New OBC Commission: How noble are the intentions?

The OBC issue has now come full circle. The RSS wants to get entirely rid of reservations, and a changed institutional framework like that of the NCESBC may be a step in this direction, more so if they can dig out a pig-headed OBC to head it and take the dictates of the RSS, as do Kalyan Singh and Shiv Raj Singh Chauhan

The National Democratic Alliance (NDA) government under Narendra Modi introduced a Constitutional Amendment Bill during the Budget Session of Parliament earlier this year to establish, instead of the NCBC, a National Commission for Educationally and Socially Backward Classes (NCESBC). The Lok Sabha passed the Bill but the Rajya Sabha, facing resistance from the opposition parties, referred it to a select committee. Given the mood of the Opposition, the Bill would most certainly undergo changes through the deliberations of the select committee. Therefore, any comments on the version approved by the Union Cabinet and passed by the Lok Sabha would be premature and may not be eventually appropriate.

Mohan Bhagwat, the RSS chief, has called for a review of reservations

However, it is appropriate to reflect on the possible political intent of the move. It is also appropriate, and indeed necessary, to compare the arrangements that the new Bill purports to make through the establishment of the NCESBC with the impact it can possibly make in addressing the suffering of OBCs.

I examine these matters in the following order:

  1. Does the creation of an NCESBC address the pending and festering issues of OBCs? Or, is it merely a response to threats faced by the ruling BJP-led NDA government in important states?
  2. What would be the result of the switch from ‘inclusion/exclusion’ model, mandated by the Indra Sawhney judgment of 1992, to the new model in the current NCESBC Bill?
  3. What has been the experience with (i) the existing hybrid “grievance redressal” and “inclusion/exclusion” model of National Scheduled Castes Commission since it was established, and (ii) the Uttar Pradesh Backward Classes Commission since its inception in 1993? What are the known inadequacies of both in addressing the welfare, emancipation and empowerment of OBCs and SCs?
  4. How have the ruling political parties, including the BJP, treated OBCs in general?

Pending and current OBC issues

OBCs currently face six major issues:

One, the Special Constitution Bench of the Supreme Court gave specific direction in the 1992 Indra Sawhney judgment that the members of any such commissions should be experts. Therefore, only acknowledged experts, drawn from social sciences, the administration, the judiciary and politics, should have been made their full-time members.

Jat protests for reservation have turned violent

Further, the Supreme Court’s 1992 direction explicitly orders that adequate research and other support staff, which enables these bodies to perform their tasks efficiently, should be made available (Para 847: Indra Sawhney). In addition, any such Commission needs sufficient funding, which is like oxygen without which any Commission can only be a carcass.

So far, we have had the Central body, and we have had the State Commissions for Backward Classes (SCBCs) in different states. These are not exactly of the same type. Some among them have been established through an act of their legislatures: certain others have been created through an executive order. They also differ in terms of their tenure, powers, funding, facilitation and functions. In fact, some among them exist only on paper!

Funds for efficient conduct of their functions (including confidential work) should have been given and permanently budgeted for, and their availability should have not been at the mercy of the department administratively controlling these institutions.

The Commissions should have displayed full transparency in handling petitions, which they have not been doing since 1994. For example, copies of their recommendations and the notification(s) of the government have not been made available to the petitioners and put on their websites.

The members of the commissions have not toured interior areas to meet voiceless OBC people.

Central and state governments have been taking an inordinately long time to process inclusion recommendations and then notify inclusions.

Governments are also not necessarily following advisories/decisions handed down in response to complaints of denial of benefits under Articles 15(4) and 16(4), which was made ordinarily mandatory by the Indra Sawhney directive. In some cases, state governments have bypassed these commissions and, without their mandatory recommendations, included castes in the lists of the OBCs.

