The latest constitutional amendment restoring the power of the states to identify Socially and Economically Backward Castes (SEBCs) and Other Backward Castes (OBCs) continues to create a lot of buzz across the nation much beyond the simple clarifications inserted through the amendment.
The ceiling limit issue: However, the amendment is silent on breaching the cap of 50% on reservations as was laid down in the landmark case of Indra Sawhney and others vs Union of India and others in 1992. The amendment was necessitated after the judgment of the Supreme Court in the Maratha reservation case on Maharashtra SEBCs Reservation Act, 2018 (May 2021). However, even in this judgment, the Supreme Court re-emphasised the need for scientifically collected quantifiable data to consider revisiting the ceiling issue. The court, referring to the judgments in M Nagaraj v. UoI (2006) and Ashoka Kumar Thakur v. UoI (2008), interpreted the ratio of these cases to imply, “If a state wants to exceed 50% reservation, then it is required to base its decision on quantifiable data.” Earlier, in the M Nagaraj case, the court had laid down that the “... the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335”. Therefore, if we want to get the ceiling limit increased beyond 50% through a judicial order, it can be done only through a scientifically designed survey; every other argument has no evidentiary value in the eyes of the courts.
Lacunae in the Indra Sawhney judgment: Many have argued that the judgment of the Supreme Court in the Indra Sawhney case is inherently contradictory. The court held that Article 16(1) and Article 16(4) of the Constitution were facets of the same principle guaranteeing ‘substantive equality’, which includes existing structural and institutional disadvantages. However, the court also affirmed the rule that there must be a 50% cap on reservation subject to ‘extraordinary circumstances’. In the judgment, there is no clear rationale as to how the court arrived at the quantification of 50%, aside from the iteration that it was a “reasonable and fair” figure considering the aim of adequate representation and not proportional representation based on caste. The court also did not lay out the rationale behind the primacy of the doctrine of adequacy over the doctrine of proportionality.
Policy rationale behind caste-based enumeration in Census: No legislation can bring actual substantive benefits to the OBCs and the SEBCs unless we ascertain ‘who’ (identify) these benefits will accrue to and ‘how many’ (total number) of them will need to be covered under its ambit. The latest amendment answers the ‘who’ part of the question as the states will identify the castes to be treated as OBC/SEBC. However, it is silent on the ‘how many’ question. This ambiguity can be removed only if there is data that reflects the percentage of people that need this reservation as was also noted by the courts. It is only then that one can assess if the 50% ceiling is required to be breached in order to formulate a rational reservation policy based on the doctrine of adequacy, if not proportionality. India last witnessed a comprehensive caste census last in 1931. Focusing on the need for such a census purely from a public policy imperative, the Cabinet of Odisha passed a resolution on 11 January 2020 for the conduct of a socio-economic caste enumeration simultaneously with the General Census 2021 by adding extra columns to the existing format. The state also approached the Centre with this demand, which it refused. However, Odisha’s Naveen Patnaik became the first CM in the country to go ahead with such an enumeration from 1 May 2021, committed in his resolve to not only use such data for possibly breaching the 50% ceiling in reservations by substantially complying with the judicial order, but also ensuring that the benefits from government schemes actually reach the intended beneficiaries from the OBC and SEBC categories in a more targeted and focused manner. The current reliance on the SEBC survey of 2011 used for estimating the number of beneficiaries under various schemes of the government relating to food security, housing, health, etc., often compels states to demand additional quota requirements from the Centre since the 2011 data is old and leaves out many eligible beneficiaries. The latter leads to a lot of avoidable politicking based on which party is in power at the Centre vis-a-vis the demanding state.
Conclusion: The jurisprudence of reservation is in the nature of affirmative action. First, it aims to abolish the past inhuman discrimination and second, it aims to mitigate suffering and mend the generational damage to these communities. The extent to which reservations will be excessive so as to render them adverse must depend on the adequacy of representation in a particular case. This could be different in different states. Hence, fixing an upper limit of 50% for all states across the country is untenable. It is equally untenable to demand relaxation of this limit without collection of scientific, ground-level quantifiable data. Therefore, the government must heed Odisha’s demand and incorporate a separate column for enumeration of OBCs and SEBCs in the forthcoming Census.
Amar Patnaik
BJD Rajya Sabha MP, ex-CAG bureaucrat with a PhD in management and now an advocate
(amar_patnaik @yahoo.com)