Should the 50 % legal ceiling on reservation be reconsidered?

Updated - October 13, 2023 05:06 am IST

Published - October 13, 2023 01:02 am IST

Staff collect information from residents for the Bihar caste survey, in Patna.

Staff collect information from residents for the Bihar caste survey, in Patna. | Photo Credit: PTI

On October 2, the Bihar government released the data of its caste survey. The data showed that the Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) together account for about 84% of the population. This has reopened the debate on whether the 50% legal ceiling on caste-based reservation should be removed. Kalaiyarasan A. and Alok Prasanna discuss this question in a conversation moderated by Pon Vasanth B.A.. Excerpts:

Do you think the initial findings of the Bihar caste survey has necessitated the reconsidering of the ceiling of 50% on reservation set by the Supreme Court in the Indra Sawhney case in 1992?

Kalaiyarasan A.: The breaching of the 50% ceiling looks like an inevitable historical process. Many political scientists and sociologists view the 50% ceiling as arbitrary because the judiciary did not have numbers to back that cap. For all practical purposes, some States have already breached this. Tamil Nadu provides 69% reservation through a 1994 law, which it has protected from judicial review by getting it placed under the Ninth Schedule of the Constitution. More so, the [10%] reservation for the Economically Weaker Sections [EWS] brought in by the Central government [in 2019], has, in a way, already breached the 50% ceiling.

Explained | The impact of the Bihar caste survey

Alok Prasanna: The 50% ceiling came out of nowhere; basically, in one judgment [M.R. Balaji, 1962], the court said maybe there has to be some limit. Then, in T. Devadasan, it extended the limit to government jobs as well and said that it did not want to take away equality of opportunity, guaranteed under the Constitution. Later, in the N.M. Thomas case (1976), the judiciary had a rethink. The Supreme Court found the 50% [ceiling] unreasoned and pushed back against it. States such as Karnataka and Tamil Nadu thought that they could provide more reservation. However, the bigger push back came in the Mandal case [Indra Sawhney] where the judiciary essentially elevated the principle [50% limit] almost to a status of a fundamental right. Even in the EWS judgement, which has huge problems of its own, the Supreme Court said it may be okay with 10% for EWS, but that shouldn’t mean that it is okay to go beyond 50% for caste-based reservation. The judiciary is, however, not able to defend this in a principled way. One big State, such as Bihar, has to take the lead and dare the Court with the information it has and a litigation strategy. Are we willing to ask the Court to reconsider its judgment in the Indra Sawhney case? This is not difficult or impossible per se. But the political moment has to be right.

Bihar has only released the caste-wise count of its population, not the socio-economic data yet. There have been debates about the extent of backwardness of castes within the OBC classification. There have been demands from a few communities for inclusion into the OBC, SC or ST categories. Will the release of socio-economic data lead to demands for the reconfiguration of these categories?

Kalaiyarasan A: OBC is an administrative category and not a caste category. There are heterogenous castes grouped under what we call OBCs. There is a risk of the landed and locally dominant communities taking more advantage. So, sub-categorisation of communities which do not have enough representation will become necessary. Bihar has the Extreme Backward Classes category and Tamil Nadu, the Most Backward Classes category. The process of sub-categorisation will be inevitable not just for political reasons, but for reasons of right to representation and for addressing backwardness.

Also read | Supreme Court judgment on EWS quota provides impetus for States looking to breach quota ceiling

Alok Prasanna: In the 1980s in Karnataka, the Venkataswamy Commission’s report caused a huge controversy because the Vokkaligas and Lingayats were found to be much better off than most other backward castes. In the present context, in the Jaishri Laxmanrao Patil case [where reservation for the Marathas was struck down], the Supreme Court said Marathas are as well off as any other “upper” castes.

This leads us to a conceptual problem. Unlike SCs and STs, there is no clear way of defining the OBCs. The Constitution says OBCs are “socially and economically backward classes (SEBCs)”. We are saying let’s look at data. But the data are useful when you have some idea of what you’re looking for. For instance, if the number of government jobs is a factor, a lot of “advanced OBCs” will not be eligible for reservation. Just by setting a barrier and saying that everybody who is below is a SEBC may have led us to this position, where certain castes have actually taken the big chunk [of the benefits of reservation]. Therefore, sub-categorisation is necessary, but it can only happen when there is some serious conceptual jurisprudential rethinking of who belongs to a social and educationally backward class.