Hardik Patel has been leading the Patidar agitation

Two, the Indra Sawhney verdict had recommended revision of the Central and state OBC lists every ten years. Therefore, a revision was due in 2002, and indeed the central government had asked the NCBC and SCBCs to carry out this task. However, the Commissions pleaded inadequate expertise or resources to undertake this onerous task, and have refused to undertake that task. Even to date, OBC lists have only changed to the extent that some additions have been made in them due the deliberations of the SCBCs. However, none of the SCBCs have recommended any deletions from the existing lists. Several anomalies plague these lists. Some communities like the nomadic and the denotified tribes, continue to be out of the lists of marginalized communities (SCs, STs, OBCs) in many states. Some of these certainly qualify for inclusion among the OBCs.

On the other hand, dominant communities (which actually control society, economics and politics of major states), continue to remain listed among the OBCs. More than 70 per cent of the population of southern states figures in their OBC lists. In any exercise of this nature, the tests indicated by the Supreme Court under its doctrine of specification (ie database, consideration of available alternatives, application of mind, etc) should have been strictly followed. The doctrine of specification says correction of such anomalies requires a community/caste-based census. However, the last of such a census, and the consequent lack of precision in the OBC lists has prevented percolation of benefits particularly to the weakest and most needy communities, generally referred to as the most backward communities (MBCs). This would certainly require a sub-division of the lists and proportional apportioning of the benefits. To enable that to happen, the NCBC made such a recommendation in May 2011. More or less endorsing this step, in November 2011, a sub-group of the Planning Commission recommended division of castes in the umbrella OBC list as “backward” and “most backward”. The landmark initiative, with implications for OBC mobilization and apportioning reservation benefits, however, did not gather needed momentum thereafter as the governments both at the Centre as well as the states were quite lukewarm to this step as a policy objective. Quite possibly, this move may have invited stiff resistance from dominant OBC sections since it would have tended to shrink their share of the 27 per cent quota pie to a fraction proportionate to their strength in the total OBC population. The sub-division of the OBCs into “backward” and “most backward” is already in force in some states, but not in others. At the Centre, successive regimes have avoided following suit for fear of backlash from the dominant groups.

Another dimension was added to the OBC sub-division issue after the recommendations of the Ranganath Misra Commission. Given the onslaught on the United Progressive Alliance (UPA)-II government on the issue of corruption in 2010 and 2011, Prime Minister Manmohan Singh was keen to move fast on the Congress’ poll promise of reservation to socially and economically backward minorities, especially Muslims, to bring them back to the Congress fold electorally. The Ministry of Minority Affairs proposed in November 2011 creation of a 8.4 per cent sub-quota for minorities – of which 6 per cent should be for Muslims – within the 27 per cent OBC quota. Eventually, however, only a 4.5 per cent sub-quota for the Muslims was sanctioned by the Union Cabinet in its meeting on 22 December 2011. This move was particularly targeted at Uttar Pradesh Assembly Election 2012. The UPA-II tried the same gambit again during the May 2014 parliamentary elections. These moves set the cat among the pigeons for parties like the Samajwadi Party (SP) as the move tended to pit two crucial vote banks – Muslims and OBC Yadavs – against each other. Since the OBCs in UP were still not seen as the Congress’ base, expecting them to give up a slice of the reservations for minorities might not have hurt the party. The concept of creamy layer, applicable for OBC reservations, enabled the government to hope that a sizeable section of the Muslims, who were and are socially and economically backward, would benefit from the move. Creating a 4.5 per cent quota for minorities within the OBC quota would also benefit Christian and Sikh Backwards and other non-Hindu castes among OBCs. In terms of empirical ground reality of the Muslims, it is indeed a fact that majority of the Muslims are socially and economically backward. Nine states have already introduced a sub-quota for the Muslims under the OBC quota. However, reservation criteria are dissimilar in those nine states: some among them, like Kerala, treat the entire lot of Muslims as backward while certain others have kept this sub-quota for only identified backward communities from the Muslims fold. The inclusion of Muslim communities among the OBCs is a touchy political issue and is under legal challenge in Telangana and Andhra Pradesh and Maharashtra. In fact, OBC lists require weeding out undeserving inclusions in quite a few states. Then there are cases like the entry of Tea Garden Labour in Assam, and the Gujjars in Rajasthan. In the former, those who were STs in their native states (Odisha and Jharkhand), were, on immigration for work in tea gardens in Assam, listed as OBCs. This moved has led to violence and bloodshed at least on three occasions. Both the Congress and the Asom Gana Parishad (AGP) governments were responsible for this turmoil. The NDA-II government of Narendra Modi corrected this anomaly earlier this year. In the case of the Gujjars of Rajasthan, it is a fact that in some areas they are a pastoral community. After three violent struggles, the Gujjars have yet to get what is their due. On the other hand, the Meenas, have, during the 68 years after Independence, lost some characteristics that facilitated their dubious inclusion as a tribe in Rajasthan. But they have remained in the list because of their numerical political clout. Meanwhile, the Marathas of Maharashtra, the Jats of Haryana, and the Patidars of Gujarat, controlling the polity, economy and society of these states, had the governments list them as OBCs, but then came up against adverse judicial rulings on the question.

