The Grounds Of Affirmative Action

The rationale of the Jat reservation judgment

The judgment of the Supreme Court of India on the inclusion of Jats in the Central OBC list  (Ram Singh & Ors vs Union of India) is a significant one, not because of the questions it answers but because it raises often-ignored questions over the existing scheme. The judgment will inject a much-needed purpose to the National Commission for Backward Classes (NCBC) and will provide a glimpse into the future of the affirmative action policy in India.

Multiple narratives have emerged from the mainstream media with respect to this judgement. As is often the case in legal reporting, the idea to sensationalise the issue took priority over all else. Major dailies reported that Supreme Court’s reason behind the exclusion of Jats was due to the enormous political clout that they wield. This reportage created a false narrative which implied that it is Supreme Court’s prerogative to decide which caste may get the benefit of reservations and which doesn’t.

On the contrary, a dispassionate analysis of the law and the judgment would paint a completely different picture. The prerogative of the Court, as an adjudicatory body, was to analyse the procedure adopted and the reasons put forth by the Executive to arrive at the decision. The decision of inclusion or exclusion never vested with Supreme Court and nor did the Court delve into the political ramifications of caste politics in India.

Indra Sawhney case – provisions and precedents

To understand the foundations of the decision of the Supreme Court, a cursory reading of the provisions dealing with issue of OBC reservation and knowledge about the history of the Mandal Commission and the Indira Sawhney case (a nine-judge bench judgment binding on present bench) is necessary.

The system of reservations in India rests on the “lists” made by the Governments within a federal structure. The “lists” mean the lists of those castes/jatis, which in the opinion of the Government are socially backward and not represented well in the services and other sectors.

As per the legally enforceable fundamental rights, Article 15 and 16 of the Constitution prohibit discrimination on ground of religion, race, caste, sex or place of birth and provide for equality of opportunity in matters of public employment. The caveat to this is the exception which provides that the State can make special provisions for the advancement of any socially and educationally backward classes of citizens. The regulatory in nature but indirectly enforceable directive principles in Article 38 and 46, place a duty on the State to secure a social order by eliminating inequalities and promoting the educational and economic interests of the weaker sections of the population.

As per Article 340, a commission is to be established for investigating the conditions of the socially and educationally backward classes and making recommendations. In Indra Sawhney & Ors. Vs. Union of India & Ors, which predates the NCBC, the Supreme Court had contemplated the establishment of a commission and it powers and duties.

The apex court had said that if any new class/group is proposed to be included among the other backward classes, the matter must be referred to the Commission and  action should be taken on the basis of its recommendation. The NCBC has evolved a set of guidelines, criteria, formats and parameters against which all claims for inclusion were considered. These parameters were evolved on the basis of the Mandal Commission Report and the judgment in Indra Sawhney case. 11 indicators under three broad heads i.e. social, economic and educational were identified. The relative weightage to each of the parameters under these heads is in the proportion of 3:2:1.

What weightage the advice/recommendation tendered by the NCBC should receive in the decision of the Union Government was crucial in the determinations that the Supreme Court made in the case and formed the legal and technical basis for the judgment.

In the Indra Sawhney case, the Court emphatically laid down that the advice/opinion of the Commission must ordinarily be binding upon the Government and that the recommendations can be overruled/ignored only for strong and compelling reasons expected to be available in writing. It was on the basis of the jurisprudence evolved from the Indra Sawhney case that the National Commission for Backward Classes Act was enacted in 1993.

To provide statutory legitimacy to the precedent in Indra Sawhney, the Act states that the Commission shall examine requests for inclusion and tender advice to the central government, which shall ordinarily be binding upon it. To accentuate the authority of the Commission further, the act has no specific provision empowering the central government to override the recommendation.

Events surrounding the case

The NCBC received numerous applications from various quarters for the inclusion of Jats in the Central List of Backward Classes and owing to the sustained pressure, the Commission decided to study their claims. It submitted a report in 1997 which recommended the inclusion in the Central List of only the Jats of Rajasthan, that too from two particular districts. The report, in typical sarkari style, was kept in abeyance for more than a decade.

After further political pressure in the matter and the enactment of an amendment to the NCBC Act providing for review of the advice tendered on issues, the Commission decided that consideration of all such representations be deferred till the finalisation of the Socio-Economic Caste Census (SCC) 2011. Thereafter, the NCBC approached the Indian Council of Social Science Research (ICSSR) to conduct a full-fledged survey in the States. The expert body constituted by the ICSSR submitted its report, which was primarily, based on the reports of the various State Commissions.

– The Bihar State Commission had concluded that the Jat community is not represented at all in the Group I and Group II jobs in the Government, are educationally backward compared to other communities and are primarily engaged in agriculture and allied activities.

– The Delhi State Commission concluded that Jats lag behind Gujjars and Ahirs in social and educational standing but are ahead of Ahirs in economic standing but lag behind Gujjars.

– The Haryana Commission concluded that Jats are a land-owning community whose share in class I & II government service is close to their population share but they lag behind in both school and higher education enrolment.

– The Himachal Pradesh Commission concluded that the dropout rate of children beyond primary level is high and the incidence of representation of Jats in the state services in comparison to general average is very low.

