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The Mandal Commission case

The issue of OBC demand for reservation and the dilemmas of choosing correct criteria to measure “backwardness” though remained on the backburner for quite sometime at the central level, some concrete efforts to find a way out emerged in the wake of the Janata Government coming to power in 1977. In pursuance of their electoral promise, the Janata Government in 1979 set up a Commission under the leadership of B.P. Mandal to look into the issues of Backward Classes and suggest measures to address their concerns. One of the major thrusts of the new commission was to determine the criteria for defining the socially and educationally backward classes. It was expected from the Commission to come out with more acceptable criteria than what its predecessors in Kalelkar Commission had offered.

How did the Mandal Commission settle the issue of determining backwardness and in what measure was it different from Kalelkar Commission? Due to paucity of time and lack of requisite resources (including research and academic inputs), the Kalelkar Commission had relied heavily on country wide tour to collect on-the-spot evidence to identify castes, classes and tribes as backward, whereas the Mandal made an effort to improve this gap by formulating a set of objective criteria to identify backward classes. The Commission took special care to tap a number of independent sources for the collection of primary data. Some of the important measures taken in this connection were: seminar of sociologists on social backwardness, issue of three set of questionnaires to state governments, central government and the public, extensive touring of the country by the commission, undertaking countrywide socio educational survey, preparation of reports on some important issues by specialized agencies like Tata Institute of Social Sciences and analysis of census data. By adopting this multiple approach the Commission was able to cast its net far and wide.

To generate number of indicators for criteria to determine backwardness, the commission initiated a countrywide socio educational survey, covering 405 out of 407 districts (two villages and one urban block in each district), with the help of the Bureau of Economics and Statistics of various states. The data gathered from the survey were computerized and 31 primary tables were generated from this data in respect of each state and union territory. Indicators for Backwardness were decided first by selecting a dozen of well known castes known for their educational and social backwardness from each state. These castes were treated as “Control” to test the indicators and derive various cut off points for a particular state. Then, on the basis of analyzing several variables including caste as an independent variable, 11 indicators or criteria for social and educational backwardness were derived under three heads; social, educational and economic.

Separate weightage was given to indicators of each group. A weightage of three points each was given to all the social indicators. The commission applied 11 indicators against various castes and communities that it enlisted through its socio-educational survey, state lists, public evidence and the personal knowledge gained through extensive touring and personal interviews. By using these criteria for both Hindus and non- Hindus, the Commission identified 3,743 caste groups as OBCs comprising 52 percent of total population contrary to 32 percent as estimated by the Kalelkar Commission. The 52% figure was arrived at by subtracting from 100 the population percentages for the SCs, STs and non-Hindus (22.56 and 16.16 respectively) as per the 1971 Census, and the percentage for “forward Hindus” (17.58) as extrapolated from the incomplete 1931 Census, and adding to this derived sum (43.7) about half of the population percentage for non-Hindus (8.4). So far as the recommendations were concerned, among others, the commission called for 27 % reservation for the OBCs in public services and scientific, technical and professional institutions run by the Central and State governments. The Mandal Report faced stormy protest and opposition both from the opponents and its architects.5 Besides, politically it received cold response as by the time the Commission submitted its report (December 31, 1980), the Janata Government had collapsed and the Congress Party had assumed power at the Centre. The Congress Government under Indira Gandhi’s leadership initiated very little to implement the recommendations made by the commission. After a series of protests and demands by Lok Dal led by Charan Singh, the Congress Government conceded to put the Report before the Lok Sabha Janata Dal, the distant heir of the Janata Party came to power.

Although the decision to implement the Mandal Report was taken in a hurry by V.P. Singh to unsettle the formidable political challenge posed by Devi Lal and the group, the issue had prominently figured in National Front’s election manifesto and V.P. Singh Government’s First Inaugural Address to the Parliament.

It said loudly that “the recommendations of the Mandal Commission will be implemented expeditiously”. This sudden announcement of new quota of 27 per cent brought a violent nation wide agitations, public outcry ultimately leading to the fall of V.P. Singh government in 1990. The implementation of the recommendations of the Mandal Report was challenged and opposed not only by angry students belonging to the upper caste Hindus, but also by the Supreme Court Bar Association. A writ petition was filed in the name of Indra Sawhney, one of the practicing advocates of the Supreme Court. A nine members Bench of Supreme Court in Indra Sawhney v. Union of India (Mandal-I) judgment made far reaching announcements defining nature and relevance of OBC quota. The Bench rejected the quota proposal for “economically backward” as suggested by the Government and went on to uphold 27 per cent reservation for the OBCs subject to the exclusion of socially advanced persons/sections (creamy layer) from amongst the OBCs and directed the government to evolve criteria for identification of this creamy layer. Importantly, the Bench sought the Government to revisit the OBC lists and find out more appropriate mechanisms than only the ‘caste’ to ascertain backwardness. In short, for the first time, the Highest Court recognized the legitimacy of OBC reservation in clear terms by clearing all ongoing doubts and controversies.

Protective discrimination doctrine

The Constitution of India is prefaced by a resolve“ to secure to all of its citizens. EQUALITY of status and opportunity.. ” Accordingly, it confers on all citizens a fundamental right to be free of discriminatory by the State on grounds of race, religion and caste In -specific contexts goverrilli.ent is further forbidden to discriminate on grounds of place of birth, residence, descent, class,s language and sex.s Additional provisions outlaw untouchability and protect the citizen from certain kinds of discrimination on the part of private persons and institutions. It is envisaged that Government will not only refrain from discriminating but will actively undertake to remove existing discriminatory practices in 'the private sphere But this attack' 'on discrimination is only one facet 'of the constitutional scheme to secure equality.

The Constitution also directs and empowers the Government to under. take special measures for the advancement of backward groups. It is a “ Directive Principle of State Policy” that: economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Consonant with this directive, the general provision forbidding discrimination by the State (Article 15) is qualified by Art. 15(4), which provides that the State may make .. any special provision for the advancement of any and educationally backward classes of citizens or Scheduled Castes and the Scheduled Tribes. Government employment, is qualified in Article 16(4) to permit the State to make. “ any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. In authorizing preferential treatment for the backward on the basis of membership in backward groups, India is experimenting with a method of ameliorating group differences that has been little used (and is very possibly constitutionally prohibited) in dealing with minority problems in the United States. The American observer, though familiar with measures designed to outlaw discrimination, finds this principle of “protective discrimination” novel and strange.