Constitutional Status to NCBC Welcome, But Also Raises Anxieties: PS Krishnan

P S Krishnan was the Secretary, Ministry of Welfare in 1990 when VP Singh government implemented the Mandal Commission Report seeking to provide 27% reservations to socially and educationally backward classes. The decision was taken on the note prepared by Mr. Krishnan, who is considered one of the few authoritative voices on social justice with over seven decades of experience under his belt. He continues to engage on issues related to SC, ST and Socially and Educationally Backward Classed.

On the eve of the Lok Sabha taking up the bill for further discussion and passage, in this detailed interview to Sumit Pande, Mr Krishnan attempts to decode the Constitutional Amendment Bill introduced in Parliament by the government earlier this week to give constitutional status to National Commission for the Backward Classes or NCBC. Analysis and views in this interview are personal and should not be read as a statement or communication on behalf of government.

Question: How do you interpret the insertion of article 342(A) in the constitution for declaring any caste socially and Educationally Backward?

Answer: The bill introduced in LS on the birth anniversary of Babu Jagjivan Ramji has got its good and welcome aspects, and some aspects which also raise questions and anxieties. Ariticle 342(A) provides, as in the case of SCs, that there will be a Presidential list issued first in consultation with the governor of the state and any subsequent change in the list can be made only by parliamentary law. This will bring more transparency to the entire process.

But it also raises a question on what happens to the existing list. For example, what will happen to the Central list of backward classes for each state which is applicable for reservations in jobs, seats in central education institutions and for proving other welfare measures?

Parallel to this. there is a state BC list of each state, applicable for reservations in state educational institutions and jobs. In most of states, the two lists are identical or nearly identical. There are a few differences between the central and the state list, especially in the case of Karnataka and Tamil Nadu. So the question is, what happens to the existing list. That should have been clarified so that there is no anxiety for the backward classes. It should be clarified that till such time the Constitution Amendment is enacted and lists are notified by the president under article 342 A( 1), the existing list shall remain in force and members of SEdBCs in the existing list will continue to get the benefits of reservations and other social justice measures as at present without interruption.

Question: Why is there a parallel Central and State OBC list in existence unlike the SC/ST list which is uniform for both state and the centre?

Answer: The first Backward Classes Commission that is Kaka Kalekar Commission was set up 1953 gave its report in 1955. The then central government in 1961 said centre will not make a list of backward classes and the states can have their own list if they choose. The argument was that the five year plans were already undertaken will mainly benefit the backward classes and hence no such list was required. This proved to be erroneous because it was subsequently proved that gap between SEdBC on one end and socially advanced castes on the other continues to be was very wide in every parameter of development and welfare, with SCs and STs at the bottom and SEdBCs far below the socially advanced castes.

This dichotomy did not exist in the case of SC and ST thanks to Baba Saheb Ambedkar and distinguished administrative and demographic scholars especially Mr Hutton who in 1931 census listed SC on the criteria of caste subjected to un-touchability which was brought into effect by Government of India Act 1935 with the drawing up of state wise central SC list. This was continued in the Constitution of India following which the 1951 Presidential Orders scheduling SCs and STs were issued. So there was single list for SCs and STs issued by the centre, state wise, which could be amended only by an act of parliament.

This dichotomy in SEdBC list is sought to be removed in this bill, but whether the states will agree to it is the question. The states will have to be taken into confidence and shown that no injustice will be done to backward classes in any way.

Question: Does the bill give more transparency in the inclusion of a particular community in the BC list?

Answer: State governments are exposed to muscular pressures of communities which are not socially backward to force their way into the SEdBC list. The centre is also not free from that pressure, but the centre is less vulnerable to pressure. There has been one instances in the past, for example in the run up to the 2014 elections the then central government with an eye on electoral considerations included a particular community in the BC list despite advice to the contrary by the NCBC. The decision was later struck down by the Supreme Court on challenge by existing genuine SEdBCs in the list. In the case of a few states there are more such examples.

The stipulation in article 342a(2) that any inclusion or exclusion after the prez notification of this, can be made only by parliament by law imparts greater transparency to the process. It is more difficult to get a wrong or arbitrary decision to the parliament which is always open to public gaze scrutiny than through an executive order.

Questions: Does this mean there will be only one Central List of SEdBCs if the bill is passed? Does this mean only the centre will have powers to include or exclude anyone from the state list?

Answer: To my understanding, there will be only one central list for each state. Just like that SC and ST. The list is state-wise but issued by the President.

