A Legal-Economic Understanding of the Basis of the Reservation Claims made by the Jat Community
Dhruv Shekhar is a third year law student at Jindal Global Law School, Sonepat, having studied history previously at St. Stephens College.
M.N. Srinivas, the pioneer of Indian anthropology in the 1950s, defined a dominant caste[i] as one which is numerically eminent, while simultaneously wielding social, political and economic power. Prima facie, the Jat community seems to fit the moniker of a de facto dominant caste. However, the yearlong narrative about their claims for reservation is indicative of a deep malaise in the Indian economy[ii]. To begin with, a simple reason for their demand for reservation could be unemployment. The aspirations of the Jat community have not been adequately fulfilled, with a void in terms of the employment opportunities being generated for their caste members. Hence, their caste has become an excuse for them to wreak havoc for reservations.
The absence of quality education that would equip them adequately to enter the field of services is another reason to use violence as a means to assert their claim for reservations[iii]. Since a substantial portion fail to get admissions in government educational institutions[iv], they find no other option but to opt for an exorbitant ‘substandard’ private education thus leading them to run into heavy debts[v]. Subsequently, their education fails to provide them the desired returns they hope for. So, they fall back upon unskilled jobs to rid themselves of the weight of their dues. This is a plight shared by many highly-qualified individuals and not specific to the Jats alone[vi]. This myopic picture provides a basis for the idea that there are structural changes that need to be brought about in the economy, to generate new employment opportunities in our country[vii].
A statistical account from the 2011-12 report by the Labor Bureau[viii] was indicative of the fact that the average daily earning of a worker in the private sector (daily wage earnings – Rs. 249 and Rs. 388 of the employees in entirety) was significantly lower than those of their public sector (Rs. 679 and Rs. 945) counterparts. Status quo in this aspect is unlikely to change, particularly in light of the Seventh Pay Commission[ix] which recommended an increase in the minimum monthly wage to Rs. 18,000, from the erstwhile amount of Rs.7000.
In light of this, it is understandable that since the lower gradient jobs in the private sector are poorly paid, the exasperated and unemployed individuals have no other option but to turn to the public sector for jobs. But that too is a problem, as evidenced by recent governmental reports, which ascertained that on a 3 year scale, the number of jobs created in the calendar year of 2015 were much lesser (1.35 lakh jobs in 2015 as opposed to 4.19 lakh in 2013) than previous years[x]. Another aspect is that these dominant castes do not see their future in agriculture because of the attraction exerted by the city and because of the crisis in village India[xi]. The 2014-15 Economic Survey[xii] showed that the wages of rural India were increasing at a mere 3.6 per cent (when the inflation rate was above 5 per cent), against 20 per cent in 2011.
A key point to note here is that entities with land close to big cities tend to make immense profits (by sales to developers or by becoming lessors themselves), as has been seen in the two decadal growth of Gurgaon/Gurugram, and more recently Sonepat[xiii]. However, the problem is encountered by the migrant villagers who leave for the cities in hopes of a better income, ergo a better and sustainable lifestyle[xiv]. But more often than not, they are left disappointed owing to the absence of receiving quality education as opposed to their urban middle class counterparts[xv].
Christophe Jaffrelot[xvi] very sumptuously delivers the statistics behind the claim of fewer government jobs in the present day. He points out that India with its population of 893 million, possessed close to 19.5 million jobs in the public sector alone. However, with a current population of over 1 billion, the public-sector jobs have shrunk to 17.6 million jobs. Furthermore, his research indicates that in states that have aggressively implemented the liberalization policy, government jobs have almost disappeared. For instance, the government share of employment in the state of Gujarat stands 1.18 per cent whereas it is 15.78 per cent in Kerala[xvii].
Therefore, the question that posits itself is that despite abundant evidence of the need for requisite changes to been made (be it short term or long term), why has the government’s stance been so stoic?
For one, by acceding to the demands of the dominant classes to be counted as OBCs, the government risks alienating the incumbent castes already in the OBC lists. The existing OBC castes, no less politically influential, fear that the dominant castes may corner the quotas if included in the list since the latter are richer and better educated[xviii]. Moreover, the judiciary will not allow quotas to exceed the 50% limit as imposed by the Supreme Court on reservation[xix].
Attempts have been made by various chief ministers across the country to deal with their respective constituent communities’ demands for reservations by bringing out various legislations to deal with the same, pending the Supreme Court’s approval[xx]. But legislating such bills sends signals to the dominant castes that the government is trying to reframe the reservation policy and reform it. The BJP government of Haryana may well follow the same strategy since it has decided to bring a bill to grant OBC status to Jats in the next session of the State Assembly[xxi].
