The Narendra Modi government wants to bring about inclusive growth, but in its bid to do so it has turned the social justice project under the Indian Constitution on its head.
It is one thing to say that every group that needs the state’s support must get it; it is entirely different to say that the most privileged castes are as eligible for state patronage as the most disadvantaged. In India’s birth-based and hierarchical caste system, Brahmins are at the top of the order, while Dalits are not even a part of it and are simply labelled as outcaste.
A social engineering that’s problematic
Parts III and XVI of the Indian Constitution are its heart and soul. While Part III grants fundamental rights to the citizens, Part XVI addresses the special needs of certain sections – the Scheduled Castes and the Scheduled Tribes (SC/STs) and others – who have historically not been in a position to access their rights primarily due to caste discrimination. Part XVI (from Articles 330 to 342) is based on the assumption that while the SC/STs are the victims of caste, there might be other ‘socially and educationally backward classes’ left out of development and need state’s help.
As the Constitution framers were not sure of the identity of this latter group, they called for the establishment of a commission under Article 340 to find out what these classes were and recommend measures to help them –this group came to be known as the Other Backward Classes (OBCs).
But this process of identifying people in need of help seems to have now entered a phase of chaos.
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Recently, two amendments to the Constitution (123rd and 124th amendments) have sought to create social engineering of a problematic kind. While the 123rd amendment’s import is that Shudras (OBCs) are as worse off as Dalits and tribals (SC/STs), the 124th amendment equates the upper castes – the Economically Backward Classes (EBCs) among them – with the Shudras.
The blurring of well-recognised social cleavages appears to extend the logic that acknowledging social divisions, like caste, accentuate those divisions.
A commission for backward classes
The government has set up the National Commission for the Backward Classes (NCBC) through the 123rd amendment, which inserted a new Article 338B in the Constitution. This Article, which falls under Part XVI, is actually a replica of Article 338 under which the National Commission for the SC/STs (NCSCST) was set up.
In the early 2000s, the government bifurcated the NCSCST into two: one for the SCs under Article 338 and the other for the STs through the insertion of a new Article 338A. Given the almost similar conditions of these two groups and the need for an exclusive commission for the STs, the bifurcation was justified. But the same treatment for the NCBC amounts to clubbing the OBCs with the SC/STs.
There are two dangers here. One, under sub-clause 5(b) of Article 338B, all three commissions are enjoined ‘to inquire into specific complaints with respect to the deprivation of rights and safeguards’ of their respective wards. It is incorrect to assume that OBCs and the SC/STs need similar safeguards. A logical corollary is that an ill-defined right is bound to kick off a new round of litigation. The aim of the Constitution is to pull the SC/STs out of their deprivation, but the new NCBC is by default designed to push OBCs into a condition similar to the SC/STs. In other words, the ‘reform’ will end up converting OBCs into SC/STs.
Also read: Why caste groups want reservations but also oppose them in India
Two, under Clause 8 of Articles 338, 338A and 338B, all three commissions are given ‘the powers of a civil court trying a suit’. The SC/STs have been systematically subjected to discrimination, intimidation and violence. Further, in several instances of ‘atrocities’ against these two groups, the accused happen to belong to the OBC community. Next time a case of atrocity is reported wherein the OBCs are the alleged perpetrators, the commissions for SC/STs will find themselves pitted against the NCBC.
Quota for EBCs
The Modi government recently introduced 10 per cent quota in educational institutions and central government jobs for EBCs through the 124th amendment. First phase of the quota system sought to help the victims of caste (the SC/STs), and the second phase focused on those who are left behind in the caste system (OBCs). The current phase is geared to benefit those who are at the top of the caste heap, the upper castes; who are not the victims of caste system but its perpetrators.
Under Article 340, the Constitution framers did envisage a mechanism to help the needy, but what they had in mind was allocation of financial resources, not setting aside quotas.
Money without motive
Every year, there are separate budgetary allocations for SC/STs. It is classified under two heads: the Scheduled Castes Sub-Plan (SCSP) and the Tribal Sub-Plan (TSP). The aim is to ensure the government allocates resources for the welfare of these groups and the percentage is in proportion to their population.
Contrary to the outline, the allocation is mostly uneven, resulting in some departments receiving large amounts of money with no or insufficient guidelines on how to spend it.
