By: Ishan Ashish & Ifham Aqdam

INTRODUCTION

Caste has been a dominating factor in India for centuries. For centuries, people have either been dominating or been repressed based on their caste. In the pre-independence era, the lower castes were not even facilitated with basic human rights and dignity. They were forced to live in secluded areas and were not allowed to access public wells or to enter temples. One of the egregious practices of untouchability also exemplifies the extent of oppression that existed based on caste. However, post-independence, the constitution-makers of our country provided some special features in our constitution to alleviate the existing inequality between the upper and the lower caste, wherein the sole objective was to provide the state with powers to work towards the welfare of the oppressed. Provisions such as article 15 prohibits discrimination based on caste and article 16 empowers the state to reserve posts for the backward classes, if it believes that the classes have not been adequately represented. Recently, a delegation of political parties met the Prime Minister with the demand of conducting a caste-based census across the country which includes the Other Backward Classes (hereinafter ‘OBC’) as well which has not been a part of any census after the first one in 1931 in the British era and since then, India has only included the data of the Scheduled Castes (hereinafter ‘SC’) and the Scheduled Tribes (hereinafter ‘ST’). The article aims to explain the nuances of a caste-based census and its possible far-reaching implications on our society.

CASTE-BASED CENSUS AND THE OBC DILEMMA

The Union of India post-independence has published six census data i.e., from the period of 1951-2011. Each census recorded and published data on ST and SC. However, it has refrained from publishing data on other castes. A caste-based census is a demand to include a caste-wise tabulation of India’s population in the upcoming 2021 census. The demand for a caste-based census is not new, similar demand has been made previously before every census, essentially from people belonging to the OBC. It has been felt for years that only a few affluent communities in the OBC category have been reaping the benefit of 27 percent reservation that was granted to the OBC category by the Mandal Commission. The commission took into reference the last caste-based census that was held in 1931, which postulated that 52 percent of the Indian population belongs to OBC and did not fall under the category of SC and ST. Recently, the demand for the caste-based census by the OBC category stirred up again as a commission led by Justice G. Rohini submitted its draft proposal. The commission suggested dividing the 27 percent reservation category provided to OBCs into four categories. The committee gave this proposal after carefully analysing the data; the committee in 2018 noted that from 13,00,000 central jobs and admission in higher education which comes under the ambit of OBC quota over the preceding five years, 97 percent of all assignments and seats in educational institutions went to 25 percent of all sub-caste and 24.95 percent of these opportunities went to 10 OBC community and the majority of the downtrodden community under the category of OBCs have zero representation. This underscores one of the biggest reasons behind the demand for the caste-based census by the OBC community. The advocates of caste-based census believe that the sub-categorization as recommended by the Rohini commission would be futile if the caste-based census is not conducted, as a caste-based census would give an exact idea of the number of deprived sections within the OBC community. Also, the caste-based census held in 1931 included people from present-day Pakistan and Bangladesh. Its credibility has now become obsolete; hence, to alleviate the historical inequity that exists in the OBC category, the caste-based census is considered to be an essential activity.

INDIA’S ROADTO EQUALITY

Unequal cannot be treated equally in the name of establishing equality. Every caste and class need individual attention and steps for upliftment. In a country like India, where there are even more oppressed classes within the already oppressed castes, there is a need for quantifiable population data to put individual attention on the oppressed. While many question the rationality of caste-based census and the absence of OBC data, the actual need is somewhat overlooked. The caste-based census intends to facilitate the government in designing policies that specifically focus on backward castes and classes facing inequality. For this, the caste-based census helps in collecting quantifiable data identifying the oppressed. The collection of data should be done keeping in reference the education status of a particular section, representation of that particular section in society, and decision making and economic status of that particular community. The data collected by the government in this way would ensure that equality is achieved, for instance, the data collected on these grounds would help identify the “creamy layer”. The creamy layer was introduced in Indira Sawhney v. Union of India, wherein the court identified the need to exclude those who have been uplifted socially and economically from availing reservation benefits. However, it is important to note that critics have pointed out that creamy layer cannot be solely based on economic criteria, and that other factors should be included. This is where the data collection will help in recognizing a particular section of a caste or class who have been uplifted not only economically, but also socially, educationally etc. The exclusion of creamy layer from within the OBCs will also help solve the dilemma they have been facing in terms of the dominant section taking the benefits of reservation and the needy one ending up with no opportunities. Hence, the caste-based census would help in achieving equality for those who genuinely deserve it. The same has been observed in the case of Jarnail Singh v. Lachhmi Narain Gupta.

THE UNTURNED STONES

Over the decades, the Union of India has had different reasons as to how caste census would have a debilitating effect on society. The first reason is that it might exacerbate the existing social divide. It is believed that a caste-based census will reveal a negative image of the current inequality that exists based on caste, especially the OBCs, and this image will eventually increase pressure on the Union government to restructure and reshape the quota system. The demand for restructuring the quota system implies that the government would have to increase the quota percentage and breach the 50 per cent limit that the Supreme Court has set in Indira Sawhney judgment. This would leave the general caste upset and might even lead to social disharmony.

However, this is not a sound argument to not conduct a caste-based census. If the caste-based census reveals a need to increase quota percentage to promote equality, then the Union government should increase it. The introduction of a quota has already breached the 50 per cent quota limit for the “Economically Weaker Section” by the 103^rd constitutional amendment. Several states have also breached this quota; therefore there is no harm in doing so for OBC by bringing an amendment in the parliament.

Another issue that has been raised against caste-based census is operational difficulties. However, the census over the decades had already included data on SC and ST and no operational difficulties are faced, there’s no reason as to why a whole scale caste-based census will raise operational difficulties.

Furthermore, with no fixed definition of caste and numerous criteria to describe one’s status, it is not easy to decide on how to tabulate a particular caste and under which category it shall be put, for instance, the status of Jats in India. Jats, while oppressed in some states, dominate in other. In states such as Haryana and Delhi, the Jats have political representation and are educationally and economically well off; however, in States such as Bihar and Himachal Pradesh, their condition is down casted. Therefore, there is a confusion as to whether Jats shall be considered under lower castes or upper caste, which in turn makes it difficult to tabulate them under one category in caste census. Jats are merely an example. There are several other castes for which tabulating them under one category gets problematic. This issue needs to be addressed before conducting the caste-based census.

Furthermore, deciding the caste of a child from an inter-caste marriage also needs special attention to decide as merely looking at one parent will not answer the question of whether the child has faced discrimination in his life or not, or what will be the caste of the child. In the case of Mrs. Valsamma Paul v. Cochin University &Ors., the Supreme Court stated that the society in which the child was brought up decides his caste and not merely the caste of one of the parents. However, this issue needs further deliberation as to under which category the child shall be put.

CONCLUSION

Our Constitution makers envisioned a society free from the social evil of caste discrimination and thrived to achieve equality. A caste-based census will help in paving the way to achieve equality and ensure that the downtrodden section of our society will have the same status as their privileged counterparts.

(Ishan & Ifham are law undergraduates at National University of Study and Research in Law, Ranchi. The author(s) may be contacted via mail at iashish68@gmail.com and/ or ifham.aqdam21@gmail.com)

Cite as: Ishan Ashish & Ifham Aqdam, ‘Caste Based Census: Heralding a New Era of Equality’ (The RMLNLU Law Review Blog, 12 October 2021) <https://rmlnlulawreview.com/2021/10/12/caste-based-census-heralding-a-new-era-of-equality/>   date of access