A decisive change can be brought about by changing the orientation of the reservation scheme to an economic basis, through an act which would benefit communities of the ilk of the Jats, Marathas and Patels. However, a simplistic classification merely on an economic standing is not conclusive. Instead, a detailed data basis which recognizes the heterogeneity of the Jat community and actually serves as an arm of affirmative action to those who are in need of said reservation is absolutely essential[xxii]. An automatic increase should also be brought about in the scope of job creation in the public sector, which has slowed down under the current government, as previously indicated[xxiii].
The prospect of introducing a quota for the Jat community will work if two crucial changes take place, namely increasing the number of jobs in the public sector (an aspect which the government is working on at present[xxiv]) and simultaneously providing for improved wages in the private sector[xxv].
With the much-debated amendments in the Minimum Wages Act, 1948 [xxvi], there appears to be cause for optimism. The government seems set to improve the wages of agricultural laborers[xxvii] as well as attempting to have a legally bound national minimum wage across the board. However, how much of the proposed bills are incorporated as an act remains to be seen. This must be seen in the light of the fact that India’s ascension as a hot bed for foreign investment comes on the back of the promise of cheap labor[xxviii].
To sum up, the government cannot afford to give in to the pressure tactics of the protesting Jats, while the Jats too should back down from using such tactics. Instead, the focus should be on taking a more docile approach while at the same time drawing comparisons with communities who have already been accorded reservations to beef up their case. Since wealth is not the sole criteria used by the Government to accord reservation, aspects such as socio-cultural backwardness need to be examined with a microscopic lens.
In order to play hardball with the government, it is essential to understand that the idea of intelligible differentia should be utilized along with a strong basis to separate the creamy layer from those who are actually afflicted by this socio-economic divide[xxix]. After all, in the post Mandal Era, “Arthik Aadhar” has always served as an important determinant and greater investment in terms of the educational sphere in Jat dominated areas is required[xxx]. An analogy can be drawn with the Gujjar community, who, after causing great havoc were ultimately accorded a 5% reservation[xxxi]. While the Government made a proposals for investing close to 67 million $ in Gujjar dominated areas for educational purposes, no further movement has been made for the jat community[xxxii]. Thus, it is imperative to ensure that all necessary stakeholders not only analyze deep-rooted issues behind these problems but solve them together.
What is essential to understand is that the Jat Community like other communities, is not entirely homogenous. There are those who, in the era post the late 1980s, have developed exponentially owing to the real estate growth, while there are equally those who have not been able to keep pace with how rapidly the nation has changed over the last 25 years. While their methods are unscrupulous to say the least, it is essential to realize that there is an ardent need to help these people. As stated previously, the Government has never kept wealth as the sole barometer for according reservation. Here, the notion of intelligible differentia with justifiable nexus can very well be advocated in a bid to accord this community their necessary reprieve. Communities such as the Gujjars and Meena from Madhya Pradesh and Rajasthan have been brought under the Government’s reservation schemes, despite the fact that some sections of their society show ample economic ability to sustain themselves.
Can a similar reprieve not be handed to these individuals who clearly fit the bit of socially and educationally backward classes (SEBCs) by using plurality of indicators such as their access to the various modicums of socio-educational development? Suggestions such as the inclusion of the Jats as a part of the agrarian classes or “kamdars” is not too off the grain (they could be included with the like of the “Karigars” classes including the likes of potters, tailors).
An obvious problem is that out of the allocated 50% reservation baseline as set in the M.R. Balaji case,[xxxiii] State already has reservation up to 49% with 27% reservation for OBCs, 20% SCs and 3% for the disabled. However, a caveat to this scenario would be the 81st Amendment Act[xxxiv] which provided that the unfilled vacancies of a year reserved for SC/ST kept for being filled up in a year as per Article 16[xxxv] shall be considered separately for filling vacancies in the succeeding year and the previous list will not be considered for filling the 50% quota of the respective year. While there is an imposition of the 2 year time period for this carry forward rule (as laid down in Nagraj vs. Union of India[xxxvi]), it could be used at least initially to provide the basis for entry to the Jat community in the government services and the education services.
[i] M.N. Srinivas, The Dominant Caste in Rampura, 61 Am Anthropol 1, 1 (1959).
