The Supreme Court judgment does not mean the end of the debate on reservations. A long-standing challenge for those who support affirmative action is to end the phenomenon of quotas being an instrument of political mobilisation rather than a mechanism to ensure social justice. The main issues that need addressing are identification of Other Backward Classes, the criteria for deciding the creamy layer and the fallout of sub-classification of the intended beneficiaries. None of these issues can be seen as having been permanently decided by the Mandal Commission or the courts nor can they be seen as not changing over time.

Suhas Palshikar (suhas@unipune.ernet.in) teaches politics at the University of Pune.

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This note is an attempt to record this discomfort and suggest the areas of critical weakness in the social justice debate, particularly the reservation debate. The social justice discourse has many dimensions – there is one dimension that can be described as the ideological dimension, another is the political dimension. Then there is a third dimension of social justice policy and finally there is social justice administration. It can be argued that social justice policy and administration are informed by ideology and the politics of social justice. Hence the crux of the argument here is to revisit our ideas of social justice and the politics surrounding them.

The Supreme Court ruling on quotas in central institutions of higher education has kept at bay the critics of the quota policy, but, ironically, the pro-quota sections have gone into top gear – not only celebrating victory, but also demanding a tighter grip of quota strategy over our public policy. Two demands can easily be identified as becoming very vocal in the near future: the demand to abandon the “creamy layer” policy and the demand to introduce quotas in private sector jobs and privately run unaided educational institutions. For the moment, the former has gathered momentum with most parties voicing their support for a re-look at the creamy layer issue. This steadfastness in either circumventing the creamy layer issue or doing away with it entirely through legislation cannot address the deeper issues that the quota strategy has thrown up.

basis of Mandal. Having won a victory, the supporters of quotas will now face another series of challenges over a period of time. One might describe the key challenge as “cross-border infiltration” of the beneficiaries of quotas. This is, of course, not new; but the war of claims will now intensify.

How to Identify OBCs?

The category of Other Backward Classes (OBCs) is a porous one. The Constitution gives limited assistance in defining this category; the Constituent Assembly debates less so. Therefore, one has to agree that the boundaries of the OBCs will evolve through deliberations and contestations. Supporters of quotas, policy planners and social scientists have very inadequate answers to this complex issue. To put it crudely, the supporters of quotas draw their answers either from an idealised notion of the Hindu varna-caste society and/or from the 19th and early 20th century contours of social cleavages. Thus, they would argue that all non-kshatriya castes are backward. Or that all castes supposedly originating in the shudra varna are OBCs. This positioning has a historical relevance in the sense that in the 19th and early 20th centuries; certain battle lines were drawn in the “lower caste” battles for social justice and equality. Dalit/non-dalit was one such constellation (as explored effectively by Ambedkar), while brahmin/non-brahmin was another (the non-brahmin movements in Tamil Nadu and Maharashtra represented this trend). The shetji-bhatji (trader and brahmin castes)/shudra-atishudra divide was yet another (having its origin in Jyotirao Phuley). Later, in the 1920s and 1930s, in Maharashtra the category bahujan caught the imagination of many scholarsthinkers and activists. This category gave the elite/mass dimension to the politics of drawing battle lines. Except for

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the first (dalit/non-dalit), all the other formulations attempted to refer to backwardness emanating from the caste system in relation to the non-dalit and non-brahmin castes.

As awareness of rights emerged among sections of the people and as democratic politics unfolded – facilitating and resulting in popular mobilisation, it became more and more complex to neatly define which sections fall within the OBC category. While the supporters of the quota strategy sought to fit the legal definitions of OBCs into the battle lines listed above, the government had to decide on more tangible and contemporarily relevant criteria for defining the OBCs.

Till the time Mandal Commission was constituted, this task was shouldered mostly by the state governments and thus it was both more sensitive to state level situations and to state level political considerations. The Mandal Commission attempted to infuse a degree of systematic social scientific study in identifying the OBCs. This it did with many limitations and certain ideological predilections. All the same, it introduced three sets of criteria for identification – socio-cultural, educational and economic. These carried differential weights, but it is interesting to note that even with its ideological predilections and a priori assumptions about caste being the basis for identifying backward communities, the Mandal Commission thought it necessary to dis aggregate the factors contributing to backwardness and take a more comprehensive view of the issue. Thus, even if we were to remain within the broad framework as laid down in Mandal, two things would be inescapable. One, caste alone is not a oneway ticket to inclusion in the category of OBC. Two, that backwardness cannot entirely be assessed without reference to material conditions. Perhaps, thirdly, the Mandal framework also underscores the need to formulate a policy package through massive data gathering through state support and also in a systematic and social scientific manner.