The OBC leaders: H.D. Deve Gowda, Mulayam Singh Yadav, Nitish Kumar, Sharad Yadav, Lalu Prasad Yadav

The correction of the OBC list was supposedly dependent on the outcome of the Caste Census. The UPA-II kept on reneging on its commitment given to the Parliament to carry out a caste census along with the 2011 Census. Later, under a great deal of pressure, it agreed to bunch it with the BPL survey that was to be carried out by the Ministry of Rural Development. Sharad Yadav, a prominent JD (U) Rajya Sabha MP, in a piece in The Indian Express (12 July 2011), denounced this dishonouring of a commitment to Parliament. He also indicated the methodical inadequacies of OBC enumeration via the BPL survey. The BPL survey, he argued, would not cover the entire population; it would not gather data on the socio-economic conditions of various castes and their educational status; and it would be of no help in evaluating the impact of reservations on various castes. The UPA-II eventually did carry out the survey but without any enthusiasm. The exercise that started in 2011 was eventually completed only in July 2015. The NDA-II government headed by Prime Minister Narendra Modi has now used another stonewalling tactic by not releasing the Socio-Economic Census data.

Three, social scientists like Satish Deshpande and Abu Saleh Shariff have shown through their macro-analyses the wide differentials in the status of the backward communities and the upper castes in Indian society. Whereas these show the vertical fault lines in Indian society, horizontal differences within these categories and sub-categories remain to be analysed. Rapid socio-economic changes have been taking place in different parts of the country. These changes have certainly altered the existing socio-economic-cultural reality of even the traditionally upper-caste/class communities. Therefore, a periodic assessment of relative socio-economic-cultural status of all the communities is a very plausible option to take policy decisions on inclusive and affirmative policies of development. The establishment of an Equal Opportunities Commission that could look into these issues was in the air when the UPA was in power. In fact, a committee led by Amitabh Kundu had even devised a Diversity Index to facilitate this exercise. The National Sample Survey Office (NSSO) has been undertaking exercises in which categories like SC, ST, and OBC have figured and, interestingly enough, have highlighted the inadequacy of the development effort undertaken by the government so far.

