Ram Singh v. UOI, Jat Reservation: An Affirmative Action Approach Analysis

Authors: Jeet Sinha and Sarika Mittal.

People protesting for Jat Reservation — Image Source: The Statesman

I. Background behind Jat Reservation

Throughout the course of India’s long and eventful history, questions about caste and social equality have been central themes that have been actively debated and discussed. The Jat Reservation, which has been the subject of great debate and controversies, is a prime example of how complex the landscape of social justice and affirmative action in this country is. In recent years, this reservation policy has been at the centre of controversy, heated debate, and legal action; its primary objective is to increase access to opportunities for traditionally underserved communities.

The Jat’s are an agricultural population that is largely centred in the northern regions of Haryana, Rajasthan, and Western Uttar Pradesh. They have a long history of agrarian contributions and a rich cultural heritage. However, they have also been subjected to social discrimination and economic hardships, which is what drove them to call for reservations to be made in government employment and educational institutions.

The Mandal Commission Report from 1990 is the starting point for the investigation into the controversy surrounding the Jat Reservation. The research suggested that reservations be made for a number of different groups who are socially and economically disadvantaged, including the Jat’s. However, at that time period, the Jat people were not considered to be a part of the official Other Backward Classes (OBCs) list. Because of this, the fight for recognition and equal treatment went on for a very long time.

The Jat group sought inclusion in the OBC category in a number of states at the beginning of this century, which contributed to the growth in momentum behind the demand for a Jat reservation. They contended that because of their social and economic standing, their community needed to be helped by means of affirmative action in order to improve. A number of strategies, including demonstrations, agitation, and political lobbying, were utilised in order to accomplish this goal.

Nevertheless, in the case of Ram Singh vs. Union of India[1], the Supreme Court of India reversed a decision by the government to award reservations to members of the Jat group in nine different states (by placing them in the Central List of Backward Classes, or “Central List”). The decision has caused a tremendous amount of political commotion. As a matter of law, the case was resolved on certain, limited grounds, and it does not break any new ground in terms of constitutional issues. Instead of being judged according to constitutional standards, the issue is perhaps best categorised as one involving administrative law.

II. FACTS OF CASE

The factual framework of the case can be traced from the time to eighteen years. After receiving many petitions in 1997, the National Commission for Backward Classes (also known as the “NCBC”) conducted a study. At the conclusion of the inquiry, the NCBC recommended the inclusion of Jats in the Central List only for two districts in the state of Rajasthan.

After that, on July 19, 2011, in response to numerous representations to review this decision, the NCBC made the decision to approach the Indian Council of Social Science Research (ICSSR), asking them to conduct a survey in various states (including Uttar Pradesh, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh, and Gujarat), in order to determine the socio-economic status of Jats.

On 04.06.2013, the Prime Minister informed the Ministry of Social Justice and Empowerment that a Group of Ministers, chaired by the finance minister and including the Home Minister, was formed to discuss Jat Community demands for inclusion and keep them informed and monitor the NCBC’s rapid survey completion through the ICSSR and help the NCBC make a quick decision. After the discussion, ministers saw their two possibilities.

First, we asked the NCBC to review its sample survey decision and offer advise based on available materials. The second stated that the survey effort in Gujarat would be limited to confirmed Jat variants and the NCBC would advise based on the ICSSR survey results. On 19.12.2013, NCBC was asked to present its advice based on existing material. The cabinet also decided to refer Bihar, Uttarakhand, and Delhi cases to the NCBC.

The ICSSR expert body submitted its report in the matter, which was primarily based on the reports of the various State Commissions submitted to the State Governments regarding the inclusion of the Jat Community in the OBC list. It appears the ICSSR did not explore other books/literature/representations. ICSSR report did not offer any suggestions, merely presented facts. Since the States did not respond, the NCBC published notices for public hearings on different dates for claims and counterclaims.