But state governments will have the opportunity to ensure that genuine socially backward castes continue to find place in the presidential list in the process of consultation with the governor prescribed by article 342 B (1). So long as there is not effort to bring any socially advanced caste in the SEdBC list, there can be no difference between the central and state governments.

There will be no separate state list. If this bill goes through there will be a central list for each state as in the case of SC and ST.

Question: So if this bill goes through, any state government if its wants to include or exclude any caste will have to take the parliamentary route?

Answer: If this bill goes through, inclusion or exclusion of any caste subsequent to the intial prez notification can be done only by an act of parliament as in the case of SC and ST. In the case of SCs the criteria is un-touchability. In the case of STs, the community must be shown to be a tribe which suffers from isolation and remoteness in vulnerable conditions. This has to be proved anthropologically. This is ensured by the long established process of referring every proposal for inclusion in the SC and ST list to the RGI who has an experienced anthropological wing. Then the government moves a bill in parliament.

Question: So in the current scheme of things if a state government seeks to provide reservations to a community in the state SEdBC list, what is the process?

Answer: In the current scheme of things, this community must file an application in the state commission for the backward classes with evidence to show that it is a socially backward community. The advice of the state commission is ordinarily binding on the state government.

For inclusion in the central list, request has to be made to the NCBC whose advice is ordinarily binding on the central government.

The correct meaning the term socially and educationally backeward is generally not understood. Social backward is not concept that can be measured in arithmetical and statistical term. There can not be quantifiable data of social backwardness. Social backwardness is a social fact indicating the position of a caste in the traditional social system of India called the Indian caste system in which certain caste are considered to be low.

Often castes which are considered to be low are linked to a traditional occupation which is also considered low. It does not mean that everyone in the castes does that occupation. ; it means that that particular community is linked to that particular occupation and those who are engaged in that occupation belong to that caste. Often the caste name is derived from their occupation. For example, Nai, Lohar, Julaha ect.

So if a community wants to be included in the state list, it must make a representation before the state government. Then it must be transparently established whether that community is socially and educationally backward, and in the case of employment whether it is inadequately represented in services of the state. If these questions are answered in the affirmative, then the state BC commission makes a recommendation to the state government which is ordinarily binding on the state government on the basis of the apex court Mandal Commission Judgement of 1992.

In the present scheme of things, if a community wants to be included in the central list, then this representation has to be made to NCBC at whose advice ordinarily binding on the central government. This is the current position on including a caste in the state or the central list.

Question: How will the new commission be different from its earlier avatar?

Answer: The bill has recognised that BCs also need development in addition to reservations. There are provision in the bill for development

of SEdBCs and the new NCBC’s role in the development process. But I wish the wording of the provisions were clearer as were recommended by NCBC in 2000. The new NCBC is a given role of addressing the grievances of SEdBCs. These are important plus points in the bill. It is also a plus point that article 338 B (1) makes it clear that it is a commission for SEdBCs though I would have preferred this to be mentioned in the name of the commission itself.

Also, the other aspect is what is the process of inclusion and exclusion of a community in the BC list under the constitutional amendment. The Mandal case judgement of the Supreme Court wanted an expert body in the nature of a commission or a tribunal to advice the government on this aspect. In the light of this NCBC act provided that the chairman should be a former judge so that the commission can adhere to a judicial approach; and member secretary should be a former secretary level officer of the government of India, one member should be a social scientist, And two persons with special knowledge of the socially backward classes. This feature of expert body, as directed by the Supreme Court, is not provided for in the composition of the NCBC Bill.

The composition should reflect this feature of an expert body as mandated by the SC and also developmental process expertise required by the developmental role. The task entrusted to the commission in article 338B(5) does not include this advisory role for the commission. Along with this the SC mandated condition that its advice shall ordinarily be binding on government is also missing. Article 338B (5) is also silent on the SC mandate on periodic revision of the SEdBC list in consultation with the NCBC. The Composition of the government does not reflect what is required to make and expert body. In this respect the deviations from the SC directions on the Madal case judgement need to be corrected.

The present bill only says one chairperson, one vice chairperson, one secretary and three other members; it has been mechanically repeated for what is said for SC and ST Commissions. Whereas in the case of SEdBC an expert body is required for finding and advising whether a caste which makes a list for inclusion fulfils the criteria of social and educational backwardness and inadequacy of representation or not.

And on that basis whether it should be included in the list or not so that there is no arbitrariness or electoral considerations entering into decision regarding inclusion or exclusion of castes in the BC list.