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Representation of "Youth for Equality" to Standing Parliamentary Committee

YOUTH FOR EQUALITY'S
Presentation on 9th of November 2006 to the
PARLIAMENTARY STANDING COMMITTEE On HUMAN RESOURCE DEVELOPMENT

Hundred Eighty- Sixth Report on the
CENTRAL EDUCATIONAL INSTITUTIONS
(Reservation in Admission) Bill, 2006

Representation of "Youth for Equality" to Standing Parliamentary Committee

Page 1 | Page 2 | Page 3

WE are not against real 'Backwards'

At the outset, it must be clarified that the emphasis of this representation is not to restrain the government from carrying forward its social obligations. It is submitted that the emphasis is on the manner in which the government wants to go about this task. We, herein, do not intend that the government ends its task of upliftment of the down trodden but is aggrieved by (i) the manner in which the government seeks to identify the down trodden, and (ii) the steps used for their upliftment.

The Constitution of India is NOT a Caste Constitution

The Constitution guarantees equality to all citizens and thus establishes a rule of Non-discrimination by the state in any manner. It ensures and inures the state to treat all citizens equally and allow equality of status and opportunity to all and specifically provides that discrimination on the basis of religion, sex, color, caste, race or the place of birth etc are impermissible. It is submitted that the Constitution makers were alive of the vices prevalent in the Indian society at the time of independence and framing of the Indian Constitution and therefore the provisions were incorporated at the time of the framing of the Constitution to eradicate the vices from the Indian society. The members of the constituent assembly were not representatives of any particular class, caste or the like but were the representatives of the sovereign - i.e. "We the people…" of India who were free democratic equals and who sought to forge a pattern of a new life for a common objective - development of the country as a whole. Every vestige of sovereignty was abandoned by the dominion of India and by the States and surrendered to the people of the land who through their representatives in the Constituent Assembly hammered out for themselves a new Constitution in which all the citizens in a new order would have one tie, and owe one allegiance, devotion, loyalty, fidelity, to the Sovereign Democratic Republic, that is, India. The new alliance and the new order born were grounded with the broad ideals - the sovereign will of the peoples of India with no class, no caste, no race, no creed, no distinction, thus no reservation, favoritism or benefit to any class or section of the society.

It is submitted that the pious objectives with which our fore-fathers decided and embarked upon the framing of the Constitution - Secularism was one of the guiding principles. Secularism entails not just religious but also casteless egalitarian society. The high objective and the final goal was to convert a society fragmented on the lines of religion, caste, economic status etc into a homogenous society where identification of a person was not on the basis of the religion he professes or caste he belongs to but was on the basis of what he is or what he has made himself into. This is aptly clear from the statement of Pandit Jawahar Lal Nehru made by him on the floor of the Lok Sabha on 13.6.1951. He said

"……After all the whole purpose of the Constitution as proclaimed in the Directive principles is to move towards what I may say a casteless and classless society……" (Lok Sabha Debates Vol XII-XIII (Part II) Page 9830-31)

The Hindu society may be a caste society but the Indian constitution is not a caste constitution.

In fact it forbids governanance on the basis of caste, religion place of birth and language or any one of them.. So there is no justification at all to provide or enable reservation on the basis of caste. When the state does not discriminate admission to educational institution on the basis of caste there is no justification at all to provide reservation on the basis of caste which instead of eliminating caste perpetuates it

Caste based policies are divisive , anti-secular, and anti-progressive

Caste based reservations was introduced by the British Government prior to independence and was part of its "divide and rule" policy which was enforced through various communal GO's issued at that point of time. The history of this policy of the British Raj was borne out of the 1857 movement that has since been recognized as the first movement of Indian Independence. Though the movement was then crushed through coercive and military measures and non-unity among the Indian people. The British thereafter set about a series of measures to prevent such uprisings in future. The most important measure adopted (looking at the unity shown by the Indian solders in the British ranks) was to break the unified force into segments of regional, religious and creed based bifurcations. The existence side by side of hostile creeds among Indian people, was considered to be the high point of the British policy to further their political position in India.

The similarity of that policy and the policy practiced today of the so called crusaders of the down trodden and the following appeasement policy adopted by their rivals to counterbalance their actions have lead and would further lead to fragmentation and division of the society which would be irreversible if allowed to continue any longer.

Reservation at the time of independence was only meant to be a measure for the ultimate goal of "wholesome development". The experience of last fifty six years have shown that the measure and the means have become an end in itself resulting in further fragmentation and division of the society on caste lines which was never the objective with which special provisions for upliftment had been incorporated.

It is submitted that classification on "caste basis" is not the correct means of classification since it over-emphasizes caste which is not in the larger public interest. The experience of last 56 years has shown, that classification on this basis to give benefits may have benefited some sections of such people but it has failed to eradicate "caste system" which was also the prime objective of the Constitution makers.

It is submitted that power provided under the Constitution, is only an enabling power and has to be exercised in National interest. It is submitted that if the experience of the past years, when the policy was in force, has shown that it has further divided and fragmented the society then it is not wise to permit the government to continue on this path to prejudice the "Unity of the Nation" which even finds presence in the Preamble of the Constitution. It is submitted that in such situation even if the government finds that certain sections of the society require additional protection then it must find other alternate secular methods of classification which do not offend Article 14, 15 and 16 of the Constitution.

Caste is being used as a means to classify people. The classification is being made to extend certain benefits - in educational institutions, in public services and also to become members and the representatives of the people. Thus, caste is being used for extending all such benefits which leads to emphasizing caste which the Constitution makers sought to avoid. It is submitted that classification for extension of benefits should be on a secular i.e. "non-discriminatory, non-communal and non-caste" basis and any person who satisfy such secular conditions of classification should be eligible for such benefits. It is submitted that the assumption of the backwardness limited to certain castes is wholly fallacious and should not be allowed to continue.

The secularist way of life promotes a society where a division on the basis of caste has no place, where "birth mark" is not given any importance. Religion is always an issue of faith which is personal to a person and can be changed on a change of faith but caste sticks as a permanent mark which cannot be altered thus efforts should be to dilute its importance and not to promote it by over classifying on its basis.

It is thus submitted that secularism being a basic feature of the Constitution - and the policy of the government to emphasize caste and classify on its basis to unreasonably benefit a section of the society, at the cost and deprivation of other "citizens" of the country does not promote but on the contrary torment the ultimate objective of a peaceful coexistence of all religions and communities - mandatory for the high goal of an egalitarian society. It is thus submitted that the government should not be permitted to use caste as a basis for classification any further to reduce its importance in the Indian Society.

When a policy is adopted it becomes central to the discussions that follow and interest get vested around it. The basis of the policy therefore has to be carefully selected since the focal point of the policy becomes rigid with the passage of time and vested interests resist its change. The criterion for a policy should and must always reward growth and development and should not be an incentive to remain illiterate and backward. If individuals or groups get reward for being and becoming separate, they would continue to be separate and become more and more fragmented. This would defeat the very objective of one tie, one allegiance, devotion, loyalty, fidelity, to the Sovereign Democratic Republic, that is, INDIA.

Moreover, the question is: do we want to eliminate caste as a factor of social relations and political processes or do we want to perpetuate it forever? By treating caste as the only medium of oppression and hence by focusing all remedial measures on caste alone, we have only added to the longevity of caste as the determining factor of social identity. Individuals have been virtually turned into the epitomes of the caste of their birth - denying the multiple identities that every individual perforce carries. This also helps the powerful amongst the generally disempowered sections to corner most of the benefits of caste-based reservation. Caste, which in reality is only one of the features of identity at the individual level and the manifestation of an abhorrent social order at the social and structural level, has been turned into the essential identity of individual citizens. It is harmful for the cause of a modern social democracy as well as to the cause of individuals in need of social justice and related affirmative action.