Gate Keeping Mechanisms

Any social justice policy must ensure that benefits actually go to the socially disadvantaged sections as targeted by the

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policy framework. There must be adequate ways to protect the policy from being overwhelmed by the proverbial camel by driving out the legitimate claimants. Mandal framework (as approved by the SC) prescribes three mechanisms for protecting the boundaries of OBC category from infiltration and subversion: (a) identifying backwardness on the basis of systematic investigation; (b) pruning of the less needy by applying the creamy layer criterion; and (c) periodic public scrutiny of claims for inclusion and exclusion to ensure that the needy groups get the benefits and that the relatively advanced sections do not crowd the list of beneficiaries. To this a fourth mechanism came to be added through politico-administrative considerations: dividing the OBCs into groups with fixed quota; quota within quota. What has happened to these four in the past two decades since the adoption of Mandal recommendations in 1990?

On methods to define backwardness and identify backward groups, nothing has happened in this period. The question of what constitutes backwardness and how far caste contributes to it are very rarely addressed. Only the anti-reservationists routinely (and with considerable ignorance of social reality) implicate this question. The social justice discourse has not addressed this in the spirit of appraisal, review or reassessment. The list prepared by the Mandal Commission is flaunted as the final statement on the matter (unless you are demanding inclusion in the list). The Mandal methodology and findings are seen as the last words in the social scientific discourse on social justice. Even efforts to substantiate what the Mandal Commission found out about backwardness are seen as unnecessary and no new knowledge addition has taken place in this regard over the last two decades (to be precise three; since the report came out in 1980 itself). The anti-Mandal lobby cannot be blamed for this – it was the responsibility of the pro-Mandal forces to collate information, to supplement it and to rectify it; it was also their responsibility to innovate new methods of pinpointing backwardness more effectively. The state machinery also worked on the basis of minimalism and did not engage in the issue of backwardness imaginatively.

When the Mandal ruling came in 1992, the supporters of Mandal were disappointed about the idea of excluding the creamy layer. But the idea remained and was forced down the throats of policy planners. So, all that happened was the idea was subverted in its implementation. Of course, the creamy layer became the filter officially; but only for the babu to wield his/her petty influence and perhaps to make more money through graft. The creamy layer added to the ever growing list of national hypocrisies. The spirit behind the idea was never implemented. The Court introduced the idea partly as a compromise and also worded it somewhat clumsily – the analogy is only indicative but needs to be explicated more seriously. This is an area where the social science fraternity and state planners should have worked. The Court gave enough space to the government and to the public in general to elaborate on the two issues involved. One was about mixing the group basis and family basis as two factors in the administration of social justice. The other was to supplement the weak economic criterion in the Mandal methodology in defining “social and educational backwardness”. Both had very relevant and major implications for redefining social justice policy. Instead, the state stuck to the “income” criterion apart from the criterion of landholding. Again, a periodic review of these criteria and their redefinition were never seriously attempted.

The political class generally looked upon the entire OBC discourse as a route to electoral bloc building and therefore did not want a nuanced social justice policy. This preference for short-term electoral gains rather than shaping the larger politics of social justice as a movement made the political actors sensitive to the possible effects of a strict filter. Instead, they veered towards a general, open-to-all social justice policy that would apply to society in a non-disaggregated manner.

In fact, the same approach characterises the response to the latest Supreme Court ruling. The pressure is on the government to ask for a review of that ruling and failing this the government would be expected to legislate on the matter and dispose off the idea of the creamy layer. It would be a mistake to look at this

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development as yet another skirmish between the judiciary and the legislature. This has implications for the politics of social justice. It is, of course, true that the income criterion does not satisfy the requirements of the principle. Therefore, it may be advisable to search for proxies that would give us some handle on the question of the relatively privileged are and whose material privilege offsets their social disadvantage. Or, at least, they have the wherewithal to combat the social disadvantage and hence can be outside the policy radar of reservations for social justice. For instance, a certain kind of education can be a good indicator of access to resources that might counter-weigh the social disadvantage.

Politics of Reservations

What also happened with Mandal – the commission was not responsible for this – was that the issues of reservations and identification of the backward classes, became the platform for political mobilisation. Inclusion in the OBC category was naturally seen as an important thresholdcrossing moment for many groups and mobilising different groups for this demand became the basis for the politics of many parties and organisations throughout the 1990s and in the current decade. The response of the political establishment was manipulative, ad hoc and devoid of any firm policy or ideological basis. It was almost cynical. The ideology of social justice was bypassed or subverted for the purpose of building political loyalties among social sections. The claim to backwardness was converted into a political resource rather than a test for receiving the benefits of the reservation policy. A certain nature of majoritarianism crept into the reservation discourse that obfuscated issues of backwardness.

