The Narendra Modi government will not count castes in India, and now, it will not allow state governments to do it either.
Without counting castes, there can be no empirical data to carry out affirmative action and reservation policies. The courts will ask for data. Thus, reservation policies will always face legal hurdles. No data means arbitrariness on the part of policymaking, and as we have seen in the case of Jat, Patidar, Gurjar, and Kapu quota agitations, it will always lead to disruptions in public life. No data also means that the government will never be able to target the quota policies to benefit the extremely backward.
On 3 August, the Union government said in Parliament that it “has no plans to bring the census into the concurrent list and allow state governments to conduct the census”. This reply was given by Minister of State for Home Affairs Nityanand Rai when MP D. Ravikumar from DMK asked whether or not the government had any proposal to bring the census into the concurrent list from the Union list and allow state governments to conduct it. Both Parliament and state assemblies can make laws on subjects that are on the concurrent list.
This is a perfect Catch-22 situation. State governments need caste data to implement affirmative action policies and also to safeguard reservations in jobs, education, and local bodies. They are asking the Union government to release the data of the Socio-Economic and Caste Census (SECC) 2011. The courts have, time and again, asked for such empirical data.
Recently, the Supreme Court passed an order that made it mandatory to have empirical proof of backwardness and underrepresentation (Triple Test) for implementing OBC reservation in local bodies. Some high courts have struck down the quota decisions of state governments because the latter failed to establish that there was any “inadequacy” in OBC representation in jobs.
This prompted some state governments to conduct ‘caste census’ at the state level. Karnataka has already conducted such a census, whereas the Chhattisgarh caste census is still going on. Maharashtra State Commission for Backward Classes (MSCBC) has conducted a Socio-Economic and Caste Census. Nitish Kumar has declared that Bihar will conduct a caste-based survey to determine the socio-economic status of all communities.
But the recent announcement by the Union government in Parliament has made all such exercises futile.
The Union government is not ready to amend the Constitution to allow states to conduct a census. Earlier, it said that it had no plan to release the caste data of the SECC-2011. It has also said that caste will not be enumerated in the next census.
With the government saying that the census will remain on the Union list, the legality and constitutionality of the state enumerations will remain precarious and doubtful. It can be challenged by the opponents of the quota policy on the ground that the state government has transgressed its power and done something that only the Union government can.
Also read: You are an OBC if you score 11/22 — We traced nearly 100 years of caste in Indian census
Constitution, law and census
According to the constitutional division of powers, as mentioned in the Seventh Schedule, census is kept in the Union list. Other notable entries in the lists are defence, foreign affairs, and war and peace. Until this list is amended, no state can conduct a census. Whatever exercise of enumeration the states are doing then, at best, can be termed as a survey or data-collection drive.
This is the reason why DMK MP and senior advocate P. Wilson recently wrote a letter to Prime Minister Narendra Modi, demanding that census should be moved from the Union list to the concurrent list. He argued, “If census is moved to the concurrent list, it would enable states to conduct its own census and would aid the state in maintaining an accurate list of backward classes contemplated under Article 342-A(3) and have empirical data of OBC communities local body-wise.”
I have written a letter to Hon’ble PM @narendramodi seeking to shift Census from Union List to Concurrent List by bringing Constitutional Amendment and to break deadlock in implementation of #OBCreservation in Local bodies for last 30years & remedy the injustice done to #OBC 's. pic.twitter.com/t5gGPNRs3T
— P. Wilson (@PWilsonDMK) July 3, 2022
He further wrote that such empirical data will equip the states to give reservations based on facts, and there will be no legal challenge to such decisions.
As census is in the Union list, the relevant Act, at this moment, is also a Central Act. Section 3 of The Census of India Act, 1948 clearly mentions that the Union government will conduct the census. It says, “The Central government may…declare its intention of taking a census in the whole or any part of the territories.” It’s a natural corollary of the Constitutional-legal framework where the Census Commissioner is also appointed by the Union government.
This Act gives various powers to the Census Commissioner to conduct operations — they can give orders to government officials and teachers to work for them. Such orders are mandatory in nature. It also provides legal protection to the enumerators. The Union government-deputed enumerators may enter any premises and inspect them and any vehicle or vessel.
According to this Act, intentionally asking any offensive or improper question or making any false return is an offence, and such acts are punishable by law. If any person intentionally gives a false answer to, or refuses to answer, any question asked of him by a census officer, they can be tried in a court of law.
Without these legal protections and frameworks provided by the Census Act, it will not be easy to conduct a census. The SECC-2011 faced similar problems because it was not done under the Census Act and the Census Commissioner was not entrusted to do the same. Thus, SECC-2011 lacked the authority and associated legal protections. This was one of the reasons why it failed.
Also read: No Census 2021 in 2022 either — govt ‘puts exercise on hold, timeframe not yet decided’
Problems ahead
With the Modi government stalling any effort to collect caste data by the states and, at the same time, not going ahead with the caste census at the central level, we are heading towards a scenario where the governments and the courts will find problems in settling disputes and implementing policies.
I foresee these problems in the near future.
The constitutionality of the 103rd Amendment Act 2019 for the EWS (Economically Weaker Sections) quota has been challenged in the Supreme Court. Without caste data, it will not be easy for the government to prove the backwardness or underrepresentation of the poor people from ‘upper caste’ groups. This case will not be settled in the near future.
The Justice Rohini Commission has been tasked to find out how the different castes in the OBC lists are getting reservation benefits. It has the mandate to suggest bifurcation of trifurcation of the OBC quota at the Union level. This commission is facing a data hurdle. Despite getting more than a dozen extensions, it has failed to give its report.
Some states such as Madhya Pradesh and Chhattisgarh have increased the OBC quota from 14 per cent to 27 per cent. These decisions are facing legal scrutiny, and the government needs caste data to argue its stand.
Several states faced quota-related violent agitation, especially regarding the inclusion of some other caste in the OBC list. The governments need caste data to either accept or refuse such demands.
And lastly, caste data can have several usages, especially in developmental projects. The government will not be able to fine-tune its social justice policies without census data.
In such a scenario, the Union government should rethink its decisions of keeping the census operations in its own hand and not allowing the states to conduct them.
Dilip Mandal is the former managing editor of India Today Hindi Magazine and has authored books on media and sociology. Views are personal.
(Edited by Humra Laeeq)