Caste can not be a class to define "Backwardness"

If caste is the only ground for Social Backwardness, how can giving jobs or education will remove social backwardness. As evident in Southern India, the members of royal families, ruling classes, land-lords, and rich businessmen are considered to be backward by the Government because of their castes. They were kings and rulers for generations, and if the backwardness because of caste could not be removed, how could it be removed now?
There are several analytically significant differences between "Caste" and "Class" :

  1. The membership of a caste is hereditary or by birth which is not so with a class.
  2. Caste is a closed group characterized by endogamy, while class is an open group which one automatically joins when one shares a common situation with other individuals.
  3. There is vertical mobility in class so that a person can move up to a higher or go down to a class considered lower in social hierarchy; and there is horizontal mobility also as one can cease to share a common situation with one group of individuals and start doing so with another group. There is no such mobility in caste.
  4. A class can generally be distinguished from another class in terms of some economic criteria, e.g. income, occupation, ownership of land or other means of production, place of residence (e.g. slum dwellers). While some castes may have a traditional or hereditary occupation, they are basically nothing have in common.

Caste system is the greatest hindrance in the way of our progress to egalitarian society

The Chairman of First Backward Class Commission, Kaka Kalelkar, pleaded that the reservations and other remedies recommended on the basis of caste would not be in the interest of society and country. He opined that the principle of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all the communities. He wrote:

122. Towards the end of our enquiry, we have come to the conclusion that caste, communal or denominational considerations need not be introduced in the educational policy. A progressive, modern welfare State, cannot afford to tolerate educational backwardness anywhere in the State. In most of the modern States more than 60 per cent of the scholars receive full educational aid. In India, it should be possible for the State to give educational aid to all the poor and deserving students in the country, irrespective of caste, sex or denomination. Whenever it is necessary to show preference it must be for women and for students of rural areas. The present preference for Scheduled Castes and Scheduled Tribes should be continued for some time, but the time has come when all the poor and deserving should, and could, be helped, so that no communal consideration need be introduced in the field of education.

In the Memorandum of Action on the report of First Backward Class Commission, at the time of tabling it before the Parliament, it was pointed out that the caste system is the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. Shri Govind Ballabh Pant, the then Home Minister stated:

"………the emphasis on caste has further been highlighted by some of the minutes of dissent. The tone and temper displayed therein bring into prominence the dangers and of separatism inherent in this kind of approach. It cannot be denied that the caste system is the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of specified castes as backward may serve to maintain and even perpetuate the existing distinctions of caste. There may be, besides castes, a large number of whose members may be classified as backward educationally and economically, but still there may be others among them who cannot be so classified. Similarly, among the so called upper and advanced classes there may be, and in fact there are, large number of those who are not less backward educationally and economically and even among the backward classes some castes are more backward than the others………"

Apart from the rejection of the crucial test of caste as a basis for classification it was further noted that if caste is used as a test for backwardness, it would result in the entire community barring a few exceptions to be regarded as backward. The reality in such situation, recognized by the government, would result in the needy swamped by the multitude and would hardly receive any special attention or adequate assistance which is the very basis of providing affirmative action.

This way lies not only folly, but disaster.

Prime Minister of India Pandit Jawahar Lal Nehru in his letter dated 27th June, 1961 wrote:

"I have referred above to efficiency and to our getting out of our traditional roots. This necessitates our getting out of the old habit of reservations and particular privileges being given to this caste or that group. The recent meeting we held here, at which the Chief Ministers were present, to consider national integration, laid down that help should be given on economic considerations and not on caste. It is true that we are tied up with certain rules and conventions about helping the scheduled castes and tribes. They deserve help but, even so I dislike any kind of reservation, more particularly in Services. I react strongly against anything which leads to inefficiency and second-rate standards. I want my country to be a first class country in everything. The moment we encourage the second-rate, we are lost.
The only real way to help a backward group is to give opportunities of good education, this includes technical education which is becoming more and more important. Everything else is provision of some kind of crutches which do not add to the strength or health of the body. We have made recently two decisions which are very important one is, universal free elementary education, that is the base; and the second is scholarships on a very wide scale at every grade of education to the bright boys and girls, and this applies not merely to literary education, but much more so, to technical, scientific and medical training. I lay stress on the bright and able boys and girls because it is only they who will raise our standards. I have no doubt that there is a vast reservoir of potential talent in this country if only we can give it opportunity.

But if we go in for reservations on communal and caste basis, we swamp the bright and able people and remain second-rate or third-rate. I am grieved to learn how for this business of reservations has gone based on communal considerations. It has amazed me to learn that even promotions are based sometimes on communal or caste considerations. This way lies not only folly, but disaster. Let us help the backward groups by all means, but never at the cost of efficiency. How are we going to build the public sector or indeed any sector with second-rate people?"

Mandal Commission: A document of falsehood
(Annexure I,II, III, IV )

It is submitted that the conclusions of the Mandal Commission have been arrived at without any real analysis and has no basis at all. The criterion chosen and the manner in which the analysis has been carried out is also without basis and thus discriminatory classification without any real analysis to discern the real "Backwards" would lead to inclusion of "forwards" among the "backwards" thus leading to reverse discrimination.

The recommendation of the commission for determination of backward classes is nothing but fiction and assumption for which there are no answers. The commission has adopted an approach of "lazy shortcuts" to arrive at a "Rough and ready" answer to the complicated issue of reservation. It is submitted that such lazy shortcuts far from correcting the wrong only perpetuate them and actually force the people into the by lanes of caste which is exactly what the forefathers sought to avoid. Fate of our great country - its egalitarian and secular ethos has been made subservient to the adhoc assumptions made by the commission. The commission therefore misdirected itself when it adopted caste as a basis for backwardness and then again erred in assuming the quantum of backwardness vis-à-vis the total population.

"Sir, do we still have that goal of a castiest society ………

The speech of the former Prime Minister and the leader of Opposition Shri Rajiv Gandhi in the Parliament criticizing the Mandal report, its recommendations and the resolve of the V.P. Singh government to implement the same, truly reflects the aspiration of modern India (Annexure IV).

Current and not the Historic Backwardness

The manner for identification of "Backward Classes" can be discerned from the Language of Article 340 itself. It is submitted that the identification of the backward classes ought to be in relation to the work conditions existing at the time of conferment of benefits for the purpose of upliftment. Thus the identification of Backward classes on the basis of "Traditional Occupational castes (based on 1891 census) is unconstitutional. The said castes need not necessarily be facing the "difficulties" so as to entitle them benefits of affirmative action. It is submitted that all the "castes" are nothing but the "traditional occupations" such as a Teli, Sunar, Chamar etc. The persons of the said "caste" may definitely be continuing with said caste but they need not necessarily be pursuing the said occupations on the basis of which they were considered as "backward". Thus it is submitted that classification if at all required may be by way of "Current Vocations" and not "Traditional Occupations".

Rectifying past wrongs or creating new wrongs?

The claim that reservations are justified because these communities have been excluded for centuries is problematic. It invokes the principle of compensatory justice and suggests that communities previously harmed must now be suitably recompensed. There is no doubt that communities that have been victim of forced segregation have been harmed, yet the language of compensation does not provide an adequate justification in favor of these victims. Principle of compensatory justice rely on pinpointing clearly the victim and the victimizer and the precise nature of harm done by the later to the former. This creates several difficulties as the degree of harm suffered may vary within the identified Community. Even when all the victims are supposed to be harmed equally, it remains to be seen whether all the other members of society were victimizers.

There is a need to address the issue of existing inequalities and continuing injustice. But neither compensation nor rectifying the past wrongs offer viable answers. Indeed, as Hagel reminds us, in the act of rectifying past wrongs we may create new wrongs.

If we rely on the principle of compensatory justice, how can (so called) upper caste Hindu be held responsible for backwardness of Muslims who held the power for centuries?