In addition, the public as well as Central and state governments need to know to what extent the various programmes launched by governments have emancipated and empowered the backward communities (SC, ST, OBC, nomadic, de-notified and semi-nomadic). This type of assessment, both vertical and horizontal, is needed not only among the Backwards but also among the remaining upper-caste communities, to indicate relative progress of development effort in the post-Independence period. This is also required to show the relative positions of the backward and forward communities. While the erstwhile Planning Commission did not find enough funds for ameliorative measures of OBCs, certain ministries at the Centre (for example, Human Resources Development, and Railways) as well as the governments of UP, Rajasthan and Bihar, are now allocating relatively large funds to the “economically poor” among the upper castes. Such actions were termed unconstitutional by the Supreme Court in the Indra Sawhney case in 1992. Despite such a rebuke from the highest court, a Commission for the Economically Backward Classes continues to exist at the Centre and some states have given them various types of benefits, including reservations in educational institutions and jobs. No one from the academic world, who had routinely cried themselves hoarse on Mandal Commission methodology, questioned the existence of this commission since it was meant to benefit the upper castes.

Four, reservations under Articles 15(4) and 16 (4) materialized for the OBCs after a great deal of struggle and prolonged legal battles but the upper castes entrenched in the power structures have seen to it that these reservations are not implemented properly. They have also ensured that no proper data is maintained for this purpose. Therefore, it is almost impossible to get the correct figures of such reservations either at the central or state levels. Even the Mandal Commission received an incomplete data set regarding Article 16(4) (representation in services under the State) when it was collecting information for its report. Subsequently, the Annual Reports of the Ministry of Social Justice and Empowerment have never had these figures. The state governments have also been emulating the Centre in this respect. E. Muralidharan, an RTI activist from Chennai, sought information on the status of OBC employees in central government institutions. After a great deal of delay, he was given incomplete information in September 2010. Six of the ministries and other institutions in the central government did not furnish the sought details. The information provided was also not up to date.

Five, very few people have had a relatively non-partisan and dispassionate look at the recommendations of the Mandal Commission (other than the recommendations regarding reservations) or for that matter the recommendations of the Tenth Five-Year Plan Working Group on the OBCs (of which incidentally I too was a member) for helping the diverse OBC communities to acquire skills and stand on their own feet. The fund allocations for the thoroughly inefficient central and state Backward Classes Finance and Development Corporations have been quite meagre given the large numbers of OBCs they are meant to serve.

Six, the OBC political outfits such as the DMK (Dravida Munnetra Kazhagam) in Tamil Nadu, the SP in UP, and the RJD (Rashtriya Janata Dal) in Bihar, have now become family firms of their so-called “supremos”. Their rhetoric of OBC empowerment without delivery of the tangibles on the ground to each and every segment of the OBCs is on its last journey, so these OBC outfits are looking for new ways to retain their hard-fought political primacy in their respective political turfs. The next round of reservation politics, as argued by Satish Deshpande and Yogendra Yadav, would thus be between those who have benefited from the reservations so far and those who have not. There will be identity politics but it will manifest itself in the tussle between Yadavs and non-Yadavs, between the economically backward classes (EBCs) and the OBCs, between Dalits and the MBCs, and between Jats and non-Jats. For a while, the Bihar political model of Nitish Kumar, which had involved, among other things, rebuilding of the state’s structures of law and order and governance, inclusion of backward Muslims (Pasmanda) and cobbling together of a bottom-up rainbow coalition of non-Yadav MBCs and non-Paswan SCs appeared to be an appropriate model for emulation by other OBC leaders. However, that model is in a shambles now. Other OBC leaders like Shivraj Singh Chauhan of Madhya Pradesh and Ashok Gehlot of Rajasthan did demonstrate their skills in politically handling the fusing of OBC interests with those of the upper castes. What they have not done successfully is to address the pressing issues of empowerment of the OBCs.

What would be the result of the switch from ‘inclusion/exclusion’ model, mandated by the Indra Sawhney judgment of 1992, to the new model in the current NCESBC Bill?

