The interim decision of the Patna High Court to stay the Bihar caste survey is based on an erroneous understanding of the law, says Prof G Mohan Gopal, former vice-chancellor of the National Law School, Bengaluru, and former director of the National Judicial Academy.
Prof Gopal, who challenged the EWS quota amendment in the Supreme Court, tells Preetha Nair that it would be difficult for the Congress party to be part of any social justice coalition in a serious and enduring manner. Excerpts:
Q) How do you see the coming together of social justice parties and Congress on the new social justice agenda ahead of the 2024 polls? In Karnataka also, caste census was a dominant election plank. Will the new slogan ‘Jitni abaadi, utna haq’ change the political landscape of the country. like in the 90s?
It is going to be difficult for Congress to be part of any social justice coalition in a serious and enduring manner. This is because Congress’s social coalition consists of SEFCs (socially and educationally forward classes), SC/ST, and minorities. This coalition leaves out and opposes SEBCs, especially Hindu SEBCs (socially and educationally backward classes). As a result, SEBCs have virtually no voice inside the Congress. On the other hand, pro-social justice regional parties are based on a social coalition of SEBCs, minorities, and SC/ST. They oppose Chaturvarnya forces. The question is: will Congress be able to change its social coalition and align with the social coalition of the social justice parties?
Q) Though state governments need caste data to implement reservation in jobs, education, local bodies, etc, they face legal hurdles. The Bihar government’s ongoing caste survey was stayed by Patna HC. Will it be a setback for other states? Can states undertake a caste census?
The interim decision of the court to stay the Bihar caste census is based on an erroneous understanding of the law. The difference between a census and a survey is that in the former a full head count is carried out whereas in the latter only a sample is enumerated. The Constitution fully empowers state governments to collect statistics within their state as needed, based on a full headcount, and does not compel State Governments to limit themselves to data based on samples.
Q) There is a growing clamour for a nationwide caste-based census from Opposition parties. Why is a caste-based enumeration imperative to design policies and programmes?
Castes have always been enumerated in the census, in colonial times and after independence. After independence, caste enumeration was limited by the Government of India to Scheduled Castes. Our census has always organized our population into various groups for enumeration.
For example, the 2011 census gathered data on some 15 broad groups — based respectively on religion, caste (limited to SC category), membership of ST category, sex, age, marital status, disability, language, literacy and education, occupation, class of work, nature of industry, trade or service, place of birth and residence, migration characteristics and fertility. The real question is: on what basis are SEBCs and SEFCs alone excluded from the census after 1947, while SC and religious groups are included in the census.
The inclusion of all groups in the census is required by at least three clear constitutional mandates. Article 38(2) emphatically mandates inter-group equality and provides that “The state shall, in particular, strive to minimise the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only among individuals but also among people residing in different areas or engaged in different vocations.”
The purpose of Article 38(2) is to rid India of rule by any oligarchy — in which a handful of ruling growups are asymmetrically and unequally powerful compared to other groups. India is currently an oligarchy in which four castes control the power of the Union and of the nation. If this oligarchy has to be dismantled and we have to move to a symmetrical and equal distribution of power amongst groups, a census mapping the asymmetry of power should be seen as a Constitutional mandate.
To ensure representative democracy, a basic feature of Constitution, Article 16(4) of Constitution vests a fundamental right in every class of citizen to be “adequately represented in the services under the State.”
The fundamental right of each class of adequate representation in services under the state cannot be enforced without a census that accurately establishes the population of each class of citizens. The discriminatory exclusion of a particular section of citizens (SEBCs and SEFCs) from enumeration makes it impossible for these excluded groups to know whether their right to adequate representation is being enforced.
For some years now, the judiciary has been demanding data on representation as a pre-condition for SEBC reservation. However, such data is not available for SEBCs because of their exclusion from the census. In effect, this defeats the right to adequate representation.
Q) The Centre has told Parliament and SC that it won’t conduct a cast e census as a matter of policy. Why do you think govt is hesitant to count castes?
SEBCs and SEFCs are not being included in caste census since independence to conceal hugely skewed distribution of power and resources between these two groups. The exclusion from the census is also intended to hide the small size of the SEFC population and the massive numbers of SEBCs.
Q) There is an argument that the expansion of the OBC reservation is a new form of majoritarian politics, often done at the behest of dominant caste groups. And that the mobilization of Opposition parties on the new social justice agenda represents a narrow politics pitting caste majoritarianism against Hindutva..
On the contrary, the inclusion of SEBCs and SEFCs in the census will present a more accurate breakdown of the diversity and divergent needs of the SEBCs and therefore block the emergence of false majoritarianism as is currently sought. It will help channel development and growth better to deprived sections amongst SEBCs.
Q) There are apprehensions that a caste census will see a repeat of the unrest during the Mandal Commission report. It could be the reason for the government not to release the data of the SECC 2011, according to some…Your view.
Mandal helped advance social justice and equity in India. The unrest pursuant to Mandal was unleashed by the SEFC to block reservations. The inclusion of SEBCs and SEFCs in the census will help distribute power and resources more equitably amongst groups as mandated by Article 38(2) of the Constitution and will therefore reduce the basis of future unrest. Meanwhile, it is up to the SEFC communities to maintain peace and respect the Constitutional mandate.
Q) Recent data shows that nearly 20,000 OBC, SC, and ST students have dropped out of IITs, IIMs, and Central Universities in the past five years. Dalit students face exclusion and alienation in higher educational institutions. Inadequate/ nil representation is the story across the board. Is this the result of treating reservation as a poverty-alleviation strategy rather than a political tool as intended by the Constitution?
Reservation is only a tool. The goal is a representative democracy. Dr. B.R. Ambedkar has made this very clear from about a century ago. However, we have focused only on the tool and not adequately on the goal. The result is that India is today ruled by oligarchies.
We must now shift our attention from the tool (reservation) to achieving the main goal: representative government and representative democracy.