[ii] The narrative in question is the demand for the Jats community to be accorded reservation for governmental jobs and education centers. These demands have been expressed right since the Gurnam Singh Committee Report of 1991. The non-fulfillment of these demands has taken a violent turn in recent years, the reasons behind it is what this article seeks to examine. Internet Desk, Jat quota protests, What is it all about?, The Hindu (February 20, 2016), http://www.thehindu.com/specials/jat-quota-protests-what-is-it-all-about/article14091994.ece1
[iii] Editorial, The Non Solution, The Indian Express (March 21, 2017), http://indianexpress.com/article/opinion/editorials/jat-agitation-the-non-solution-4578016
[iv] Christophe Jaffrelot, Why Jats want a Quota, The Indian Express (February 23, 2016), http://indianexpress.com/article/opinion/columns/jats-reservation-stir-obc-quota-rohtak-haryana-protests
[vi] Shweta Punj & MG Arun, Where are the Jobs?, India Today(April 20, 2016), http://indiatoday.intoday.in/story/employment-scenario-job-crunch-jobless-growth-economy/1/647573.html
[vii] Gemma Corrigan & Attilio Di Batisto, 19 charts that explain India’s economic challenge, World Economic Forum (November 5, 2015), https://www.weforum.org/agenda/2015/11/19-charts-that-explain-indias-economic-challenge/
[viii] 2011-12 Annual Survey of Industries (Labour Bureau Report), http://labourbureau.nic.in/ASI_VOL1_2011_12.pdf, pp. 109-124.
[ix] Asit Ranjan Mishra, 7th Pay Commission: Central government employees to get salary hikes from August, Mint (July 27, 2016), http://www.livemint.com/Politics/aorsK3NSh3JdZJdbfZ15qL/7th-Pay-Commission-government-employees-to-get-salary-hikes.html.
[x] Derived from a Lok Sabha question- http://18.104.22.168/loksabhaquestions/annex/9/AU635.pdf.
[xi] While the movement was present even in the 2nd half of the 20th century ( George Rosen, Democracy and Economic Change in India, 1967 pp. 34), however a greater change can be seen in the new millennium.- Stuart Nagel, Handbook of Global Social Policy (Public Administration and Public Policy)
[xii] Economic Survey 2014-15 http://indiabudget.nic.in/es2014-15/echapter-vol2.pdf.
[xiii] Micheal Gillian & Rob Lambert, India and the Age of Crisis: The Local Politics of Global Economic and Ecological Fragility (1st ed., 2014) pp.123.
[xiv] Christophe Jaffrelot, Why Jats want a Quota, Indian Express (Feb. 23, 2016), http://indianexpress.com/article/opinion/columns/jats-reservation-stir-obc-quota-rohtak-haryana-protests/.
[xv] This is a part of the larger phenomenon called population boom which alongside India is being experienced by other African and Asian Countries as well. Wherein for migrants who move from rural to urban setups, education hardly appears as an essential for their basic sustenance needs are in question at that point. FAO, Cities of despair – or opportunity?, Food And Agricultural Organisation Of The United Nations ( 2015), http://www.fao.org/ag/agp/greenercities/en/whyuph/
Pranav Sidhwani, The stark inequality within Indian Cities, Mint (July 1, 2015), http://www.livemint.com/Opinion/TW5pRMYNKXDWxnPr6wsNBN/The-stark-inequality-within-Indian-cities.html
[xvi] Id, at 14.
[xvii]Ministry of Labor & Employment, Report on Absenteeism, Labor Turnover, Employment and Labor Costs ( Annual Survey of Industries (2011-12) Vol. II) pp. 38, http://labourbureau.nic.in/ASI_2011_12_V2.pdf
[xviii] Id, at 14.
[xix] G. Seetharaman, Haryana’s Jats to Kerala’s Brahmins: Why reservation pleas are being heard all over India, The Economic Times (October 18, 2016), http://economictimes.indiatimes.com/articleshow/49432264.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst. It was the case of M.R. Balaji v. State of Mysore 1963 AIR 649 where the 50% guideline in regard to reservation was imposed by the Supreme Court. However it was in the case of Indira Sawhney & Ors v. Union of India AIR 1993 SC 477 where the Supreme Court stated that in exceptional circumstances the 50% threshold could be bypassed.
[xx] Like the Special Backward Classes Reservation Act, 2015 which sought to include Gujjars and 4 other communities within its fold by according 5% reservation to them in governmental educational institutions and government jobs. Only for it to be subsequently struck down by Rajasthan High Court. Press Trust of India, 5 castes, including Gujjars, reincluded in OBC list in Rajasthan Financial Express (May 20, 2017), http://www.financialexpress.com/india-news/5-castes-including-gujjars-re-included-in-obc-list-in-rajasthan/677292/
[xxi] Express Web Desk, Jat Reservation Bill unanimously passed in Haryana Assembly, The Indian Express (March 30, 2016), http://indianexpress.com/article/india/india-news-india/jat-reservation-bill-unanimously-passed-in-vidhan-sabha/
[xxii] Shashi Tharoor, Who deserves reservations, Supreme Court delivers big verdict, NDTV (April 7, 2015), http://www.ndtv.com/opinion/who-deserves-reservations-supreme-courts-big-verdict-752861; Ram Singh & Ors. v. UOI, WP(C) No. 274 of 2014.
