Beginnings of backwardness

What the constituent assembly envisaged under the umbrella term of OBC and what it has become

gyanant

Gyanant Singh | September 18, 2015




Sixty-seven years ago when the drafting committee led by Dr BR Ambedkar suo motu introduced the phrase ‘other backward class’ (OBC) in the constitution, questions were raised as to who would be grouped in these classes. While Dr Ambedkar convinced the constituent assembly members that the decision be best left to the discretion of governments in future, the Patel-like agitations for OBC quota show that the country was yet to arrive at an objective answer to ensure that legal principles and not politics played a dominant role in the identification of beneficiaries.

READ: Old debate for new generation

Though courts have upheld caste being considered the starting point for identification of OBCs for the purposes of quota and other benefits, with caste also playing a key role in vote-bank politics, the primary focus of the policy of reservation more often than not shifts to chasing backwardness rather than eliminating it.

The unmindful inclusion of Jats in the OBC fold by the UPA government in the run-up to the 2014 general elections showed how the means become more important than the end when it comes to exploiting reservation for political purposes. The threat by Patels to dismantle the democratically-elected government in Gujarat if the community was not included in the OBC fold only shows the other side of the picture.

The supreme court order of March this year removing Jats from the OBC list highlights how the purpose of reservation can get frustrated if the policy does not focus on the end it seeks to achieve.

Affirmative action does not end with mere grant of the right to reservation. The inclusion of castes in the OBC list without any study on their backwardness hits upon the basic principle justifying affirmative action – equal treatment of two unequals is no equality.

While striking off Jats from the list to protect the right of backwards already in the list, the court observed that there may be a need to look beyond caste which would ensure dispassionate identification.

Though caste has now condensed as the basis for identification of OBCs, agitations and counter-agitations over reservation in the recent past show that far from achieving the objective of bridging the social divide, it was only broadening it.

Unlike scheduled castes (SCs) where caste on account of historical reasons was considered an appropriate basis for affirmative action, the constitution-makers seemed to have consciously omitted the use of the word ‘caste’ while referring to backwards other than SCs and scheduled tribes (STs).

In fact, Dr Ambedkar, as the chairman of the drafting committee, was quizzed by the members of the constituent assembly on what he meant by OBCs. This was for two reasons. One, the initial draft did not have the word ‘backward’ which was inserted subsequently by the drafting committee; two, the phrase seemed to be superfluous as the draft already provided for special provisions for SCs and STs.

TT Krishnamachari stressed that ‘backward’, being distinct from SCs, STs or any caste group, was probably introduced anticipating the possibility of application to a large cross-section of the community evidently not identified by caste.

“It does not say ‘caste’. It says ‘class’. Is it a class which is based on grounds of economic status or on grounds of literacy or on grounds of birth? What is it?” he asked.

Dr Ambedkar did not leave the question unanswered but his answer may have left reservation for OBCs open to exploitation for political ends. “A backward community is a community which is backward in the opinion of the government,” he said during the debate on November 30, 1948.

With members questioning the insertion as an “afterthought”, Dr Ambedkar admitted that originally when the article was discussed the word was not there but was included to fill the gaps in affirmative action.

Elaborating on this, KM Munshi, Dr Ambedkar’s colleague in the drafting committee, indicated that the idea behind insertion of the word ‘backward’ was to ensure no community was denied equality of opportunity in employment. “That being so, we have to find out some generic term and the word ‘backward class’ was the best possible term. When it is read with article 301 it is perfectly clear that the word ‘backward’ signifies that class of people – does not matter whether you call them untouchables or touchables, belonging to this community or that – a class of people who are so backward that special protection is required in the services and I see no reason why any member should be apprehensive of (sic) regard to the word backward,” Munshi said.

Though the constitution makers specifically recognised caste as a parameter for backwardness in the case of SCs, it did not add the appendage of caste while referring to other backwards which, according to Munshi, was a generic term transcending communities.

While Munshi referred to constitution of a commission for identification, Ambedkar stressed it would be finally for the government to decide.
And as the first law minister of the country, he had to take a stand in 1951 when the first amendment to the constitution was introduced to override a supreme court judgment striking down a Madras government order on reservation. Dr Ambedkar said in parliament that backward classes were “nothing else but a collection of certain castes”.

Apart from being in conflict with Munshi’s explanation, Dr Ambedkar’s stand also seemed to be at variance with his own views in some of the speeches made earlier in the constituent assembly. Ironically, the reason for the change in his view could be traced to his own statement. “The constituent assembly in making a constitution has no partisan motive… Parliament will have an axe to grind while the constituent assembly has none,” he said during a debate in the constituent assembly.

In 1949, Dr Ambedkar talked of the need to move away from the caste system which was a big hurdle in way of India emerging as a nation. “In India there are castes. The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity, equality and liberty will be no deeper than coats of paint,” he said in his speech in the constituent assembly on November 25, 1949.

It is evident that he was against deepening the caste divide even for ensuring equality, though he stressed that the caste system was a reality which could not be ignored.

“I remember the days when politically-minded Indians, resented the expression ‘the people of India’. They preferred the expression ‘the Indian nation’. I am of opinion that in believing that we are a nation, we are cherishing a great delusion. How can people divided into several thousands of castes be a nation? The sooner we realise that we are not as yet a nation in the social and psychological sense of the word, the better for us. For then only we shall realise the necessity of becoming a nation and seriously think of ways and means of realising the goal,” he said.

Though he felt the need for a roadmap for ‘the people of India’ to move towards ‘the Indian nation’, he left the task to the wisdom of future governments. 

The constituent assembly debate shows that unlike SCs and STs where vertical reservation limited to certain groups was envisaged, the decision not to link other backwards with any caste or religion indicated the constitution makers envisaged horizontal reservation by identifying a homogenous group of backwards cutting across castes and religions.

However, ‘backward class’ has now become synonymous with backward caste. This is because of caste being taken as the starting point for identification rather than any caste-neutral parameter like social, educational or economic status.

Going beyond caste


Though the supreme court has in a series of judgments upheld the prerogative of the government to frame the policy on reservation, it has in some cases tried to rationalise reservation by laying down guidelines to ensure objectivity in identification of castes. Besides, by formulating the ‘creamy layer’ principle the court has ensured that the affluent among the castes identified as backwards were excluded from availing the benefit of reservation.

The scheme as it stands today is that a caste becomes a class after the ‘creamy layer’ is excluded. Ironically, removal of creamy layer from any caste would leave people who can be safely classified as backwards. Such anomalies and inherent challenges posed by caste-based reservation have even been noted by the supreme court in some recent judgments.

‘’Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country,” a constitution bench observed in the Nagaraj case in 2006.

In the recent judgment on Jat quota, a bench comprising justices Ranjan Gogoi and Rohinton F Nariman stressed on the need to think beyond caste-based identification of backwards. “New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness,” the bench observed, while stopping short of altogether debunking caste-centric reservation as it was bound by judicial discipline to follow precedents set by judgments by larger benches.

The wisdom of the judges making the recommendation requires no test in the backdrop of the methods adopted by Patels and Jats to get reservation.

The importance of caste in vote-bank politics not only influences addition of castes to the OBC list but also prevents governments from excluding those classes who cease to be backward.

To proceed on the presumption that a caste classified as backward always remained backward amounted to raising questions on the very efficacy of the policy of reservation.

A government’s duty towards backward classes does not end with mere framing of a policy of reservation but with the successful implementation leading to removal of backwardness.


(The article appears in the September 16-30, 2015 issue)

 

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