An individual is underprivileged, not the Class

The most important reform that is required in the present situation is a departure from the present "Group Centric" affirmative action to "Individual Centric" benefits. At present benefits are being extended to a "class" (correctly described as "caste") which has resulted in formation of unholy "caste based" lobbies which is not in the interest of one Nation State. At the outset this groupism has to be disbanded and therefore emphasis on extension of benefits has to shift from "the conditions that a group satisfies" to the conditions that "an individual satisfies" for claiming benefits of state protection. Thus the state thereafter has to lay down secular conditions which apply to all individual irrespective of their caste, religion, sex, place of birth etc. The individuals satisfying these conditions would thereafter be collectively called the "Backward Classes" to muster the Constitutional mandate. In the words of Pandit Nehru :

"……I don't particularly like the words "backward classes of citizens" and I hope the select committee will find some better wording. What I mean is this; it is the backward individual citizen that we should help. Why should we brand groups and classes as backward and forward……"

Caste is NOT the only disadvantage

In Indian society, caste is not the only obstacle in the way of development of an individual. Economic conditions, educational opportunities and discrimination on the basis of gender also contribute to the denial of opportunity to express one's true merit and worth. It is important, to discuss reservation in the holistic context of much required social restructuring and not to convert it into a fetish of 'political correctness'. Admittedly, caste remains a social reality and a mechanism of oppression in Indian society. But can we say that caste is the only mechanism of oppression? Can we say with absolute certainty that poverty amongst the so-called upper castes has been eradicated? Can we say that the regions of Northeast, Jharkhand, Chhattisgarh are on par with the glittering metros of Delhi and Mumbai? Can we say that a student from a panchayat school in Bihar is equipped to compete with an alumnus of Doon School on an equal footing, even if both of them belong to the same caste group? After all, this society discriminates against girls even before they are born. What to talk of access or opportunities, they're denied birth itself. Such discrimination exists across religious and caste lines.

Violation of cardinal principles that institutions in a knowledge based society will have to follow

Employment is not a fundamental right, and hence the Constitution makers entertained the possibility of reservations in employment, whereas, education being a fundamental right, even the constitution makers did not consider reservation in educational matters.

Reservation in higher education is detrimental for the progress of country. Even in Malaysia, who follows a most rigid quota system, reservation has been abolished in higher education. Also, in South Africa, having the worst history of racial discrimination, there is no reservation in higher education.

Some of the votaries of caste-based reservation in our country liken it to the American model of affirmative action. Nothing could be further from the truth. As a matter of fact, the spirit of affirmative action is contrary to the stagnant quota system in place in our country. The American system does not have any pre-fixed quota for those belonging to historically disadvantaged ethnicities. Marquita Sykes defines the American model as follows: " Affirmative action, the set of public policies and initiatives designed to help eliminate past and present discrimination based on race, color, religion, sex, or national origin. This model is all about the provision of opportunities to those belonging to the historically disadvantaged communities so that they can be integrated into the mainstream. The American model does not focus exclusively on ethnicity; gender and economic factors are taken into account as well.

The government's recent decision to extend quotas for OBCs in central institutions violates four cardinal principles that institutions in a knowledge based society will have to follow: they are not based on assessment of effectiveness, they are incompatible with the freedom and diversity of institutions, they more thoroughly politicize the education process, and they inject an insidious poison that will harm the nation's long-term interest.

These measures will not achieve social justice. We are as committed as anyone to the proposition that every student must be enabled to realize his/her full potential regardless of financial or social circumstances. Achieving this aim requires radical forms of affirmative action. But the numerically mandated quotas the government is proposing are deeply disappointing. These measures foreclose any possibility of more intelligent targeting that any sensible program should require. What is needed is space to design more effective mechanisms of targeting groups that need to be targeted for affirmative action. For instance, there are a couple of well-designed deprivation indexes that do a much better job of targeting the relevant social deprivations and picking out merit (The Oversight Committee Annexure XIII on JNU Model for admissions ). The government's action is disappointing, because it has prematurely foreclosed these possibilities. In foreclosing these possibilities the government has revealed that it cares about tokenism more than social justice. It has sent the signal that there is no room for thinking about social justice in a new paradigm.

The measures the government is contemplating violate the diversity principle. Why should all institutions in a country the size of India adopt the same admissions quotas? Is there no room at all for different institutions experimenting with different kinds of affirmative action policies that are most appropriate for their pedagogical mission? How will institutions feel empowered? How will creativity in social justice programs be fostered, if we continue with a "one size fits all" approach? Could it not be that some state institutions follow numerically mandated quotas, while others are left free to devise their own programs? The government's announcement is deeply disappointing because it reinforces the cardinal weakness of the Indian system: all institutions have to be reduced to the same level.

As a society we focus on reservations largely because it is a way of avoiding doing the things that really create access. Increasing the supply of good quality institutions at all levels (not to be confused with numerical increases), more robust scholarship and support programs will go much further than numerically mandated quotas. We are not doing enough to genuinely empower marginalized groups, but are offering condescending palliatives like quotas as substitute.

Apart from the submissions above, reservations or Numerical quotas undercuts the very basis of the functioning of an institution at a micro level and the society and the country at the macro level. The logic that "OBC" students would only be taken care of by "OBC" professors or interests of SC students would be considered only by SC teachers is highly dangerous and hits at the very roots of a system, it creates an atmosphere of distrust and makes it very difficult for the modern institutions like the Universities, hospitals and other institutions to work properly and function effectively. It is submitted that the teachers and the professors are not identified by their caste etc. but by their ability to impart education irrespective of the caste.

Unreasonable inclusion and continuation of castes with 'Backward' status: Reverse discrimination

That there are various examples of unreasonable continuance of castes and communities in the lists irrespective of the recommendations made by the commissions for removal of such communities from the list of Backward Classes. For example, all the backward class commissions of Karnataka had recommended that Lingayats were a part of forward communities and therefore they should be removed from the list comprising the "Backward Classes". The said recommendations were however never accepted on account of protests by the members of the community who desired to retain the benefits (attached with the privilege of being a Backward Class) irrespective of the need which is the very basis of the reservation policy. Fearing political backlash, the government succumbed to the pressure exerted by the "Lingayats" who along with the "Vokaliggas" constitute the two most dominant communities in Karnataka and in fact most of the chief ministers of the state have come either of the two communities. The status quo remains even today and the communities are still classified backward. The similar situation prevails in Tamil Nadu, Kerala, UP, Bihar and other states where ruling castes continue to designated as backwards.

It is submitted that due to prolonged conferment of benefits, unholy vested interests have been created and fortified around the reservations and any "down gradation" by exclusion from the list is marked with severe protests. It is submitted that reservations were never meant to be a permanent feature in the constitutional scheme with "equality" as a theme and could have been applied only as a means of "affirmative action" to bring about parity in the condition of the communities. In the present political setup however, the discriminatory benefits continue even after parity is achieved resulting in reverse discrimination.
Caste in our country has become a tool in the hands of the governments who have made the list of backward classes into a tool for furthering their political ends. The high objective of upliftment of the really poor and backward has been overtaken by the greed for personal growth through segmentation and politicization of castes and new additions are being made to the list on account of political pressures rather on a basis of any analysis to determine the backward classes. The commissions appointed by the government have also become a tool in the hands of the government to realize their political ends.

Fake backwardness : Who needs reservation ?

Look at the three sets of data, published in newspapers/books"

In 2005 MBBS admission in Tamil Nadu, the cut-off in open competition was 294.83 marks while for Backward Classes it was 294.59 (the difference was a mere 0.24 marks out of 300 or 0.08 per cent). For Most Backward Classes, the cut off was 292.50. Over and above that, BC, MBC and SC students cornered 374 of the 433 seats in the open category.

According to a report in The Hindu (August 23, 2004), admissions to the 12 government medical colleges in Tamil Nadu were: Total 1224; SC - 231; BC+MBC - 952 and Forward Category - 28. In the open competition, only 31 in the FC category qualified but the numbers for the others were BC - 315, MBC - 45 and SC - 5. The lowest marks under various categories were: FC - 295.74; BC- 294.26; MBC - 292.13; and SC - 287.50.

Similarly, the Oversight Committee quotes a study from Banglore:

While OBC students have a pass percentage of 93.01 to 97.4, general merit students recorded just 66.09 to 94.77 from the 1998-2000 batch to 2001-2005 batch

Clearly, these data show that the so called backward students are not backward at all. They occupy more than 90% of seats in open quota and their cut-off marks are equivalent. to general category.

