View: Each state making OBC list will mean sub-castes jostling for quotas, a recipe for turmoil

Both Houses of Parliament have unanimously passed the Constitution (127th Amendment) Bill, 2021 ceding to states the right to prepare their respective list(s) of backward classes, for granting affirmative action benefits. One may be tempted to applaud the passage of the Bill as a triumph of federalism. That the Bill was passed by the most divisive and disruptive session of Parliament since 2014 is indicative of how electorally salient the issue of quotas for the backward communities has become.The Bill seeks to rectify a couple of ‘mistakes’ in the Article 338B – inserted by the Constitution (102nd Amendment) Act, 2018 – that created the National Commission for Backward Classes (NCBC) as a constitutional entity. One, the Bill enables states and UTs to prepare their respective lists of socially and educationally backward classes. Two, they can do so without consulting NCBC.Interestingly, whereas Parliament passed the 2018 Act in three days, it took just two days to pass the current Bill. The enterprise is destined to undergo even more amendments in future because political parties have no interest in investing their time and energy to come to grips with this complex issue.

How did mistakes creep into a constitutional act? Have its underlying assumptions changed so drastically in three years? Has the judiciary done its usual mischief by nullifying the act? None of the above. The Bill is necessitated as Parliament did a lazy job of copying Article 338 that deals with the Scheduled Castes (SCs) to create Article 338B for the Other Backward Classes (OBCs).There was no need to draft anything; find SCs in the draft and replace with OBCs. One could ignore the matter if it was merely a case of incompetent law-making. It did far worse by merging OBCs with SC/STs.In a way, the new legislation will be a victory for the Yogi Adityanath government in Uttar Pradesh which sought in 2019 to ‘upgrade’ 17 OBCs to the status of SCs. Now there is no need to undertake such an exercise. A state government can choose any group as an OBC and convince the latter that it is entitled to the same protection and benefits that SC/STs enjoy under the Constitution. This also fulfils the demands by many groups (such as Gujjars in Rajasthan) to be included in STs.The only missing link is the caste census whose time appears to have come. A new round of the Socio-Economic Caste Census (SECC) may not serve the purposes of OBC quotas. Because the criterion to select OBCs no longer includes economic backwardness but confines to social and educational backwardness. Therefore, the decennial census may have to include caste after a gap of nine decades.The consequences of this reckless social engineering will be dreadful. It is no longer the usual caste politics. Hundreds of sub-castes will scramble for quotas, leading to socio-political turmoil. Any dominant group can demand and gain quotas. Till now the selection of OBCs has been a complex exercise carried out by the constitutionally mandated commissions. Hereafter, it will be a political exercise; the strongest and the loudest group can become an OBC.This also explains the demand for proportional quotas. If a sub-caste accounts for 6% of a state’s population, that ought to be the quantum of its share. However, proportional quota is a more honourable idea than the current practice of declaring a dominant group as backward to grant it quota. It would be an insult to the memory of Chhatrapati Shivaji if his progeny must be called backward to grant them quota.The country has reached this stage after sleep-walking away from Article 340 for seven decades. Having granted special protections and benefits such as quotas to the SC/STs, the Constituent Assembly adopted Article 340 to the effect that as there could be other “socially and educationally backward classes”, the President must appoint a commission to investigate “the difficulties under which they labour and to make recommendations as to the steps that should be taken … to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose”.It is difficult to interpret the word or the spirit of Article 340 as stipulating quotas to the yet-to-be identified groups. But that’s precisely what the first Backward Classes Commission (the Kaka Kalelkar Commission) did in 1956 by going beyond its terms of reference. The Mandal Commission followed its suit in the 1970s, and the judiciary upheld the reading that Article 340 grants quotas to OBCs.However, all efforts at the Centre and in states to identify OBCs have till now been bound by this article, which meant prima facie an apolitical and elaborate process including measuring a group’s backwardness. Hereafter, electoral compulsions will determine who’s backward.The current Bill and its 2018 parent act will not solve anything, and in fact they have already opened a can of worms. Consider this: It is just a matter of time for sub-castes to demand sub-categorisation, quota within quota. Moreover, if OBCs are equated with SC/STs, how long will it take to witness demands for OBC quotas in state assemblies and in the Lok Sabha?As we slip into a Kafkaesque world, let’s at least rechristen the categories. It is anachronistic to call many OBCs backward. Let’s at least call them, say Listed Communities, a la the Scheduled Communities.(The writer is Senior Fellow, Centre for Policy Research. Views are personal)