The model of the Backward Classes Commissions recommended through the directive in the Indra Sawhney judgment was entirely devoted to discharging the task of recommending, listing and scheduling of different communities and groups as OBCs by inclusion and exclusion. In contrast, the one introduced by the Modi government is what I call a hybrid combination of grievances – hearing and inclusion/exclusion functions similar to the functions given to the National Commission for Scheduled Castes under Article 338 in 1990 and the National Commission for Scheduled Tribe under Article 338A. The press note issued by the Modi Government on the NCESBC concealed much more that what it revealed. I agree with some of the interpretative inferences drawn on the move by the noted Senior Counsel of the Supreme Court, Indira Jaisingh (with whom I had the privilege of working with in the Indra Sawhney case in the 1990s): that it is a permanent Commission; and that it may also recommend inclusion of deprived groups based on factors other than their castes. Moreover, it is my definite view that the Modi government is addressing the political crisis caused primarily by what my friend Satish Deshpande calls “expression of repressed impotent rage against an economic system that has stoked expectations but done little to enable fulfilment” by castes like the Jats (in Haryana), the Patidars (in Gujarat), and the Marathas (in Maharashtra). As Deshpande argues, “perhaps these state-centric agitations point to a deeper global crisis in political language that disables us by treating the economy as though it is a force of nature rather than a human creation”. Facing state assembly elections in Gujarat, Karnataka, Chhattisgarh and Odisha, a united opposition would add this emotive issue of the Modi government’s failure to deliver on its promises in contrast to its rhetoric of development during the three years that it has been in power.

What has been the experience of (i) National Commission for Scheduled Castes and National Commission for Scheduled Tribes, since they were established under Article 388 and Article 388A, respectively, and (ii) the existing hybrid ‘grievance redressal’ and ‘inclusion/exclusion’ model of the Uttar Pradesh Backward Classes Commission since its inception in 1993?

Unlike the claim of the Modi government’s press release on NCESBC, these SC and ST Commissions at Centre (and in some regional offices in the case of the ST Commission) have in reality generally been quasi-judicial bodies, merely making a noise over the grievances of the groups concerned, and have never been consulted, nor expressed a view or recommended initiatives regarding ameliorative or empowering measures for SCs/STs etc. These Commissions had no judicial powers to dispense justice, and their exercise of quasi-judicial powers has always been restricted to issuing notices to the parties concerned about reported incidents; union and state governments have seldom acted upon their reports/recommendations. In my view, the system of a Commissioner for Scheduled Castes and Scheduled Tribes that existed in the pre-1990 era – L.M. Shrikant being the longest-serving commissioner – had done a better job than his successors like P.L. Punia.

Retired High Court Judge P.C. Verma, then standing counsel of the UP Government at the Lucknow Bench of the Allahabad High Court, and I had used the language of provisions of Article 338 in framing the legislation of Uttar Pradesh SCBC in 1993. The experience in UP with the SCBC was very good for the first term (1993-1996), when the commission had just 4 or 5 members. We were so caught up in listing and delisting and handling issues connected with the issuance of OBC certificates that the hearing of grievances took a back seat but we still managed to make some incisive submissions to the state government. However, the UP SCBC became a laughing stock during the Mayawati regime (2007-2012) and the Akhilesh Yadav government (2012-2017) when the size of the commission was increased to 17 members by the former and to 27 members by the latter. Mayawati used the members of the UP SCBC to oversee party work in other states of the Indian Union: in any case, its members were not competent to handle even listing/delisting issues. During Mayawati’s tenure, it was alleged that commission members even took money to recommend inclusion of certain undeserving castes that weren’t accepted even by Mayawati’s government! It is true that, using their powers, the Commissions started handling cases that generally should have come under the purview of executive magistrates in the districts were those magistrates not inactive. But the district and higher-level bureaucracy never took Commission hearings or judgements seriously.

The Maharashtra government has sought the the state backward classes commission’s view on granting reservations to the Marathas

Under the Akhilesh Yadav government things went from bad to worse, resulting in mockery being made of the SCBC. Seventeen of its members were Yadavs. One of my colleagues at the SCBC told me in April 2017 that the members would meet on a fixed day each month and be seated like cattle in the one hall allotted to them! They collected their TA/DA bills and never did any official business at all.