The Planning Commission, which was earlier the nodal agency for this allocation, failed to do a great job. Now, the NITI Aayog has expressed its inability to discharge this duty. As a result, a large chunk of the budgeted amount for the SC/STs is left unused.
This year, for instance, a few scientific and agricultural research institutions suddenly realised less than a month before the closure of the financial year that they needed to spend money on the welfare of SC/STs.
Also read: The golden era of caste politics is still ahead of us
What should the government do
The Narendra Modi government must revisit Part XVI of the Constitution to accord its social justice project the dignity it deserves. It should take the following steps:
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- Rephrase Article 338B through an amendment and redefine the aims and objectives of the NCBC. OBCs are truly in need of state support, but equating them with Dalits will push them artificially into the ranks of the latter. It will not serve the nation to increase the number of Dalits.
- Re-categorise OBCs and EBCs as a single group under Article 340, since the EBCs among the upper castes are ‘educationally backward classes’ and the OBCs are both ‘socially and educationally backward classes’. A way to solve the caste problem is to put in place policies that will eventually reduce the number of caste victims.
- Appoint a statutory study group to examine the working of the SC/ST (Prevention of Atrocities) Act, 1989 to assess the extent of its misuse and if that warrants remedial measures.
- Create a nodal agency to determine how the allocation under the SCSP and TSP is spent. An inability to do so can create disaffection among SC/STs who are meant to be the beneficiaries of these plans.
The author is a senior fellow at CPR. This is the twenty-fourth in a series of articles titled “Policy Challenges 2019-2024” under ThePrint-Centre for Policy Research (CPR) collaboration. A longer version of this piece is available on the CPR website at www.cprindia.org. The full policy document on a range of issues addressed in this series is available on CPR’s website.
Injustice is felt by individual mind. Even when we say a section of society feels injustice it only means majority in that section feel so. The concept of justice in our courts is mainly about individuals.
With tribal mentality people of one group want to punish individuals of other group and derive satisfaction by punishing the weak from that group for the crimes done by the strong . Abductions, tortures and killings of inocent children for punishing members of their families is often found to be for revenge . What about the injustice to the child? But punishing somebody by punishing members of his family is found a strong motive in many social crimes.
It is understandable when social groups get angry by the injustices they have to suffer due to collective behaviour of other dominant groups. Demand for reservations is justified in such cases. But it is also necessary to understand that individuals, who find they are discriminated on the basis of the implementation of that policy, will feel injustice is done to them. The race in demanding reservations by communities who have many families for many generations who enjoy all the benefits of elite class, such as Marathas, Patels etc., arises due to this feeling of injustice in the youth of these castes.
The creation of another 10 percent reservations for economically backward students from so called forward community appears to be an effort to reduce the anger at the injustice the reservation policy creates.
There has to be some principle to strike a right balance to the competitive demands from different segments of the society.
Finally, is it possible to resolve the conflict in the idea of justice when a person sees that law for social justice results in injustice to her/ him as individual?
Indian politicians and social commentators are instigating a race towards embracing “backwardness”. Extremely powerful caste groups are now categorised as backward. Marathas, Yadavs, Gounders, Ahirs etc are a typical examples. Why people want to be called “socially & educationally backward” defies common sense. The only motivating factor being “preferential benefits” which are bestowed on those declared “backward”. Most political peddlers of “backwardness” from TN, Bihar etc suffer from self-cultivated hatred of the so-called “forward castes” simply because they want to retain the tag of backwardness. The Indian media moghuls, editors and commentators have maintained studied silence and refused to play a leadership role in discouraging such obnoxious tendencies. Indeed, some media channels on the contrary have openly incited hatred against the so-called Forwards. Numerous such articles can be found in the Wire & the Print as well. Dilip Mandal is doing exactly that.
Well said! But will the left-(ill)-liberals (LL) listen? They want to keep dividing Hindus so that minorities can be united along with Hindu castes to keep other Hindus in check permanently. That has been the LL agenda for the past many decades and of the British looters before that.
You have made a strong case for social justice clauses not to have been included in the constitution. Congratulations. Many scholars of constitutional law agree with you. Peoples’ circumstances change, and delivery of welfare should be allowed to evolve over time. Basic rights do not have the same issue, and thus have a rightful place in a country’s constitution.