SC/ST and OBCs are different

The historical claims of the Scheduled Castes and Scheduled Tribes and the nature of the deprivations they face are qualitatively of a different order than those faced by Other Backward Castes. It is plainly disingenuous to lump them together in the same narrative of social injustice and assume that the same instruments should apply to both. Reservations provided to the SCs/STs were visualized as instrument of "inclusion" against the continued "exclusion" or "segregation". On the other hand, OBCs (as defined by the Government) were never socially excluded. It is submitted that the argument put forward regarding oppression for thousands of years (without going into the efficacy of the said claim) does not hold good so far as the OBC's are concerned. The classes like the Jats, Yadavs etc. who have now been accorded OBC Status have been rulers for a number of years and own huge areas of land and as such should not be entitled to the benefits of reservations They were integral part of Hindu society availing all the privileges. In fact, upper class OBCs have been responsible for the worst of atrocities committed against Scheduled Castes (Annexure V). The first Annual Report of the National Commission for Scheduled Castes also testifies the above facts.

Constant evaluation, feedback, and exclusion

The policy of affirmative action which empowers the state to continue in its path of positive discrimination is a form of the doctrine of classification and can therefore be applied only till the unequals remain unequal. Any extension of benefit thereafter would necessarily imply reverse discrimination. It is submitted that to ensure that the affirmative does not become negative, regular review of the policy of reservation (so also other means of affirmative actions) is necessary which cannot be a temporary phenomena but a permanent fixture in the wholesome policy of affirmative action. In India, the government has no system of continuous evaluation and no evaluation of the policy has ever been done. There is no ground for denial of equality and a wholesome review of the policies of discrimination at least to enquire and see its real benefits and the real beneficiaries. In this regard, Hon'ble Supreme Court in the case of A. Peeriakaruppan (Minor) v. State of T.N.( (1971) 1 SCC 38, at page 49) observed :

"……But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be allowed to become a vested interest……"

Income not the caste is issue

The NSSO Survey of 1999-2000 shows that a person's educational level is directly proportional to his/her economic condition. The NSSO conducted a survey to determine literacy rate and level of education of different sections of society on the basis of their economic condition, with MPCE being the criterion to judge it. MPCE or 'Monthly Per Capita Consumer Expenditure' is the average amount of money spent on one person of a household in one month. For example if average expenditure of a household is Rs. 5000 and there are 5 members in the house, then MPCE of the household, as well as of each member of the household is Rs 1000. The lower MPCE indicates a poorer living while a higher MPCE indicates richer living.

From the above figure the following can be discerned

(a) Poorer sections of society have miserable representation in education. With improving economic condition, people's educational level is found to be impressively increasing.

(b) More the MPCE of a category is, more are the no. of people of that category in higher educational levels. Literacy rate of categories with higher MPCE is better than that of categories with low MPCE.

(c) The number of graduates from the lowest MPCE class - only 6 (out of 1000); while this count for middle class is 51 and 425 for the highest MPCE class. It can be inferred right away that the level of education one gets depends mainly the family's economic condition.
In view of the above, it is submitted that caste as a basis for providing reservations is not justified. The need of a person is directly relatable to the income he can generate and in case of lower income groups, the amount of disposable income available for 'lesser' necessary expenditures like education results in lower educational levels. The problem can be solved by providing the poor (re-stressing on the word "poor" and not backward caste) with avenues within there means so that even with lower income levels they are able to educate their young. The role of a socialist government comes at this level when it facilitates providing for education to the people who need it the most.

As per the National Sample Survey (NSSO) of 1999-2000, and the Reproductive and Child Health Survey (RCHS) that was conducted over two years from 2002 to 2004 over 600,000 households across the country - the Scheduled Caste children had an average schooling of around 3.2 years versus 3.9 for the OBCs and 5.6 for the upper caste Hindus. Though the government is keen on reservations at the graduate level, the real issue is the lack of adequate schooling since, without enough SC/ST/OBC passing out of high school, they cannot be admitted to college. It is submitted that the level of education is in fact relatable with the income level and not the social status. This, it is submitted, can be seen from the following:

YEARS OF SCHOOLING

  SC OBC General
Poorest rural quintile 1.6 1.7 2.2
Richest rural quintile 5.1 5.5 6.1
Poorest urban quintile 2.6 2.8 3.4
Richest urban quintile 8 8.3 9.2
Bihar 1.9 2.9 4.9
Maharashtra 4.4 5.1 5.7

Take the poorest income quintile of rural population, and it can be seen that there isn't such a significant difference in the education levels across castes - it is 1.6 years for SC, 1.7 for OBCs and 2.2 for upper caste Hindus. Take the same castes, the same lowest income quintile, but change the setting to urban areas. And you find that the same SC child now has 2.6 years of education, or two thirds more; the increase for OBCs and upper castes is equally high. If caste was to be the sole/major determining factor, then surely the difference between the education levels would be a lot higher between castes in the same income group than they are for the same caste across different income groups. The fact that there are such huge differences between rural and urban areas, it would appear, is also due to the income difference between rural and urban areas.

If in addition we examine the data across states, it shows up equally startling results. The average SC in Bihar has 1.9 years of schooling as compared to 2.9 for OBCs and 4.9 for Hindus (RCHS data). But, in Maharashtra, the figures are 4.4, 5.1 and 5.7 - that is, the relative inter-caste differences don't hold good across states. And for all the talk of south India being an OBC paradise, there are stark differences between various states like Tamil Nadu and Kerala. Yet the government seeks to pursue the one-size-fits-all approach which is not at all justified

Top without base

The condition of infrastructure and staff at the primary and secondary level is of some concern and the government - especially the Ministry for Human Resource and Development which has proposed increased reservations, should work towards improvement in this area for "Real" affirmative action. According to the National Institute of Educational Planning and Administration (in 2003) the state of affairs at the primary level was as under:

  1. In 62,996 schools in country do not have school building and are operating in tents or under the trees.
  2. In 70,739 Primary Schools - No class room.
  3. In 95,003 Primary Schools - Single Class room.
  4. In 8,269 Primary Schools - No teacher
  5. In 1,15,267 Primary schools - Single teacher
  6. In more than 60,000 schools, the Pupil: Teacher Ratio is greater than 100:1 while the Acceptable ratio is less than 40:1
  7. In 84,848 Schools - No black board
  8. In More than 1,00,000 Schools - No electricity.

Apart from the above, according to the NCERT (In 1998), Only 34.6% of Govt. Schools had safe Drinking water, 13.2% had Urinal , 4.9% had Urinal for Girls, and only 6.0% had a Lavatory. While the government promises a spending of about 6% of GDP for the development of education, the reality has been to the contrary. The Government spending in the years was as under:

2000-2001 4.1%
2001-2002 4.3%
2002-2004 3.8%
2004-2005 3.5%

Approximately, 80 Million of India's 200 million children between six and 14 years of age are not in school at all (who now have a fundamental right to education under Article 21A of the Constitution). Of the remaining 120 million, only 20 million are expected to reach the tenth year of school, with the rest dropping out along the way. The data speaks for itself.

GROSS ENROLEMENT RATIO(2002-03)

Category Primary(I-V) % Upper Primary (VI-VIII) %
Total 95.39 60.99
SC 95.61 56.28
ST 98.67 48.19

DROP OUT RATE (2003-04)

Category Primary(I-V) % Upper Primary (VI-VIII) %
Total 52.32 62.69
SC 59.42 73.13 (as high as 90% in Bihar )
ST 70.05 48.19

Source : Annual Report 2004-05, Ministry of Human Resource Development

In addition the lack of capacity to take in the students in the next higher class i.e. secondary (IX and X) and senior secondary (XI and XII) is again of concern. At present the ratio of primary schools to secondary schools is nearly 3:1 and it is as high as 5.2:1 in the states like Uttar Pradesh and West Bengal. Out of every 1000 villages in India, 711 don't have middle school, 881 don't have secondary school, 959 don't have high school, 994 don't have college with degree course and 997 don't have ITI.

(number of villages in every 1000 villages)
Year Secondary School High School College ITI Non-Formal Educational Center
1991 105 38 4 2 107
2002 121 42 6 3 69

Source: NSSO Report No. 487 - Report on Village Facilities, 2002 and Central Statistical Organization - Selected Socio-Economic Statistics India, 2002

What about quality ?