I conclude therefore that the experience of the UP model shows that it is crucial for subject experts to be appointed as Commission members. The Modi government’s preference for Sangh links for such appointments is all too obvious: therefore, one cannot expect this molehill of the NCESBC at the Centre to deliver any mountain-level measures!

And it is unclear what the Modi regime expects from the existing state-level SCBCs. The speculation is that it may strip the state SCBCs of the task of listing/delisting, and give this power only to the central NCESBC. If that were to happen, there would be no need of state level SCBCs.

How have ruling political parties, including the BJP, treated OBCs in general and their issues in particular?

In a research paper ‘What the Ruling Political Parties have Done with the OBCs’, which has been included in two of my books, I have analysed these matters in some detail. There are three operational models emerging from three types of different political parties: the Congress, the BJP and the so-called regional parties of the OBCs themselves.

The OBCs were not part of what Rajni Kothari called “the Congress System”. Their representation was miniscule and their issues were routinely ignored; it mattered little to Nehru, Indira, Rajiv and Manmohan Singh governments where the OBCs were headed and what their acute problems were. Yes, those of the OBCs who put up with this behaviour of the Congress got a few insignificant crumbs, like Bal Mukund Verma of UP, who became a deputy minister at the Centre. It was only during the latter tenure of Manmohan Singh that the Minimum Support Prices of major crops were increased and a bonus was introduced.

However, the BJP government under Modi did away with that bonus, and has been very miserly with the increases in the MSP during the three years of its rule. The BJP model of using – and abusing­ – OBCs was seen in their deployment in the Ram Mandir agitation and subsequent demolition of the Babri Masjid, and the 2002 carnage in Gujarat, where the BJP got all the gory work done by OBCs deployed as BJP foot soldiers. This continues both in cow vigilantism and in anti-Muslim communal tension that the BJP has repeatedly raised in different political theatres in the country, especially using it as a device to polarize voting in the elections to Parliament and to state assemblies. The Lodh BJP chief minister of UP, Kalyan Singh, had to facilitate the demolition of the Babri Masjid and take the entire blame on himself for the carnage, while those who actually planned and organised this conspiracy – all upper castes – walked off without any collateral damage to their political existence. Similarly, the first OBC Chief Minister of Madhya Pradesh, Uma Bharti, who was temporarily rewarded for her Ram Mandir work, was quickly dumped, followed by the dumping of Babulal Gaur. However, Shiv Raj Singh Chauhan has so far survived because he has proved to be the model OBC dummy of the RSS pracharaks in scandals like Vyapam, and in looting the state’s mineral wealth.

So far as the regional OBC outfits are concerned, their conduct provides a mixed record. OBCs have little role in Navin Patnaik’s long tenure in Odisha. The Dravidian party, the DMK, has established a model that can roughly be labelled a conglomeration of single, numerically preponderant OBC castes: some have now formed single-caste parties like the PMK, DMDK, and so on. They have replaced the Brahmins in committing atrocities of the worst types on the SCs in Tamil Nadu. A Tamil writer Perumal Murugan had to kill his writing career under pressure from politicians of his own caste! In Kerala, its OBC (Ezhava) CM had to face insults from both his own CPM party and of course the Congress and the BJP! The OBC ruled parties of Mulayam Singh Yadav and Lalu Yadav in Uttar Pradesh and Bihar, respectively, used the OBCs to get votes and then began unfettered loot of government funds, and denial of even ordinary benefits to other OBC communities. In fact, during the Akhilesh Yadav regime in UP, state civil and police officers were instructed not to oblige any Kurmi on any official matter!

The OBC issue has now come full circle. The RSS wants to get entirely rid of reservations, and a changed institutional framework like that of the NCESBC may be a step in this direction, more so if they can dig out a pig-headed OBC to head it and take the dictates of the RSS, as do Kalyan Singh and Shiv Raj Singh Chauhan.

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