Jat Quota Stir: The Real Issue Is That Of The Equality And The Equal Protection Of The Laws

About 10 railway stations are burnt, 60 trains stopped, schools, police stations burnt, a private armory looted, curfew in 6 towns in Haryana, 8 dead, police, paramilitary, and Army called in to douse the flames. This is a snapshot of what is happening in the immediate vicinity of the National Capital Territory of Delhi for the past 2 days.

Why is this happening? A lot of simplistic comment is floating around the internet, in media op-eds. Almost all of them have been blaming the Jats for indulging in this kind of violence. Some commentators frown on the entire quota system and urge the Jats to be magnanimous and to not seek the forbidden fruit. They do not realize that the quota system is a central part of the social and political system of organization known as the “Idea of India”. It is kind of odd that you would call on a large group to sit outside the main political order. In reality, these commentators do not want to be bothered with analysing issues. They wish the problem would go away.

Brief History

India provides explicit quotas to various groups of communities. The keyword is ‘group’ not ‘communities’. The largest such group is known as the OBC – Other Backward Classes. Various discrete communities /castes are included in these groups; they are maintained as “Lists”. These Lists are maintained for each state – called State Lists, and a single list at the central level is called a Central List. The idea is that for Central Government slots (jobs, college seats, scholarships, police forces and a host of other opportunities) they would use the Central list. For the State Government slots they would use the State list. You may ask, “Well that is weird, how can a caste be in one list and not be in the other?” Hold that question for a moment, you will realize even simple questions cannot elicit easy answers.

A brief recap of the genesis and current position of the Jat quota is required.

Jats are in the State lists in a number of states like Rajasthan, Haryana, Delhi, Uttar Pradesh, Bihar, Himachal Pradesh, Uttarakhand and Gujarat. But they were not in the Central list. This meant they could access only the open category central govt slots, not access the large chunk of slots reserved exclusively for those in the Central OBC List. Due to sustained pressure and rioting the UPA govt included them in the Central List in March 2014.

Unsurprisingly, the other castes already in the central list did not have a new competitor and decided to fight for inclusion of the Jats. Keep in mind that within each group (SC/ST/OBC) there is open competition among all castes in each list. Welfare associations representing the castes already in the Central List took it to the Supreme Court in a case called Ram Singh and Others vs Union of India.

A two-judge bench of the Supreme Court struck down the UPA government’s notification and thus denied entry of Jats into the Central List. As things stand now, the quest is to balance the Jat aspirations with the persuasive qualities of the judgment. Notice that I have not paid much attention to various govt bodies like NCBC and ICSSR, etc. I believe these institutions are supposed to provide a check but the core rationale behind these institutions is missing. For that you have to go a bit deeper.

Ram Singh & Others vs Union of India

The name of the case is the first thing to notice. It is Ram Singh & Others vs Union of India. This is a PIL case initiated by an umbrella group called the “OBC Reservation Raksha Samiti”; presumably the gentleman Ram Singh was one of the petitioners. The word “raksha” in Hindi means protection, here against outsiders barging in to the group. This case is, therefore, the result of the inside group resisting the outside group. This may not seem important but forms the core of the issue as we will see.

How does a caste get into the OBC list? To answer that you have to refine that question. To get into a state OBC list you can petition the state govt based on various considerations that they may or may not grant that status. This is in fact where the major part of political effort is spent behind the scenes. For the procedure to get on to the Central list you have to go back to the 90’s.

When reservation in Central Govt jobs was introduced as part of adopting the Mandal Commission recommendations the act was challenged in an epic case called “Indira Sawhney & Others vs Union of India“. The court upheld the quota and directed the govt to set up a body to examine claims of inclusion and exclusion. This body came to be known as the NCBC – National Commission for Backward Classes.

The idea is that there would be a robust tribunal that would scrutinize the entire programme and could examine such claims with great authority. It turned out to be a disaster. The NCBC has not excluded a single group from the list nor has it published any break up of utilization of each component. The entire exercise has a fatal flaw: the absence of ground rules, the lack of processes, tests, principles and the inability to state the conditions for initial entry into the list. Would the same process apply to new entrants?

On paper, the recommendation of the NCBC is supposed to be binding to the govt. But the NCBC itself is not doing its job because of lack of ground rules. See how everything is linked back to the original anomaly? The entire chain is based on an absurd premise that you can create these compact lists in a nation of thousands of claimants.

Most of us can hold our nose at this and pretend that nothing is wrong, until a dominant and organized group like the Jats decide to challenge the scheme of things. They demand answers, no answers actually and then they want them by force. If that is what it takes, the Gujjars, the Vanniars, have all shown the way.

For those parroting the “Constitutional Method” let me give you a reality check: a constitutional method requires simple ground rules (first principles) that stand alone. It never works when a court seeks to resolve conflicts between two groups. For that you need a conflict - and aren’t the Jats giving you that?

Back to the Jat issue. In 2013, the Congress govt asked the NCBC for an opinion. They said “no way” without any convincing data. The Govt decided to go ahead and announce the inclusion of Jats anyway. Now this is the state of affairs as the case lands in the lap of a two-judge bench of Justice Rohinton Nariman and Justice Ranjan Gogoi.