After the public hearings, which seemed to receive mixed responses, the NCBC submitted its advice/opinion/report dated 26.02.2014 to the Central Government, stating that the Jat Community did not meet the Central List of OBCs criteria. It noted that being an agrarian group does not make Jats backwards. NCBC found Jats socially competent. Education was also not a problem. In the military forces, government agencies, and schools, they were sufficiently represented.

Afterwards, the Union Cabinet ruled on 02.03.2014 that the NCBC advice did not fully consider “ground realities.” Thus, the Cabinet rejected the advice and added the Jat Community to the Central List of Backward Classes for Bihar, Gujarat, Haryana, Himachal Pradesh, Delhi NCT, Bharatpur and Dholpur districts of Rajasthan, Uttar Pradesh, and Uttarakhand. The impugned notification followed on 04.03.2014.

III. IMPORTANT PROVISIONS FOR ANALYSING NCBC’S POSITION

At this juncture, it is essential to take note of the situation of the NCBC. It is a statutory entity that was set up in accordance with the National Commission for Backward Classes Act, which was passed in 1993. It includes provisions for the Constitution of the National Commission for Backward Classes (NCBC), as well as its powers and functions, as well as other topics associated with it. The essential characteristics of the Act that need to be drawn particular attention to are summarised in the following points:

Section 3 covers NCBC constitution. The NCBC will consist of the following individuals selected by the Central Government.

(a) Chairperson: Judge of Supreme Court or High Court;

(b) Social scientist;

(d) Member-Secretary: officer of Central Government in the rank of Secretary to the Government of India.

In accordance with the provisions of Section 8 of the Act, the Commission is granted the authority to establish its own procedure.
Section 9 elaborates Commission Functions:

(1) The Commission reviews petitions for backward class inclusion, addresses concerns of over- or under-inclusion, and provides appropriate advice to the Central Government.

(2) The commission’s advice usually binds the Central Government.

The powers that are granted to the Commission in order for it to carry out its responsibilities as outlined in Section 9(1) of the Act are listed in Section 10.
Section 11 states Central Government Revision of List Periodically:

(1) The Central Government may revise lists every ten years after the Act goes into effect, either to remove obsolete classes or add new ones.

(2) The Commission must be consulted before any revision under sub-section (1) by the Central Government.

Thus, based solely on the provisions mentioned above, it can be deduced that the Act does not contain any explicit provision granting the Central Government the authority to disregard the advice or recommendation of the Commission. This closely followed the Supreme Court’s decision in Indra Sawhney vs Union of India, in which Justice Jeevan Reddy stated that “its advice/opinion should ordinarily be binding upon the Government.” Reddy had commented on the necessity of such a specialized body. Where the Government disagrees with a suggestion, it is obligated to provide a clear explanation for its stance.

Furthermore, it is indisputable that the opinions articulated by the NCBC during the consultation obligated by Section 11 would traditionally hold binding force, even if the exercise conducted by the Central Government is one specified in Section 11 of the Act.

IV. ISSUES

Whether the recommendation of NCBC is binding on the Central Government?
Whether the report prepared by NCBC analysing all the state commission and ICSSR report correct and valid?
Whether the inclusion in Art. 16(4) needs to be shifted away from the caste basis?

V. ARGUMENTS BY PETITIONERS

The major argument proposed by the petitioner is that there is presence of legal malice as the Central government denied to follow the recommendations provided by the NCBC. As per sec. 9(2) of NCBC Act, 1993, ordinarily the advice of commission shall be binding and if it is denied it should be supplemented with reasons.

The petitioners cited Barium Chemical Ltd. v. Company Law Board;[2] Rohtas Industries Ltd. v. S.D. Agarwal and Ors.;[3] Shri Sitaram Sugar Co. Ltd. & Anr. V. UOI;[4] and Gazi Saduddin v. State of Maharashtra and Anr.[5] In all these cases it was said that the satisfaction of central government can be challenged on two grounds. First is legal fragility and second is ex facie unreasonableness.