– The Rajasthan Commission concluded that Jats are better off with respect to ownership of land but somewhat lag behind with respect to literacy rate, enrolment in graduation and representation in government service.

– The Uttar Pradesh and Uttarakhand Commission concluded Jats are better off with respect to ownership of land and representation in government service but somewhat lag behind with respect to literacy rate and enrolment in graduation.

– Gujarat and Madhya Pradesh State Commission failed to provide an opinion on the issue.

What is pertinent to note is the lack of consistency in the parameters of adjudicating the backward status of the community, the lack of hardcore quantitative information gathering in various sectors, the appalling technique of judging castes in relation to each other and the lack of economic and political parameters in the studies. Most of these issues were tackled in the final report of the NCBC and further observed by the Supreme Court.

Interestingly, the NCBC even conducted public hearings on the claims and counter-claims on the issues, which received a mixed response. Finally, the NCBC submitted its advice in 2014 to the Central Government stating that the Jat Community had not fulfilled the criteria for inclusion in the Central List of OBCs. The NCBC found that the Jats were not socially or educationally backward and were adequately represented in public employment i.e. in armed forces, government services and educational institutions.

The UPA Cabinet held a meeting and decided that the advice tendered by the NCBC did not adequately take into account the ‘ground realities’ and resolved to include the Jat community in the Central List of Backward Classes. This decision was wholly based on extraneous considerations and is actuated by political motives to gain electoral advantages.

One of fundamental principle in administrative-law jurisprudence is of Speaking Order, which, simply put, is an order that speaks for itself. It inculcates a procedure where any order by any authority must stand the test of legality, fairness and reason at all the higher appellate forums. Further an order should contain all the details of the issue, clear findings and must be a reasoned order. Even the courts are required to give speaking orders and the lack of it becomes a valid ground for appeal. Considering the UPA Government had an uncanny knack of disremembering elementary administrative-law principles during the Coal and the Spectrum auctions, the decision to overturn the advice of the NCBC without a speaking/reasoned order was hardly surprising.

Tussle over the Operative Part of the judgment

Lawyers are generally acquainted with the difference between a case’s holding, also called its ratio decidendi, and its dicta. The ratio decidendi is that part of a court’s judgment that judges deciding future cases are required to obey, and the dicta are the statements from the court that do not have to be followed. There are two types of dicta, however: judicial dicta and obiter dicta. The former carries greater authority and the latter are “by the way” statements. The confusion kicks in when there is non-judicial reading of the pronouncement without understanding the core reasons for which the Court has arrived at its decision.

The ratio decidendi in the case was that the Government could not have arrived at a decision of ignoring the advice of the Commission without recording cogent and detailed reason for the same. This would be based on the plain reading of the NCBC Act and the jurisprudence of the precedent in Indira Sawhney. In which case, the decision at which the Supreme Court arrived would be ingenuous and sincere as the mere possibility of a different opinion, without reason recorded in writing, would not detract from the binding nature of the advice tendered by the NCBC.

It is the judicial dicta in the case which has caught most attention and understandably so. Before analyzing the ramification of such dicta, it is necessary to state that such observations are not binding and their operation is largely curtailed by the Indira Sawhney case. Taking a dig at the highly circumspect and overly motivated ‘science’ of statistics adopted by the State Commissions, the Court observed that outdated statistics cannot provide accurate parameters for measuring backwardness referring to it as retrograde governance. The Bench further noted that a governmental affirmation of such negative governance is the basic fallacy inherent in the governmental decision.

In an unprecedented move, the Court elaborated on the concept of ‘backwardness’ stating that it is a manifestation caused by the presence of several independent circumstances, which may be social, cultural, economic, educational or even political. It further stated that an affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which has been constitutionally provided. The reference to transgenders as a backward class in a previous judgment provided the opportunity to the Court to expand its horizons in the understanding of ‘backwardness’.

The Court explained that any social class, as an identifiable section of society having certain defining characteristics, may be classified as ‘backward’. The intelligible differentia of the classification may be a caste, jaati, or even a disability or a gender.

To provide its opinion on the future of the OBC Scheme, the Court provided that backwardness must not be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. The Court observed that the attention of the State must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice.

In a welcome departure from most observations, the Court opined that the determination of backwardness must also cease to be relative and possible wrong inclusions (a point which needs an altogether new debate) cannot be the basis for further inclusions.

Fascinatingly, the Court held that although caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, it has been routinely discouraging the identification of a group as backward solely on the basis of caste.

This represents a landmark quote with the apex court citing its unease at the whole basis of affirmative action in India and the underlying emphasis on economic, educational and other social factors. The latter part of the judgment represents a classic example of a judicial dicta, with the Court recording its observations but failing to postulate structures and muscle to implement it.

If examined in the backdrop of moves by the present Government in trying to shift the focus to economic empowerment and development of entrepreneurial skills in the backward classes through a string of schemes, this judgment may represent a beginning of a new beginning in the history of affirmative action in India. Nevertheless, it still is a welcome move and may lay the foundations of another Constitutional Bench judgment on the matter setting the record straight.