The judgment examines a lot of issues – particularly the powers of the NCBC, the method used by the ICSSR (the social agency which conducted a study), and some available data. They ruled against inclusion of Jats in the list on the following reasoning.

Put simply, the bench is saying, “The party is over folks, you can’t get in merely because others have got in and they may be better positioned than you.” This is akin to pulling up the ladder after a certain number of groups have acquired the “inside” status. Do we really think a large organized community like Jats (or Marathas or Kapus) will accept this line of reasoning ?

The judgment went on to say that it prefers discovery of new backward classes like the transgenders who cut across castes. This part of the judgment was celebrated in the media. I fail to see why transgenders should be given any quota. Accommodation yes, quota no.

Equal or separate processes

In my view, the following point is fatally flawed on the judgement: “Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions.” I would go a step further and state that the protests currently happening in Haryana turn on the moral unacceptability of this logic.

The judgment actually does a remarkable job summarizing the relative positions of Jats, Ahirs, Yadavs, and Kurmis. Reading the initial parts of the judgment you get the feeling like they are finally about to take the bull by the horns. Consider these factoids.

• Uttar Pradesh and Uttarakhand, in the enrolment in higher and technical education, Jats lag behind Ahirs/Yadav
• 26 (out of 90) MLAs belonging to the Jat community and 4 Members of Parliament (out of 15), (Is this a factor ?)
• Kurmis have 11.2% in professional education. Share of Jats is only.0.3% that is way below the share of Ahir and Kurmi shares (UP)
• Among the Jats, 7.5% households have at least one member who is graduate, which is lower than the Ahir and Charan (RJ)
• Jats with composite score of 1.17 are behind Gujars (1.34) and Ahirs (1.22).

On net social standing, the composite score of Jats is 17.24, which is significantly lower than the Gujars (27.14) and Ahirs (19.85).On composite economic score, score of Jats is 16.55, lower than Gujars (19.38) but higher than the Ahirs (14.86). (Delhi)“

After collating all this relative information, the judgment completely disappoints. The honorable judges dismiss the comparative data completely as of no relevance.

The question framed should not have been whether the proper procedure was followed in declaring Jats backward or whether the NCBC rejection was binding and the surrounding issues too.

The question in my view should have been framed as an Article 14 issue – as an ‘equal protection’ case-

The above sentence is the much mutilated Article 14 (equality) clause in the Indian constitution. Now I fully understand that the Indian constitution has juxtaposed “Idea of India” doctrine as an exception to the“rule of law“. Remember that the central proposition in Rule of Law is uniform application and that the central feature of Idea of India is to create separate processes for groups.

Even if this is the case, the equal protection clause must guarantee that every community has the same process to get into the exception category. I repeat that – it is not that you cannot pick out groups for separate treatment but the process used to pick out groups for such treatment must be uniform.

Now turn to the facts of the OBC lists – the “Idea of India” jurisprudence has split the population into “Inside groups” (those already included in the list) and “Outside groups” those wanting to get into the list.

The biggest problem is that those who are already inside did not go through the same process of measurement that the outsiders are being subject to. This is a gigantic anomaly that can’t be brushed aside.

This is especially important in a ‘game of spoils’ where there is no stigma to call your self anything as long as there are special and exclusive goods to be had.

Once you cast (no pun) the question as one of equal protection – it is clear that the Jats are being asked to come through a very highly fortified front door while there are others who are inside on much looser criteria through the back door.

Also the revisions to the lists are not happening even in boundary conditions like Tamil Nadu. This only means that inside group members seem to be permanently immune from scrutiny and even quantifiable relative data to outside groups now will not be accepted.

A relative test

My view is exactly 180-degrees from the judgment. The inclusion and exclusion issues must be purely relative. There cannot be any absolute measure of backwardness because remember that within the OBC group there is a pure meritocracy. The “list” ought to be the central subject of all litigation and the main job of the statutory body and the judicial review process is to preserve the integrity of the list.

All it should take for Group-A to declare the entire list invalid is to show that there is at least one Inside Group that is better off than at least one Outside Group. At the state level, things are totally absurd. I have proved that in Tamil Nadu the situation is out of control. There are no students from the open category getting through PG Medical Tamil Nadu seats in top colleges.

It is also important to not expand the domain where the quotas can be asserted. Especially dangerous is local body quota which distorts the entire democratic process itself. Another live wire is sectarian spending such as group-wise scholarships, special schools and vocational training only for some groups, special financing, and such like.

Careful of that Pandora’s box

One dismaying phenomenon in India is when the establishment tries some mad-scientist experiments with the rule of law (which evolved in the west as an outcome of centuries of bloodshed). When the experiments do not work, they drop some assumptions and open an entirely new can of worms. In the previous regime, if there were eight people who could wrap their heads around issues, you could drop down a level and open a can of worms which only four could handle. This has been going on for too long. Now no one seems to have control of the situation. Some ready-to-be-opened, new can of worms are:

Remember this was the issue in Champakam Dorairajan vs Union of India that prompted the first amendment. Stunning we want to go back to the Communal G.O in Madras Presidency after 70 years of Independence!

In any invidious law, the people always measure their impact with respect to other people. If a Jat aspirant loses a bank job, it is someone else who gets it. This is the source of the tension and only a relative test can soothe it.

Truly a crisis situation. Only next to the rot in our education laws.

This article was first published on this blog.