Further, they argued that there is no material data to support the claim that Jat reservation can be provided within Article 16(4) of the Constitution.[6] The reservation provided under Art. 16(4) is only on the ground of social backwardness and it is different from the backwardness provided in Art. 15(4) of the Constitution.[7] In Art. 15(4), the backwardness is social and education backwardness whereas for 16(4) there is only social backwardness that needs to be taken into account.

Jat population according to data of various state committees are very well off and they do not have that social backwardness as mentioned in Art. 16(4). The data of various state shows that there is status is as equal as Kshatriyas in certain states.

VI. ARGEMENTS BY RESPONDENT

The respondent contended that the NCBC did not considered the data properly provided by the state commission and its own expert body entrusted with the responsibility of carrying out literature survey i.e., ICSSR. The data provided by various state shows that the Jat population was lacking behind in 9 states in some or other way.

The report provided to NCBC contains the grounds and reason, but it was not a quality research data that can trusted upon, it was contended by NCBC. As the data is old and with the development of society, this old data cannot be accepted to suggest Central government to propose the Jat reservation. Respondents stated that NCBC in present of material data have formed an arbitrary decision by rejecting the available data.

VII. JUDGMENT

The hon’ble Supreme Court consisting of bench of Justice Ranjan Gogoi and Justice R.F. Nariman stated that the recommendation provided by the NCBC in no manner it can be said that it is made without any materials or unsupported by reasons. NCBC while making decisions has the right to filter data and to verify the application of data in the present society. The society is not stagnant, it changes and therefore, there is necessity to change with this change.

The court further contemplated the fact that under Art. 16(4) the backwardness is social backwardness citing the case of Indra Sawhney v. UOI. The ICSSR has observed that Jat in Haryana are a land-owning community and while their share in Class I & II Government services is closer to their population, they lag both in school and higher educational enrolment.

In NCT of Delhi, the committee found that Jat is behind Gujars in Social and educational standing. In most of the state it was observed that the educational backwardness is considered as a reason to forward reservation under Art. 16(4). Further, court emphasised on the fact that in Haryana, all the report submitted is at least decade old, the necessary data on which the exercise has to be made has to be contemporaneous.

Only inclusion is not the right thing to do, as during the Mandal Commission report, it was found out that 52% population consists of OBC population and over the last two decades only inclusion and hardly any exclusion is done from the OBC lists. If we consider the development of past two decades, it would be correct to say that decision taken by NCBC was valid and reasonable.

Two precedent were cited that conflated the difference between Article 15(4) and 16(4) that is of M.R. Balaji v. State of Mysore and Janki Prasad v. State of Jammu and Kashmir. In Indra Sawhney Judgment, it was stated that the backwardness contemplated in Art. 16(4) is mainly social. As Indra Sawhney was a 9-bench judge it would be binding on numerically smaller benches. Further, court reiterated that caste is one of the ground for determination of social backwardness but it is not the sole factor. The affirmative action should reach to the most deserving group and on every ground of backwardness such as cultural, economic, educational or even political.

The court stated that with evolution in society new group emerges which becomes backward and need affirmative action. One such example was that of National Legal Service Authority v. UOI, in which the recognition of third gender as socially and educationally backward class of citizens entitled to affirmative action of State. Court stated that it is path finder, if not path breaker.

Moreover, the court stated that it is the duty of the state to continuously find the new emerging group that are suppressed to forward affirmative action. If the state is only giving affirmative action based on historical injustice, it would certainly result in under-protection of the most deserving backward class of citizens.

Therefore, the reservation should not be given to the Jat community as they are not a backward class as specified under Art. 16(4). The court stated that the determination of backward class cannot be mathematical formulae evolved by taking into account social, economic and educational indication. It cannot be relative also, the gate of the reservation should permit entry of the most distressed.