ASER, the Annual State of Education Report, was undertaken by Pratham, an NGO working in the field of elementary education, with help of more than 750 voluntary agencies, and several concerned citizens. This survey was carried out between October and December 2005. It covered about 190,000 households and 330, 000 children in 485 districts of 28 states. The results were released on January 17, 2006 by Dr. Montek Singh Ahluwalia, Deputy Chairman of the Planning Commission.

The findings of ASER survey were disturbing. It reflects the poor quality of primary education in the country. The report shows that 35% of children in the 7-14 age group can not read a simple paragraph (class I level difficulty) in their mother tongue and almost 60 percent of all children cannot read a simple story (class II level), 47% of children of age group 11-14 years could not do a simple division. The condition is even worse in states like Tamil Nadu and Karnataka. Among students studying in class V in public school in Tamil Nadu and Karnataka about 50% cannot read a level II text, and about 70% cannot do a simple division (3 digits divided by 1 digit). The condition of private school is not far better. They leg behind by a difference of 10% only.

Performance of States based on % of children std V

State % of student in Class V who cannot read % of students in class V Level II who cannot solve simple division
Karnataka 49.4% 76.2%
Tamil Nadu 50.0% 68.5%
Uttar Pradesh 50.5% 68.2%
Madhya Pradesh 48.6% 62.5%

Good education, NOT reservations

The students clearing the primary level schooling are unable to get admissions in the secondary schools. It is submitted that building up of capacity in relation to higher education has to be strengthened at all the levels so that the students passing out from the primary level is able to get admission in secondary level and then to the Senior secondary level and thereafter to the Higher educational level.

Thus the attention needed in the society today is to revamp the educational infrastructure at all levels such that all the children of all communities are given education and the drop out rates is reduced. The government needs to take effective steps in finding out the reasons for the drop out and address the said issues which would be in reality the social development program. The present policy of fast tracking and providing reservations does not address the problem which is leading to the under performance of the "depressed classes" (not depressed castes as the needy are in all castes

It is submitted that the reservation is an ineffective and divisive measure and for a long lasting and comprehensive solution the need and requirement is the development of good education facilities and ensuring that these facilities are available to all, primarily at the primary levels and thereafter increasing the infrastructure at higher levels so as to achieve "excess capacity" at all levels. This would ensure quality education to all and thereafter the emphasis for classification to extend benefits would also loose its importance.

Thus it is submitted that with an increase in the literacy levels, the need thereafter is to provide for educational avenues i.e. at the first instance at the primary level and then at the secondary and upper levels. Reservations are not the solution and the need is to provide for the capacity that would be able to meet all the demand for admissions at the said levels. It is submitted that with the increase in literacy rates and educational levels the upliftment of the poor and depressed sections which the constitution makers desired would be attained with passage of time. Putting the policies of affirmative action on a fast track by prescribing reservations at all levels would be against the principles of equality and would also result in reverse discrimination.

Why OBCs trailed behind in higher education ?

The caste groups belonging to the OBCs include predominantly peasant and artisan castes. These castes were never excluded from the main stream education. As their profession did not require formal education, the target of higher education was not pursued aggressively. This is similar to business communities (Manwaris, Gurratis, Sindhis) where formal education played minimal role in their success. Till recently, these communities had very low literacy rate, despite being very successful in business. OBCs had a good record of primary education. As early as 1825, Collectors from several districts in Madras Presidency and Bengal-Bihar .report that number of "Shudra" students studying in schools was two to six times of the number of Brahmin Students. (Annexure VI). Even in higher education, significant proportion of students belonged to Shoodra castes (Annexure VII). Education was more of vocation oriented. Writing skills were not essential. Even among Brahmins, writing skills were acquired only by very few (see First Backward Class Commission). For most of the castes in Shoodra varna, formal higher education was not contributory to their earnings. Even after independence, educational achievements did not translate into economical achievements and was not a definite contributory factor for survival. Unavailability of education further discouraged these castes. In the era of green revolution, the peasant castes did not pursue education and in words of famous Dalit writer Chandra Bhan Prasad …'preferred tractors over good schools'. Education was considered for idles only. Once the green revolution reached a plateau, and because of diminished career options for artisan castes due to industrialization, education became important. This is reflected in abysmally low literacy in older generation of OBCs, but a proportionally very high numbers of OBCs in higher education. As per NSSO data, OBC represent 25.9 % of higher secondary pass outs and 23.9 % of university enrolments.
Are OBCs under-represented in higher education ?

In the entire debate surrounding the proposal for reservation of 27 percent of seats in higher education, a key question of immense practical relevance in determining the percentage of reservations in higher education has been overlooked. The question is whether the OBCs of college going age with the qualifying level of education are under-represented in higher education to the extent of 27 percent or more of the total enrollments. Data show that the extent of OBC under-representation is less, much less, than 5 percent (Annexure VIII )
In relation to their share among those having a higher secondary certificate or equivalent qualification (26.5 percent in urban India and 30.7 percent in rural India), in 1999-2000, the OBCs in urban India had a share of a little over 25 percent (over 27 percent in rural India) among those attending under-graduate programme. So that, they are under-represented by less than 2 percentage points (a little over 3 points in rural India) in Graduate enrollments. Even among those attending under-graduate studies in technical subjects (agriculture, engineering and medicine, taken together), OBC under-representation is under 4 percent in urban India, while in rural India they are marginally over-represented.

OBCs strong powerful and dominating

Few groups in independent India have made progress on a scale comparable to the OBCs. As a single group, they form the strongest political block (ANNEXURE IX).The Oversight Committee brings out certain facts about the socio-economic status of OBCs:

In so far as health indicators are concerned, the status of the OBCs is only slightly different than that of the people belonging to the 'general' category, but quite dissimilar to that of the SC/STs. In states such as Assam, Haryana, Karnataka, Maharashtra and West Bengal, the health indicators of OBCs was even better than that of the 'general' category people.

The land-holding pattern of OBCs and 'general' category people shows only a slight variation. SCs are the worst lot, as STs have relatively better ownership patterns.

Unemployment and under-employment, as measured by the current daily status, among the OBCs is the lowest among all social groups in the rural areas, but slightly higher than the upper castes in the urban areas.

However, when it comes to open unemployment, as measured by the usual principal status, the condition of the OBCs is across the board worse than that of the 'general' category people.
OBC students from regions other than the four southern states are less likely to reap the benefits of reservation.

These data clearly show that OBCs are not truly backward, and the country needs a new definition to define backwardness.

Creamy Layer

In Indira Sawhney II, the judges clearly stated why the creamy layer must not remain in the OBC quotas.

"When governments unreasonably refuse to eliminate creamy layers from the backward classes or when governments include more and more castes in the list of backward classes without adequate data and inquiry, a stage will be reached soon when the whole system of reservation will become farcical and a negation of the constitutional provisions relating to reservations."

"Unfortunately, in the decision making process which enables the forwards to get into the list of backward classes or which enables creamy layer to grab the benefits of reservation, it appears to us that the voice of the really backwards, namely, the voice of non-creamy layer, is nowhere heard. Else there is no reason why the state should decide not to exclude the 'creamy layer'."

The Oversight Committee, though it did not decide finally, observes:

1.5. The matter of applying the creamy layer concept in respect of reservations for students belonging to the OBCs in institutions of higher learning was discussed in the committee. The Committee considered the argument that the idea of allowing the creamy layer the benefit of reservation would work against the interests of the poorer members of the OBCs and thereby defeat the underlying purpose of making higher education inclusive and equity based.

1.6. Appendix-2 examines in detail the status of socioeconomic development of OBCs in respect to such parameter as relate to poverty ,health, education. Unemployment, workforce participation, land ownership etc. The analysis of NSSO data clearly brings out that inclusion of the creamy layer will result in reserved seats getting pre-empted by the OBCs from the top two income deciles at the cost of poorer income deciles of OBCs. Thus almost all rural OBCs and urban OBCs from the Northern, Central, and Eastern regions of India will be deprived of the intended benefit of the reservation.

