Ironically, an OBC Prime Minister is Bringing about De-reservation: Justice Eswaraiah

Over the last three years, the Justice G Rohini Commission has been poring over data to subcategorise the Other Backward Classes, also known as backward castes, to spread more equitably the 27% reservations allocated to them in government jobs and educational institutes.

Media reports say the castes comprising the OBC are likely to be split into four groups—1, 2, 3 and 4—and the 27% divided into 2, 6, 9 and 10%. Thus, 2% of government jobs would be exclusively reserved for castes comprising Group 1. The Commission is expected to submit its report by July.

Doubts have been raised about the methodology that the Rohini Commission has adopted to subcategorise the OBCs. Among them is Justice V Eswaraiah, who was the chairperson of the National Commission for Backward Classes between September 2013 and October 2016. He had also been a judge of the Andhra Pradesh High Court for 14 years and retired as its Acting Chief Justice in 2013. He is the founding president of All-India Backward Classes Federation.

Justice Eswaraiah was recently quoted saying that the Rohini Commission’s methodology is “unscientific, atrocious and illegal.” In this interview, he explains why he thinks the commission’s methodology is faulty, and how it constitutes an element in the process of diluting OBC reservations.

Why did you recently tell the media that the method adopted by the commission headed by Justice G Rohini to subcategorise the Other Backward Classes for reservations in Central government jobs is “unscientific, atrocious and illegal”?

The Rohini Commission for subcategorising the OBCs within the central list [used for reservations in central government jobs] has not taken into account the Socio-Economic Caste Census that was conducted in 2011. The commission is only looking at caste-wise information available with various government departments regarding central government jobs. Or, to put it in another way, the commission is calculating which OBC caste has what percentage of central government jobs. This is constitutionally impermissible and unscientific.

Why?

Article 340 of the Indian Constitution mandates the President of India to appoint a commission to investigate the “conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour”. Article 340 makes it clear that a commission can make recommendations for socially and educationally backward classes [known as the Other Backward Classes] only after a proper investigation.

The Rohini Commission has, however, not conducted a nationwide survey to find out the conditions of particular castes and communities, nor the difficulties they live under. Without such a survey, the Commission is finding a solution to the problem of under-representation or absence of certain castes in central government jobs blindfolded.

But the central government will have data on which caste has what percentage of 27% jobs that are reserved for the OBCs?

No such data is available.

What do you mean?

There are many castes that have not even entered Class IV jobs. Therefore, it is not possible to calculate which caste among the OBCs has what percentage of jobs. As a former chairperson of the National Commission for Backward Classes, I came across many castes which were wandering or nomadic classes. They did not have a fixed place of residence, nor access to education. They were not even aware that a policy of reservation existed for them. Around 50% of nomadic people are in the OBC central list. They are socially and educationally far more backward than even the Scheduled Castes and the Scheduled Tribes.

The central government would at least know of the OBC castes represented in its jobs, would it not?

Not really. At the time a person applies to enter central government services, he or she has to only indicate whether he or she is OBC. Sure, the person has to provide a caste certificate, which may spell out his or her caste, whether he or she belongs to, say, the Yadav or Kurmi caste and so on. The person has to also furnish the income certificate of his or her parents, to ensure their income is below the ceiling earmarked for the creamy layer. [OBC members whose parents have an income above a certain level do not qualify for reserved posts and have to compete in the general category.]

The government can access the caste certificates to calculate which caste has what percentage of OBC jobs, can it not?

To begin with, such certificates are not in the public domain. There is no way of knowing whether a government department is correctly reporting the precise number of jobs a caste has. While subcategorisation is a tool for ensuring that the benefits of reservations should be spread as equitably as possible, it is also true that this is often used for political purposes such as the ruling party wanting to please certain social groups at the expense of others.

Bureaucrats take their cue from their political masters. Doubts about the genuineness of data gathered on the basis of caste certificates will remain. But more than anything else, the percentage of jobs a caste has or should have needs to be linked to its population.

Why?

The SCs and the STs have been granted reservations in jobs, educational institutes and legislatures in proportion to their population. This is mandated by the Constitution. My own view is that it is not permissible to subcategorise the OBCs by ignoring the factor of population for each caste. If advanced groups within the OBCs have achieved more than their entitlement, does it mean you would deny reservations to them?

How do we define entitlement?

Entitlement is linked to population. Assume Caste X accounts for 15% of the OBC population and has 10% of reserved jobs. In other words, Caste X has still to bridge the 5% gap between its population and entitlement to jobs. Subcategorisation without taking into account the population of each caste could lead to the lowering of percentage of jobs for which its members can compete in the reservation pool. Without taking the population of Caste X into account, its members could run the risk of being de-reserved, in more or less the same way the creamy layer does.

Again, without taking into account the population of each caste, the process of subcategorisation could warp the social reality. For instance, Caste X has a population of 10 lakh and has 10% of jobs reserved for the OBCs; Caste Y with a population of one lakh has just one percent of jobs. If you were to simply go by job data, it would seem, on the face of it, that Caste X is better placed than Caste Y. But once you know their population, you realise they are on par. This example should tell you why while dividing the 27% OBC reservations among the subcategorised groups, their entitlements have to be linked in proportion to their population. It is only then that the subcategorisation would not lead to de-reservation.

You submitted a report on subcategorisation, did you not?

I received a letter, on 13 February 2014, from the Joint Secretary of the Ministry of Social Justice and Empowerment. The United Progressive Alliance was in power then. The letter asked me to examine the possibility of subcategorising the Central list of OBCs. I submitted my report on subcategorisation on 2 March 2015, by which time the Modi government was in power.

What were your arguments for carrying out the subcategorisation?