By far the potentially most explosive issue is inclusion or exclusion of groups identified as needing reservation benefits. This is where the porosity of the OBC category comes into play. Unlike the dalit and adivasi groups in whose case inclusion in the scheduled categories is comparatively less complex, the OBCS do not have any strict socio-historical boundary even at the state level. While one can keep arguing about who had origins in the shudra varna traditionally, contemporary decisions are made more on the basis of political-popular considerations. This means that inclusion in the OBC category will depend more on the political skills of the leadership from within the group and political bargaining power of that group in the state or nationally. This also leaves out the possibility of a periodic review of social status of various groups and a possible exclusion of some groups that have now crossed the threshold of status, opportunity and resources.

The experience of the past two decades shows that many groups are included in the OBC category mainly on the basis of their political clout – the examples of the lingayats or jats amply demonstrate this. The continuing demand in Maharashtra for inclusion of the entire maratha community (as against the inclusion of only the kunbi-marathas as at present) in the OBC category is another instance of the intertwining of state-level politics and social justice agenda. The demand of the gujjars for exclusion from the OBC category and inclusion in the ST category further demonstrates the inability of the OBC category to accommodate interests of many communities. More than a decade ago, the Gowari community from Maharashtra also made a similar plea for inclusion in the ST category. These instances show that as the OBC category keeps expanding in order to include the regionally upcoming caste groups, smaller castes would want to move out of the OBC umbrella and take refuge under a crowded category of STs at the state level. Even the lingayats occasionally demand inclusion in the SC category. This situation calls for a better organisation of the group boundaries for purposes of administering social justice policy.

Sub-Classification

Many states have been aware of the crowding factor – and the subsequent takeover of all opportunities by one section of the OBCs. Both in the south and in the north, sub-classification of the OBCs has been attempted. However, this process has been fraught with pressure tactics and political considerations rather than based on any deliberated and empirically defensible criteria governing the policy of sub-classification. In Maharashtra, the state has attempted a detailed fragmentation of the opportunity structure for OBCs to ensure that each section among the OBCs gets minimum benefits from the policy of reservations. This looks fine on paper; but creates many difficulties. For one, such sub-classification leaves minuscule opportunities for most groups such that in a typical situation where less than 40 seats are available, most groups with 2 or 3 per cent seats end up not getting anything. Besides, it is rued that such subclassification often ensures a large reserved pool of reserved seats for the main – and more dominant – caste from among the OBCs. Thirdly, contestations over sub-classification continue as the information base for this is somewhat thin and arbitrary at times. For instance, the proportion for each subgroup is contestable since there is a paucity of data about the share in the population. But more importantly, it is not the lack of information base; but the lack of direction and principle – is it proportion that we are looking at or is it the intensity of need and severity of existing deprivation? What if a certain relatively less backward community were to have a 50 per cent share among the backward segments – do we then give 50 per cent of the reserved seats to that community?

During Mandal I, many supporters of the OBC reservations argued that subclassification would make mobilisation of disadvantaged groups difficult. This complaint has merit, though it betrays the dilemma – is our reservation policy going to be ameliorative of inequality or is it going to be a platform for political mobilisation of the disadvantaged groups? Under pressure from the reservationists, there was no sub-classification of OBCs to begin with. Now, after two decades of OBC reservations, it transpires that every caste group aspires for a separate quota and, ironically, this demand for sub-classification now forms the basis of political mobilisation among many caste groups. This has not been confined to OBC reservations alone. Among SCs, there is much disenchantment that only some sections or castes take away the benefits at the state level. This has led to a severe schism among the dalits in many states.

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One popular demand has been to divide the SC category and give separate reservation-quotas to each classified group. This development should alert all supporters of the social justice policy. This requires introspection on many counts: one, if we subdivide the beneficiaries of quotas, will that help the more backward? Will this strategy undermine the larger political unity of all downtrodden? How do we ensure that the first claim on benefits from any social justice measure rests with the most needy – the last person in the queue?

A substantive internal critique of the reservation discourse is urgently needed mainly because the regime of reservations is expanding in many ways. If the quota policy is not to become blunt, supporters of quotas and the social justice policy in general will have to address the issues here.

Given the complex nature of the interface between democratic politics and the demands of an efficient social justice policy, questions are asked more easily than they are answered. But not to try to answer these questions may lead to a caricaturing of the policy of social justice. In the worst case scenario, there are three possibilities as far as the future of the quota policy is concerned: one is that it will remain a token gesture. In which event, the policy that will remain on the statute book will be a bureaucratic maze that does not satisfy any group. Second, it will become a political handmaiden of powerful social groups at the state level. This will benefit the less needy – occasionally the advantaged and set one group against the other from among the disadvantaged communities. Thirdly, increasing emphasis on implementation of quota and classifications of beneficiary groups will lead to a misconception that quotas imply proportionality rather than the logic of social justice. We already witness this tendency in the growing spread and popularity of caste associations claiming certain histories and numerical strength. All these portend the weakening of the social justice platform in the long run.

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