In the end it is submitted that the need for affirmative action is undeniable but the manner in which the government seeks to go about the task is wholly unjustified and unwarranted. The policy as it exists today is not only discriminatory and arbitrary but is also derogatory and antithesis to the larger goal of an egalitarian society. The need is to look for methods whereby the needs of the persons who deserve governmental protection actually receive the fruits of the policy and at the same time no one is discriminated against. It is submitted that implementation of "Affirmative Action policies" does not necessarily entail violation of the principle of equality and discrimination against the other sections of the society. As stated in the preceding paragraphs - providing ample educational avenues for any dearth of funds in this direction. The need is to tap the resources and also put in place proper regulatory mechanism to have effective quality control. At the same time there is need for an impartial regulatory body to monitor different aspects related to the issues of affirmative actions.

ANNEXURE I

Violation of Terms of Reference by Mandal Commission
Mandal Commission was constituted under Article 340. Lets see what Article 340 says:

Article 340

We first analyze Article 340 , emphasizing some phrases in bold. The Article reads thus:

1. The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and difficulties under which they labor and to make recommendations as to the steps that should be taken by the Union or the State to remove such difficulties and to improve their conditions 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, and the order appointing such Commission shall define the procedure to be followed by the Commission.

2. A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out facts a found by them and making recommendations as they think proper.

3. The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament.

Terms of References of Mandal Commission:

In 1979, the Mandal Commission was setup under Article 340. The terms of reference of the Commission were:

"(i) to determine the criteria for defining the socially and educationally backward classes;
(ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State; and
(iv) present to the President a report setting out the facts as found by them and making such recommendations as they think proper.
In this connection the commission may also examine the recommendation of the Backward classes commission appointed earlier and the considerations which stood in the way of the acceptance of its recommendations by Government"

Let us examine how Mandal has ruthlessly violated each of the Term of References.

A. To determine the criteria for defining the socially and educationally backward classes;

The First term of reference is "to determine the criteria for socially and educationally backward classes. Instead of determining any objective criteria for 'backwardness' as per the Presidential reference, the Mandal Commission devised four approaches for determination of backward castes (Vide para 12.7 of the Chapter XII of the Volume I of the Mandal Report.) :

i) Socio-educational field Survey;
ii) Census report of 1961…
iii) Personal Knowledge gained through extensive touring of the country and receipt of voluminous public evidences as described in Chapter X of this report.
iv) List of OBCs notified by various state governments.

Mandal summarizes his work regarding identification of OBCs in Summary of the Report (Chapter XIV):

"Chapter XII----Identification of OBCs Volume I, Page 63)

A large number of castes were identified as backward in each state as a result of the Socio-Educational Survey. As this survey covered only 2 villages and one urban block per District, a large number of castes were naturally left out. Moreover, in some cases, the size of sample was so small that the results were not dependable.

In view of this, two supplementary approaches were adopted to prepare complete lists of OBCs for each State. First, State-wise list of the 11 groups of primitive tribes, exterior castes, criminal tribes, etc. contained in the Registrar General of India's compilation of 1961 were culled and included in the Commission's lists of OBCs. This was done as the social and educational status of these castes and communities was more or less akin to Scheduled Castes and Scheduled Tribes. Secondly, based on the public evidence and personal knowledge of the Members of the Commission, State-wise list of those OBCS were drawn up which could not be covered by the socio-educational survey.

It was a result of this three pronged approach that State lists of OBCs (Volume -III) were prepared.

From the results of the field survey it was seen that some of the well- known OBCs which were also included in the lists of backward classes notified by various State Governments were not ranked as 'Backward' in the survey. This is unavoidable in any sociological survey based on Statistical methods. Such aberrations were corrected in the light of the other field evidence available with the Commission.

The set of eleven Indicators (criteria), being caste based, could not be applied to non-Hindu communities. In view of this, a separate set of 3 criteria was evolved for the identification of non-Hindu backward communities.

On the basis of the available census data, the population of Hindu and non-Hindu OBCs was estimated to be 52% of the total population of India. This is in addition to the population of the Scheduled Castes and Scheduled Tribes which amounts to 22.5%. "

Commission was just asked to suggest criteria for backwardness. It is clear that the Commission, instead of determining any criteria for backwardness, suggested four approaches, which could not meet the requirements of the Terms of the Reference.

However, the Commission used 11 criteria for the purpose of the "survey" which was just one of the four approaches. It may be claimed by the Government that these 11 criteria meet the requirement of the term of reference No 1. Without going into merits and demerits of criteria and shortcomings of the Survey, let us examine the validity of these criteria:

1. Firstly, the Mandal Report itself castes doubts on its survey (para 12.9 of the Chapter XII of the Volume I of the Mandal Report.) :

"In this context it may also be noted that in some cases, the findings based on socio-educational field survey happened to be inconsistent with the living social reality. For example the social status of Kasera caste in Bihar, Dhobi in Gujarat, Agasa in Karnataka, Kumbhar in Rajasthan, Badager in Tamil Nadu, etc. is known to be very low. Yet these castes scored below 11 points and thus qualified for ranking as forward. Such aberrations are bound to occur in any sociological survey which is based on statistical methods owing to lopsidedness of sample covered."
Thus, it is clear that the criteria even used for survey were not capable of identifying well known OBCs.

2. Secondly, the survey could cover only 406 of 3743 ( 10.85% ) caste groups in Mandal list (Supreme Court of India, Indira Sawhney vs Union of India, para 539(v) )

Thus, these 11 criteria were not one of the Commission's recommendations or conclusions, but were used during the process of survey. They were one of the means adopted by the Commission to arrive at some conclusion, whereas, the Commission was expected to make it one of the goals to suggest the criteria for identification of backward classes.
Furthermore, the Commission used different sets of criteria for Hindus and non-Hindu communities. This discrimination on the basis of religion is against the basic nature of the constitution.

To sum up, the Commission did not recommend any universally applicable set of criteria.

B. Educational Backwardness

The commission has he mandate of defining not only social backwardness, but educational backwardness also.
To find out educational backwardness, the Commission has two sources:
i. The Commission has tried to get information about the level of literacy from the State Governments through its questionnaire (Appendix II, para 45, 46, 59, Volume II, page 70).
ii. Socio-educational field survey

Now look what the Commission has got:

i. Mandal himself says "No State Government could furnish figures regarding the level of literacy and education amongst Other Backward Classes" (Para 9.30, page 39, Chapter IX).
ii. The survey could have covered (if at all performed) only 0.19% of population and only 10.85% of caste groups.

Thus, the Commission did not possess any information about the educational backwardness of different caste groups. It is totally against the Terms of Reference and mandate of Article 340 as the very first term of reference was to define "the Socially and Educationally Backward Classes".

C Not to enumerate or enlist

Nowhere in its Terms of References was Mandal Commission given a mandate to determine the number of OBCs and enlist them.

Now, lets have a look at the Terms of References Of the First Backward Class Commission ( Kalelkar Commission):

(a) To determine the criteria to be adopted in considering whether any sections of the people in the territory of India (in addition to the Scheduled Castes and Scheduled Tribes specified by notifications issued under the Article 341 and 342 of the Constitution) should be treated as socially and educationally backward classes; and, in accordance with such criteria, prepare a list of such classes setting out also their approximate number and their territorial distribution;

(b) To investigate the conditions of all such socially and educationally backward classes and the difficulties under which they labor; and make recommendations (i) as to the steps that should be taken by the Union or any State to remove such difficulties or improve their conditions; and (ii) 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;

(c) To investigate such other matters as the President may hereafter refer to them; and

(d) To present to the President a Report setting out the facts as found by them and making such recommendations as they think proper.

It is obvious that the Kalelkar Commission was required to prepare a list of Socially and Educationally Backward classes setting out their approximate number. On the contrary, the Mandal commission was required only to determine the criteria for defining the SEBCs.

D. Socially and Educationally Backward classes ……….. and difficulties under which they labor

The Article 340 itself lays down the conditions to guide the commission. The sub-article (1) reads as follows:-

"………. to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labor …..