The Preamble of the Constitution guarantees to all citizens justice—social, economic and political—equality, liberty and fraternity. I cited Article 14 (equality before law), Article 15 (prohibition against discrimination), Article 16 (equality of opportunity in public employment and reservation for backward classes of citizens), and Article 340. I pointed out that in the Indra Sawhney case of 1992, the Supreme Court said that the “backward classes of citizens” mean the Scheduled Castes, the Schedules Tribes and the Other Backward Classes.

Since the “backward classes of citizens” had already been subcategorised into SCs and STs, the Supreme Court said that socially and educationally backward classes should also be subcategorised so that the benefits of reservations could reach to the most backward.

In Indra Sawhney, the judges ruled that Mandal had used certain criteria to identify socially and educationally backward classes, but there could also be other indices for doing do. In my report, I said nine states and Union Territories had already subcategorised the OBCs—Andhra Pradesh, Bihar, Tamil Nadu, Puducherry, Karnataka, Haryana, Jharkhand, West Bengal and Maharashtra. It only followed that subcategorisation should also be done at the national level, obviously, based on scientific data collected through surveys.

What criteria did you suggest for subcategorising the central list of OBCs?

I divided the OBCs into three groups. Group A was Extremely Backward Classes, Group B More Backward Classes and Group C Backward Classes. Group A or Extremely Backward Classes would include aboriginal tribes, nomadic and semi-nomadic tribes, denotified tribes, wandering classes such as those involved in begging, catching snakes, etc. By looking at the names of these castes and their occupations, there can be no doubt that these belong to the extremely backward classes.

The more backward classes would consist of occupational groups such as weavers, barbers, potters, etc. The backward classes would include land-owning castes and those engaged in small businesses, etc. I said a thorough survey regarding their population and social and educational backwardness should be done.

Did you for each of the three categories recommend a population survey?

Yes, I did. How could I not? After all, the Supreme Court has repeatedly suggested in Indra Sawhney and other judgements that a caste census should be undertaken for determining the reservation and subcategorisation policies.

Given the importance of data collected through the Socio-Economic Caste Census 2011, why do you think the report has not been made public yet?

The UPA did not want the people to know the facts on the ground. This is as true of the Modi government. Once the actual population of OBCs is known, they fear there would be a demand for increasing the percentage of reservations for the former.

The last caste census was done in 1931. Using the 1931 figures, the Mandal Commission estimated that the OBCs constituted 52% of India’s population. However, Mandal said that several judicial orders had put a cap of 50% on the quantum of reservations. There was already a 22.5% quota for the SCs and STs. It was to honour the judicial orders that Mandal recommended only 27% reservations for the OBCs. If the 2011 Caste Census shows that the OBC population is not 52%, but, say, 70%, then there would be a demand to increase the quota for OBCs.

Obviously, the share of forward castes or the upper castes in government jobs would then decrease. Their share of government jobs is several times their population. If the quantum of reservations for the SCs and STs is in proportion to their population, then it should also be the same for the OBCs. This logic cannot be faulted. The upper castes, too, can have reservations in proportion to their population, as is the case with the SCs and STs.

Why is the government so keen on subcategorisation?

It is to please the most backward classes—and get their votes. Worse, this is being done through an illegal and unscientific method adopted by the Rohini Commission. There is fear that the subcategorisation of the OBC quota would benefit the advanced communities or the upper castes. You might wonder why. Assume the OBCs are split into four groups, one of which is the most backward. It is possible candidates from this category might be unable to fill the share of jobs allocated to them. Will such jobs go to the higher category within the OBCs or the General Category? We do not have any clarity on this count.

Although Mandal did not recommend the removal of the 50% cap, is it not strange that Modi did this to grant 10% quota to the Economically Weaker Sections belonging to the upper castes?

It is an irony that Modi as Prime Minister has introduced reservations for the EWS. You need to go back in time to understand that. In 2006, the Union government constituted a commission under Major General (retd.) SN Sinho for the Economically Backward Classes not covered by the existing reservation policy. The Economically Backward Classes (EBCs) are what we know now as Economically Weaker Sections. In 2010, the Commission submitted its report, which contains opinions of various chief ministers on whether reservation should be extended to the EBCs.

Narendra Modi as Gujarat Chief Minister did not seem enthusiastic about the EBCs reservations. The commission reported Modi saying that the EBC reservations would go beyond the Supreme Court mandated 50-percent cap on it. He also said that there was a “race for inclusion in the backward classes which was not proper.”

I have stated all this in my writ petition to the Supreme Court challenging the EWS reservations. The Sinho Commission did not recommend reservations for the EWS. It also estimated that the EWS constituted 5% of India’s population. For that five percent they have given 10% reservations now. All those whose parents earn Rs. 8 lakh a year, own 5 acres of land and a house or flat qualify to enter the EWS category. This means 95% of the upper castes can access reservations.

In other words, although the OBCs did not press for reservations in proportion to their population, they find that what should have been their share has been given to the upper castes.

Do you think the policy of lateral entry into government services and the anticipated privatisation of the public sector will dilute the policy of reservation?

Certainly, it will. Lateral or direct entry into government services does not provide for a quota. Reservations do not exist in the private sector. Those who enter central government services through the OBC quota account for around 14%. With government jobs due to shrink because of the lateral entry and privatisation policies, even this figure of 14% will come down. At the same time, many jobs in the public sector will go into the private sector, where reservations do not exist. It is the upper castes who will benefit. It is for this reason I proposed that there should be reservations in the private sector.

What we are seeing today is de-reservation under the guise of creamy layer, EWS reservations, subcategorisation, lateral entry into central government jobs and privatisation. Ironically, an OBC prime minister is bringing about de-reservation.