single religion.

The Sachar recommendations could be usefully adjusted as reservations for backward classes from religious minorities. The overlo more open-ended principles underlying KT may take time fully to rectify.

[ 19 Dec, 2006 ,The Times of India ]