Under sub-article (1) above, a commission is required to identify the backward classes and "……the difficulties under which they labor……". It is submitted that in terms of the above, the commission was required to state the conditions of the so called backward classes with specific reference to the difficulties under which they labor in present times. Thus necessarily it had to identify and find out the current existing conditions of the classes. On the basis of the above it can also be inferred that the "traditional occupational castes" cannot be taken as a basis rather "current occupations" and people occupied in such vocations had to be identified so that such people deserving the benefits get the benefits.

Let us see How Mandal proceeded:

Mandal used the CASTE INDEX OF 1891 CENSUS which gives information about the distribution of the various castes in sixty occupational categories ( Mandal Commission Report, Appendix XII, page 99, para5 , which reads as follows:

" As regards identification of castes with traditional low status, considerable amount of data are available in the Census Reports upto 1931. Similarly, for ascriptive status of occupation also the earlier Census Reports provide considerable information. Caste index of 1891 gives information about the distribution of various castes in sixty occupational categories. 1901 Census gives a ranking of castes and also an indication of social privileges and disabilities associated with them. The subsequent Censuses upto 1931 give an indication of the social mobility movements among the castes and process of change in their respective status. If a comparative statement is prepared indicating the baseline data available in 1891 and 1901 Censuses and subsequent changes, the same will give a fairly clear picture of the pattern that had taken shape in the pre-independence period.)

Mandal totally ignored the changes which were taking place in the Indian society at the dawn of industrialization in pre-independence era and in industrialized post-independent era.
Caste-occupation association was rapidly disappearing from the Indian society in early 20th century. In United Province in 1911, only in 15 out of 42, and in 1921 , in 11 out of 29 castes , 50% or more of workers were following their traditional occupation as their principal occupation. Taking all Hindu castes together, in 1911, only 29.3% of the workers were following their traditional occupation.

The following table shows percentage of workers engaged in traditional occupation in United Province in 1911, and 1921:

Caste Traditional occupation % of workers engaged in traditional occupation in 1911 % of workers engaged in traditional occupation in 1921
Brahman Priest 7.9 7.1
Kayastha Clerk 32.7 30.6
Ahir, Yadav Pastoral 9.2 10.9
Kachhi Cultivators of cash and special crops 14.6 15.3
Lohar Blacksmith 31.4 32.0
Gadaria Shepherd 23.0 21.0
Luniya Saltpeter 5.8 6.2
Chamar Leather Work 3.8 5.1

(Source: Pradipta Chaudhury in "Caste, Occupation and Economic Status in the United Province, 1901-1931",Working paper no 2 of 2003, Centre for Economic Studies and Planning, Jawaharlal Nehru University, New Delhi )

Excerpts from the Census Reports are also startling:

The Census Superintendent cited the 1911 Report………. the traditional occupations are being given up owning to the functional revolution which is in progress……,( Census of India,1931,Pages 323-24).

The Census Offices of the Rajputana Agency were among those in which change was the slowest, and yet even in the Report for them it is mentioned that "a report by traditional or general occupation would be valueless, for traditions are rapidly changing and in these days a Teli may be a merchant and a Rajput a mill operative."( Census of India 1931, Page 123).

The Report from the Nizam of Hyderabad's Dominions, spoke of a "caste upheaval". "Besides social and religious upheavals, there are equally powerful economic forces at work, slowly undermining the Hindu caste system," it continued. "The introduction of machinery and labor-saving devices has revolutionized the theory that caste is essentially a functional division on the lines of medieval Western grade guilds. The rigidity with which son followed father's occupation is weakening. Brahmins are turning their hands to agriculture, trade, medicine, law, and almost every other conceivable occupation. Chamars, Dhers and other hindered castes are giving up their traditional calling and are engaged as laborers I fields and factories, rubbing shoulders with high-caste men. Education and means o communication have played no small part I making the caste system flexible and adaptable."1931,247,54-55.

Report for Jammu and Kashmir gave a typical illustration. The Thakkars had been treated as a separate caste in earlier Censuses, it noted. The distinction between them and the Rajputs "was based mainly on occupation and customs, the former taking to agriculture as their main occupation while the later regarded service as their domain. The Rajputs treated agriculture contemptuously and refused to inter-dine or give their daughters in marriage to Thakkars." But now, "The traditional occupation having lost its significance in modern times the better minds of the communities awakened to the need for solidification and accomplished the fact" The Thakkars had completely disappeared as a separate from the Census.( Census of India, 1931, Pages 312-3,55.

Census Report for Bihar and Orissa narrated the effects that the works in Jamshedpur were having: "conditions of life in modern industrial centers are compatible with a strict observance of caste distinctions, it recorded, and cited the observations of the subdivisional officer who reported that, while inter-caste marriages had not till then increased, "there has been a distinct weakening of caste government and a development of toleration. Many of the castes have abandoned traditional occupations and all classes are found working together in an industrial process,…..(Census of India 1931, Page 266).

The Census Commissioner further reported:

Secondly, dissatisfaction with the traditional calling has thrown on the market thousands of men and forced them to take to occupations for which they have had no ancestral bent. Thus the Patidar had become a coolly or unloading of cargo in ports and harbors, while the Brahman has taken to tanning. The Vania has become a motor mechanic, while even the Bhangi has contributed his humble quota to the teaching profession. This tendency has become a potent influence for disintegrating caste restrictions. ( Census of India, 1931,Page 412).

After independence, with the adoption of a federal parliamentary democracy based on adult franchise, rapid industrialization, and urbanization occupational mobility across caste boundaries gained further momentum.

Thus, relying on a century old data was a clear violation of the Mandate of the Article 340

E. Examine Desirability or otherwise for reservations.

The Terms of Reference further required the Commission "to examine the desirability or otherwise of making provision for the reservation of appointments or tests...in public services". This most vital part of the Terms of Reference was wholly ignored by the Commission. Before making its recommendations the Commission was bound, by the Terms of Reference, to determine the desirability or otherwise of such reservations. The Commission did not at all investigate this essential part of the Terms of Reference.

F. Backward classes of citizens which are not adequately represented in public services.

To collect information about the representation of OBCs in Government services, the Commission had sent two sets of questionnaires, one to all the State Governments and Union Territories (Appendix II, Volume II, Page 68 ) and the other to the Central Government Ministries and Departments (Appendix III, Volume II, Page 73 ). Let us see how much information the Commission could collect:

1. STATES AND UNION TERRITORIES

In Chapter IX (Volume I, Pages 37-42),the Commission describes evidence provided by Central and State Governments. The Commission notes:

9.8 It was rather disappointing to sea that hardly any State was able to give the desired information. Of course, the States which had not notified any lists of OBCs were physically not in a position to supply the above particulars. But despite the fact that 16 States and 2 Union Territories had notified such lists and several of them had implemented fairly comprehensive programmes for the welfare of OBCs, only one or two of them furnished the necessary details. Further, States did not choose to respond even to some simple and straight forward questions on important policy issues. Repeated reminders and contacts at personal level did not materially alter the situation.
9.9 ……..The remaining 13 States and Union Territories, i.e., Andaman and Nicobar Islands; Arunachal Pradesh; Chandigarh; Dadra & Nagar Haveli; Goa, Daman, and Diu; lakshadweep; Madya Pradesh; Manipur; Mizoram; Nagaland; Sikkim; Tripura; and West Bengal have so far neither identified identified Other Backward Classes nor taken any steps for their upliftment.
9.14 The information is too sketchy too sketchy and scrappy for any meaningful inference which may be valid for the country as a whole.
Clearly, the Commission has NO information about the representation of OBCs in State Services.

2. Central Government Ministries and Departments

The findings of the commission were primarily based on the response to the questionnaire (Appendix III to the Report ) sent by the commission to all the Central Ministries and departments and the Public Sector Undertakings. In the covering later of this questionnaire, the Commission writes:

2. …………In fact , the first term of reference of Backward Class Commission pertains to the defining of criteria for determining Backward Classes. As the desired criteria could be evolved only after extensive field surveys and examination of data called from various agencies, the Commission itself is also not in a position to indicate specific and well considered criteria for defining Backward Classes.

3. …….the Commission has decided to lay down the following rough and ready criteria on purely adhoc basis.