Congress leader Rahul Gandhi has raised the slogan of “jitni abadi utna haq (representation according to the population”). Will a caste census lead to individual caste groups demanding separate reservations, depending on their numbers? What will be the implications of such demands?

Alok Prasanna: The BJP government in Karnataka, just before the [2023 Assembly] elections, tried to do a sub-categorisation within the SCs. There was such a strong political reaction to it that the ‘most well off’ among the SC communities, who had started to support the BJP, attacked B.S. Yediyurappa’s house. Sub-categorisation is a zero-sum game. The BJP thought it would get the less well off SCs on its side. However, it ended up losing the support of the ‘better off’ SCs.

Also read | We will remove the cap of 50% on reservation through legislation: Congress

Also, if there is sub-categorisation, it will also open up the question of whether some castes should even be on the list. It could get subsumed in a political tug of war and may not necessarily lead to the most optimal solution in the context of ensuring representation.

Kalaiyarasan A: I’m not sure Mr. Gandhi used it in the sense of essentially translating it into reservation according to the population. The question he is raising is that there is some kind of group-based deprivation. The slogan does not mean dividing castes at a granular level, but grouping together sets of castes which are similarly positioned, to make a group-based representation or policy response to address the deprivation. Obviously, there is a risk that political parties or caste groups will take the slogan to mean specific caste-based mobilisation. We need to remember that caste is always divisive. Whether addressing group-based deprivation will lead to caste-based mobilisation is something we need to be mindful of. But it need not that way. We can simultaneously address caste-based deprivation while stopping caste-based mobilisation.

Some are concerned that a caste census will lead to further accentuation of caste identities and a fragmented polity.

Alok Prasanna: In one sense, there is validity in that criticism, but it is also not something to say to not do something [caste-based survey]. The reason is, these identities are there. It’s just that the administrative state is not officially recording them. But I feel that there is something that the discourse on reservation is missing. There are two larger forces at play. One is the privatisation of the state. The state is outsourcing a lot of its work to private entities, which are not particularly going to be bound by obligations relating to caste or reservation. We are also seeing contractualisation of labour. The second is that a lot of States have just stopped filling vacant posts. We are essentially fighting over jobs which don’t exist any more. The problem, perhaps, with this discourse on reservation is that it is being rendered irrelevant in some ways. We are discussing percentages when the pie itself is disappearing. The discourse should be what is the size of pie that you’re going to distribute.

Also read | Caste census an X-ray to find out problems of OBCs: Rahul Gandhi

Kalaiyarasan A: Castes are a reality. Counting does not necessarily lead to strengthening of that reality. There may be potential that people, political parties, or individuals with vested interests will exploit this. However, that should not stop us from accounting the existing realities. A caste census has to come along with a simultaneous ideological campaign or a kind of political mobilisation which counters or tames individual caste mobilisation.

With the demand for a caste census, will the Opposition parties be able to disturb what the BJP has achieved electorally, i.e., consolidating Hindu votes across caste lines?

Kalaiyarasan A: I see this moment as Mandal 2.0. The present situation, in the shorter run, would push the BJP into a defensive mode, which has already started happening. In the longer run, it is possible that the BJP may adjust to this new reality. Caste mobilisation happening without any social or broad-based anti-caste mobilisation can lead to upgrading of status in the hierarchy of the Sanskritisation process, which may help the BJP. A great example is U.P., where Mandal 1.0 pushed back the BJP. But the caste mobilisation that followed did not address the anti-caste sentiment or other broad-based problems. As a result, BJP mobilised the left-out communities.

Explained |The case for caste census in India

Caste by design is divisive. You need some kind of a glue to put castes together. The question is whether that glue is Hindutva that preserves caste or the Bahujan identity or the Dravidian or some kind of class-based mobilisation, which transcends caste identities and bring these communities together to provide a meaningful representation.

Kalaiyarasan A. is Assistant Professor at the Madras Institute of Development Studies and Visiting Research Fellow at the King’s College London; Alok Prasanna is Co-Founder and Lead, Vidhi Karnataka

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