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"Jiski jitni sankhya bhari, utni uski hissedari" (The greater a community’s population, the greater should be its political representation.)
Pegged on the back of the caste survey released by the Bihar government, this famous slogan, first coined by Kanshi Ram — social reformer and founder of the Bahujan Samaj Party (BSP) — has made a comeback to the popular political discourse in India.
One of the key findings of the survey, released on 2 October, is that the Other Backward Classes (OBCs), divided into Backward Classes (BCs) and Extremely Backward Classes (EBCs) in Bihar, have a share of 63 percent in the state’s total population of 13 crore people.
While the Scheduled Castes (SCs) and the Scheduled Tribes (STs) make for 19.65 percent and 1.68 percent of the population respectively, the survey also revealed that 15.52 percent of the state's population falls in the unreserved category.
These numbers led to Opposition leaders including Congress' Rahul Gandhi to raise a demand for 'jitni abaadi, utna haq', a rephrased version of Kanshi Ram's slogan calling for the rights of a community to be proportionate to its population. This demand has previously been raised by other 'Mandal-era' leaders such as Nitish Kumar and Lalu Yadav.
'The 50 Percent Ceiling is an Artificial Construct'
One of the biggest challenges to the concept of quota proportionate to a community's population is the '50 percent ceiling' on reservations in India.
In the 1992 Indra Sawhney and Others Vs Union of India case — also known as the Mandal Commission Case — the Supreme Court of India, while striking down a government notification reserving 10 percent government jobs for economically backward classes among the higher castes, upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population.
"The 50 percent cap is an artificial construct," said Vivek Kumar, professor at Jawaharlal Nehru University’s School of Social Sciences.
"This ceiling was broken when the government decided to give quota to the Economically Weaker Sections (EWS). Also, certain states like Karnataka, Kerala, and Tamil Nadu already have provisions for more than 50 percent reservation. But now, we're looking for breaking of this ceiling at the Centre," he added.
In 2019, the government of India brought in the EWS quota (through the 103rd Constitutional Amendment Act) to provide reservations in jobs and higher education to the Economically Weaker Sections (EWS) of society. The 10 percent reservation applies to those not covered under the existing scheme of 50 percent reservations for the Scheduled Castes, the Scheduled Tribes, and the Socially and Educationally Backward Classes (SEBCs).
In a landmark ruling in 2022, a five judge bench of the Supreme Court upheld the Act and rejected the argument that providing the EWS quota over and above the 50 percent ceiling fixed by the Mandal Commission case will violate the basic structure.
While passing the judgement, Justice Dinesh Maheshwari said “that ceiling limit is not inflexible and in any case only applies to the reservations envisaged” for the already reserved categories “by Articles 15(4), 15(5) and 16(4) of the Constitution”.
Over the years, several states have also passed laws breaching the 50 percent ceiling. These include Telangana, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Uttar Pradesh, Rajasthan, and Chhattisgarh among others.
Tamil Nadu, for instance, through its Act of 1993 reserved 69 percent of the seats in colleges and jobs in the state government. This was done by amending the Constitution, to place the law in the Ninth Schedule, after the Indra Sawhney judgment. The validity of a law placed in the Ninth Schedule cannot be examined by any court and no judgement can be made on it.
'Numbers Don't Lie'
According to Senior Supreme Court Advocate Colin Gonsalves, the 50 percent cap was introduced by the Supreme Court to strike a balance between reserved and unreserved seats in the absence of concrete data.
"When the 50 percent cap was introduced, there was no reliable data to determine who or how many people comprise the backward classes. It was because of that uncertainty in the numbers and percentages of the backward classes that the Supreme Court on the basis of a rough calculation capped the reservations at 50 percent," said Gonsalves.
It is also important to note that the Indra Sawhney judgement came on the heels of the Mandal agitation — a time when the OBCs in India were taking their first steps towards reservations.
In 1990, then Prime Minister VP Singh implemented recommendations by the Mandal Commission to reserve 27 percent seats in government jobs and public universities for the OBCs. This resulted in total 49.5 percent quota in government jobs and public universities. This, however, led to massive protests across India.
"One must keep in mind the Mandal agitations when we think of the 50 percent cap. If reservations at the time were not capped at 50 percent, there were chances that the protests would've have intensified. So, the Supreme Court's decision was not based on science or data but on the need to strike a rough balance. But now we have data and several precedents where the ceiling was breached," said Gonsalves.
Lessons from History and Politics
Reacting sharply to Rahul Gandhi's call for proportionate reservations, Prime Minister Narendra Modi, while addressing a rally in Chhattisgarh, one day after results of the caste census were declared, accused the Congress party of "trying to divide the society along the lines of caste.
"Since yesterday, Congress leaders are saying 'jitni aabadi utna haq'... I was wondering what the former Prime Minister Manmohan Singh has to say about it. He used to say that minorities have the first right to the country's resources. But now the Congress is saying that the population of a community will decide who will have how much share in a country's resources," said PM Modi while addressing a rally in Bastar.
"So now do they (Congress) want to decrease the rights of the minorities? Do they want to remove the minorities? Should the Hindus, who have the largest population, come forward and take their rights?"Narendra Modi, Prime Minister of India
The Prime Minister's claim that a caste survey will lead to the 'division of the society along caste lines' is not new. In 1930s, upper caste groups had also argued that caste census was being used by the British to divide the society.
In his 2022 paper 'Numbers as a Means to Power: Politics of Caste as a Census Category in Colonial India' published in the Economic and Political Weekly, scholar and academic Pritam Singh wrote, "Colonial census provided essential data that highlighted the marginalisation of the lower castes."
By citing multiple examples, Singh, in his paper, established how this data "concerning the marginalisation of the lower caste groups was used by anti-caste groups to demand political representation."
It was, however, the opposition by upper-caste nationalists that caste census was discontinued after 1931.
"When the demands of lower castes to seek representation in public sphere were seen as caste divisions created by the policies of the colonial state, then the upper castes started thinking of censuses as the most prominent cause for the promotion of such divisions. (MK) Gandhi, the foremost upper caste nationalist of the period suggested that 'untouchables are a human manufacture and that too by census enumerators. For him if the census operations ignored untouchability, the people would stop practicing it," Singh wrote in his paper.
Even Gandhi's rejection of BR Ambedkar's proposal for separate electorate as a form of affirmative action to empower lower castes, stemmed from the fear that separate electorates would “destroy Hinduism” by driving a wedge within the community.
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