VIII. ANALYSIS ON JAT RESERVATION CASE

The judgment revolves around the Jat community of various states. They self-proclaim themselves to be subservient to the most groups in their respective states. They are included by the Central government in the Centre OBC list to forward affirmative action. This was challenged on the ground that the Centre did not obey the recommendations of NCBC which is the commission for inquiry of backwardness setup following the judgment of Indra Sawhney read with Article 340.

Now, we will consider the two approaches of forwarding affirmative actions and whether the Jat community fits on those grounds or not.

1. Approaches of Affirmative Action

There are two approaches associated with affirmative action. The first approach is looking for backward approach here we look the historical suppression. The second approach is the progressive approach or looking forward, here we provided inclusion to newly evolved classes that are backward and unrepresented in society.

If we look at the scenario of Jat reservation. It is evident from the perusal of fact that Jat is not historically suppressed rather they are considered to be close to Kshatriya and they are said to be descendant of Indo-Arya tribe, connected to the Vedic civilization (4500 BC- 2500 BC) that existed along the Saraswati River. Therefore, on the first approach of forwarding affirmative action there is no reason to put forward affirmative action for them.

Second approach is more inclusive approach as it consider the present scenario of a community in society. This approach takes it position from addition of fairness in concept of equality. The real equality can be ensured only when fairness is present. Therefore, this approach imposes a burden on the state to identify the groups that are weaker in society and in need of state affirmative action to end their struggle.

Jat community cannot be provided reservation from the second approach also as their social status in the society is very high. They are landowning community that are mostly associated in agriculture. There backwardness in education or economic field cannot be taken as a ground to forward affirmative action.

The judgment also signifies this stance that Jat community is well developed community and they cannot be compared to or related to other community to forward affirmative action. There might be backwardness in certain areas but the benefits of the reservation to be enjoyed by the most suppressed class. (Para 54)

Therefore, the court took the right approach of dismissing the reservation granted to Jat as they are not fulfilling the approaches that are taken to forward affirmative action. Now, we will analyse the Rawl’s idea of distributive justice as it is discussed in para 54 of the judgment.

2. Rawls idea of justice

John Rawls in his book ‘theory of justice’ given the difference principle. This principle is used to forward the affirmative action. As this principle reinforces the idea that distribution of resources should be in such a manner that the least advantageous group should get the maximum benefit.

Now, if we look at the Jat community, they are not a least advantaged group. They are in par with most community in their respective states. They hold the decent amount of land in the states. Therefore, they cannot be forwarded with the affirmative action.

3. Analysis on role of NCBC

In this case the Supreme Court have highlighted the role of NCBC. There recommendation carry a lot of value and cannot be disregarded without giving due consideration to it. In this case, the Central government ignoring the report of NCBC given the reservation to Jats which was found by the count to be arbitrary.

4. The importance of precedence

The Hon’ble Supreme Court have cited various judgment to signify the difference between the backwardness provided under Art. 15(4) and 16(4). The court have stated that they are not same relying on the judgment of Indra Sawhney. It can be said that the precedent laid down in Indra Sawhney is an essential guiding principle for the affirmative action policies in India.

5. Way forward for affirmative action

As also mentioned in this case, that the backwardness cannot be absolute and can carry forward perpetually. It should have a certain end. So that other people who are emerging as new backwards can take advantages of affirmative action. Further, the definition of backwardness cannot be constant, it needs to be changed with changing needs of the society. Court also cited the case of NALSA where third gender was considered, for the first time, for affirmative action.

Similarly, the benchmark of deciding the backwardness should not just reflect the face of one part of society but it should include the emerging backwardness and remove the one who had already taken the advantage of affirmative action. As providing affirmative action for eternity can cause significant threat to the equality enshrined under the Article 14 of the Constitution. Ultimately, it can be assumed that there is no development through affirmative action, if the condition of people is not changing, who are subject to affirmative action.

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