4. ……. The following test may be applied to determine socially and educationally backward classes:
(a) In respect of the employees belonging to the Hindu communities

(i) an employee will be deemed to be socially backward if he does not belong to any of the three twice-born (dvija) vernas i.e he is neither a Brahmin nor a khatriya/ nor a vashya; and
(ii) he will be deemed to be educationally backward if neither his father nor his grandfather has studied beyond the primary level.

(b) Regarding the Non-Hindu communities

(i) an employee will be deemed to be socially backward if either

1. he is a convert from those Hindu communities which have been defined as socially backward as per para 4 (a)(i) above, or
2. in case he is not such a convert, his parental income is below the prevalent poverty line, i.e. Rs. 71/- per head per month

(ii) he will be deemed to be educationally backward if neither his father nor his grandfather has studied beyond the primary level.

5. It may please be noted that an employee will qualify for membership of Other Backward Classes only if, both socially and educationally, he is found to be backward according to the above criteria.

Supposedly, on the basis of responses received, the Commission summarized the findings in Appendix VIII ( Volume II, Pages 93-95), and the following table gives a summary of the over-all employment position in this behalf (Chapter IX, Page 42, para 9.48):

Category of Employees Percentage of SC/ST Percentage of OBCs

Category of Employees Percentage of SC/ST Percentage of OBCs
Class I 5.68 4.69
Class II 18.18 10.63
Class III & IV 24.40 24.40

Now let us examine the reality of this:

  1. The above said survey was conducted before determining the backward classes. Ideally, one should have made the list of Backward classes first, and subsequently, one should have determined their representation in services.
  2. If the Commission has used a particular set of criteria to define backwardness for the purpose of representation in services, the Commission should have followed the same criteria for Identification of OBCs.
  3. It seems that the Commission was in too much hurry to impose its criteria on the Central Government. In the Preface of the report, the Commission describes the chronology of events:
    - Inauguration of Commission on March 21, 1979.
    - The Commission became fully operational in middle of 1979.
    - The socio-educational field survey commenced in February 1980.
    - Meeting of Research planning team during 12th to 14th June 1979.
    The above mentioned questionnaire was sent on 25th April, 1979, before the Commission became operational , and even before the meeting of research planning team.
  4. On the basis of these criteria, the report stated that whereas in Class I category of Central Government jobs the share of SCs/STs was 5.68%, it was only 4.69% in the case of OBCs. The implication was that the OBCs were more disadvantaged than the SCs/STs. This was dubious; for the calculation it did not include OBC employees whose fathers and grandfathers had read beyond the primary levels. On the other hand it included all SC/ST employees without these educational caveats. The outcome was comparison of incomparables.
  5. As "no lists of OBCs was maintained by the Central Government, nor their particulars were separately compiled in Government offices" (para 9.47, Volume I, page 41, Mandal Commission report), it raise a serious doubt if the Commission really received any information about OBC representation. Prof B K Roy Burman (Head, Technical Committee, Mandal Commission) quotes former Union Home Secretary, Shri L P Singh questioning the authenticity of data itself:
    "The practice of recording the caste in service had been discontinued by 1951. Hence, the criteria laid down required not only an enquiry into the caste of an employee, in order to eliminate any of the 'twice born' castes, but also an enquiry into the level of education attained by his father and grandfather. And in the case of a non-Hindu employee an enquiry had to be made to find out if he could be deemed to be socially backward because of the source of his ( or his ancestor's ) conversion, or the income of his parents. There is no indication the Commission's report, if all these enquiries were in fact made"( Beyond Mandal and After, Mittal Pulications, New Delhi, 1992. Page 36). `
  6. By adding the condition (ii) in both the classes, the actual representation of the "Backward Classes" is significantly reduced which is being used at present to highlight the low level of representation of these communities in public employment so as to justify reservation to these communities. If that is the criteria for evaluating the current employment, then the same criteria should be adopted while giving reservation. i.e. The benefit of reservation should be available to only those who not only belong to the community but "…… his father nor his grandfather has studied beyond the primary level …"
  7. If a combined test of caste and parental education is used to enumerate the OBC employees, the count will decrease as the time passes. As the literacy levels are increasing with time, there will be fewer and fewer number o OBC employees whose parents are below primary level of education.
  8. The whole exercise (supposing it was carried out) does not enumerate OBCs. It only enumerate the employees :
    " Who considered themselves 'Shoodra", and
    " Whose father and grand-fathers have not studied up to primary level.
    It is to be mentioned that most of the castes included in OBCs consider themselves as either Kshatriya or Brahmin (See Appendix I). Hence, if asked individually, only few individuals will agree to be of Shoodra castes.
    Furthermore, if father or grandfather of an employee had studied up to primary level, according to 'rough and ready criteria of the Commission, he/she was excluded from the list of OBCs.
  9. The Commission has used the economic criterion only in respect to the "Non-Hindu" community. Discrimination on the basis of religion is against the basic spirit of the constitution. It is also submitted that the income level taken by the commission was, purposefully, too low and only a very few persons could be covered under the same.
  10. The Commission has treated all 3743 castes as single class. There is no analysis of caste-wise representation. The Commission was required to ascertain "…such backward classes of citizens which are not adequately represented in public services…". Thus, as per mandate, the Commission was required to find out the representation of each backward caste individually so as to justify conferment of benefits to a particular caste. If a caste is adequately represented then there is no justification for carrying on with reservation for that caste. There is no material on the record to show that 3743 castes identified by Mandal are not adequately represented in the State services.

G. Present to the President a report setting out the facts as found by them

One of the most important Terms of Reference of Mandal Commission and component Article 340 was that the Commission should present the FACTS as found by the Commission. Mandal did not present any fact at all. Apart from the single above mentioned table, the Commission has not provided any data. There is no information about the socio-economic- educational status of any caste. Mandal has not provided any data obtained from much publicized socio-educational survey. The report says that all the data obtained from the survey was computerized and was compressed in 31 tables. Appendix XXI Volume II, Page 129 ) gives a list of these tables , but characteristic of Mandal, NO FACTS ARE PROVIDED.

H. In this connection the commission may also examine the recommendation of the Backward classes commission appointed earlier and the considerations which stood in the way of the acceptance of its recommendations by Government.

It must be noted that the recommendations of the First Backward Classes commission were not accepted primarily for the reason that 'caste' was used as a basis for classification. In the Memorandum of Action Taken on the Report of the First Backward Class Commission at the time of tabling it before the Parliament, it was pointed out that the caste system is the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. If caste is used as a basis for classification, it would not only bolster the separatist feelings but would also be a hindrance in overall goal of a "egalitarian society". Shri Govind Ballabh Pant, the then Home Minister stated:-
"………the emphasis on caste has further been highlighted by some of the minutes of dissent. The tone and temper displayed therein bring into prominence the dangers and of separatism inherent in this kind of approach. It cannot be denied that the caste system is the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of specified castes as backward may serve to maintain and even perpetuate the existing distinctions of caste. There may be, besides castes, a large number of whose members may be classified as backward educationally and economically, but still there may be others among them who cannot be so classified. Similarly, among the so called upper and advanced classes there may be, and in fact there are, large number of those who are not less backward educationally and economically and even among the backward classes some castes are more backward than the others………"
Apart from the rejection of the crucial test of caste as a basis for classification it was further noted that the tests recommended by the commission would result in the entire community barring a few exceptions to be regarded as backward. The reality in such situation, recognized by the government, would result in the needy swamped by the multitude and would hardly receive any special attention or adequate assistance which is the very basis of providing affirmative action.

Thus the report of First Backward Class Classification was primarily rejected for two reasons:

1. Caste was used as a test of identification for backwardness.
2. A large proportion of population was declared backward (2399 castes), and about 32% of population.

Therefore, the Mandal commission was required to unearth some positive and workable criterion (other than caste - since the same had already been rejected) so as to allow percolation of the benefit to the really needy small group of people. Now let us have a look at what Mandal did:

1. Only Caste was used as a test of identification for backwardness.
2. Even a larger proportion of population was declared backward (3743 castes), and about 52% of population

IN SUMMARY, THE MANDAL COMMISSION HAS RUTHLESSLY VIOLATED ITS TERMS OF REFERENCE AND ARTICLE 340.

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