[xxiii] Sindhu Bhattacharya, India’s job growth lowest since 2009: Where are the jobs PM Modi?, First Post (April 15, 2016), http://www.firstpost.com/business/where-are-the-jobs-mr-modi-2731002.html
[xxiv] Jitendra Singh, Over two lakh new Central government jobs by 2017, The Economic Times (April 25, 2016), http://economictimes.indiatimes.com/industry/jobs/over-two-lakh-new-central-government-jobs-by-2017/articleshow/51979343.cms.
[xxv] Editorial, Private sector salaries may go up by 10-15 per cent, The Hindu (November 29, 2015), http://www.thehindu.com/news/cities/mumbai/private-sector-salaries-may-go-up-by-1015-per-cent/article7927727.ece. A trend such as this has been in the offering since 2015 and according to industry reports, said trend is likely to continue in 2017. Prachi Verma, India to have highest salary increase in 2017: Report, The Economic Times (December 31, 2016), http://economictimes.indiatimes.com/jobs/india-to-have-highest-salary-increase-in-asia-pacific-in-2017/articleshow/55941716.cms; Michael Page Employment Outlook Report 2017 http://www.michaelpage.co.in/content/salary-employment-outlook-2017-report/. It is imperative that these changes take place across the board.
[xxvi] Minimum Wages Act, 1948.
[xxvii] Yogima Seth Sharma, Government hikes minimum wage for agriculture labourer , THE ECONOMIC TIMES (Mar. 1, 2017), http://economictimes.indiatimes.com/news/economy/policy/government-hikes-minimum-wage-for-agriculture-labourer/articleshow/57408252.cms
[xxviii] Henry Foy, India still a foreign investment hot spot: E&Y, Mint (January 29, 2012), http://www.livemint.com/Politics/r6lh1u3ETbReauWN9Ay7uM/India-still-a-foreign-investment-hot-spot-EampY.html.
[xxix] Echoing the words of Justice R. Gogoi & Justice R.F. Nariman from the Ram Singh case, it is essential that we move away from the pedantic economic based understanding of the concept of reservation and instead examine a community or sub set within a community with a plurality of factors. Thus sheer reliance can’t be placed on the income based criterion of what constitutes a creamy layer and what does not ( as explicated here: Implementation of Creamy Layer Criterion, Business Standard (March 23, 2017), http://www.business-standard.com/article/government-press-release/implementation-of-creamy-layer-criteria-117032300919_1.html
[xxx] As indicated by the ASER (Annual Status of Education Report), 2010- (http://img.asercentre.org/docs/Publications/ASER%20Reports/ASER_2010/HARYANA_2010.pdf) whereby both private school and public school facilities were severely lacking in the state of Haryana in terms of infrastructure, teaching personnel amongst other factors. An article explaining the same is as follows: Editorial, Challenges in Primary School Education in Haryana, Naya Haryana (September 24, 2014), http://www.nayaharyana.com/governance/challenges-primary-school-education-haryana/. The situation as can be ascertain from the ASER 2016 still shows immense need of improvement-http://img.asercentre.org/docs/Publications/ASER%20Reports/ASER%202016/State%20pages%20English/haryana_state_english.pdf
[xxxi] Editorial, Gujjars get 5% reservation in Rajasthan, News 18 (November 29, 2012), http://www.news18.com/news/politics/gujjars-get-5-per-cent-reservation-in-rajasthan-524182.html. This subsequently been overturned by the Rajasthan High Court and the Gujjars have been included as a part of the OBC.
[xxxii] Editorial, Many die as Indian caste demands lower status, The Sydney Morning Herald (May 26, 2008), http://www.smh.com.au/news/world/many-die-as-indian-caste-demands-lower-status/2008/05/25/1211653847364.html.
Id. at 28. The absence of the requisite investment in the education sector is even more surprising considering Haryana is the only state which allows for, for profit entities to establish and run K-12 schools ( Primary & Secondary Schools)- NDA, Primer- Laws relating to education sector in India, Nda.Com (May, 2017), http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Primer-Laws_relating_to_Education_Sector_in_India.pdf. (pp.3)
[xxxiii] M.R. Balaji v. State of Mysore, 1963 AIR 649.
[xxxiv] 81st Amendment, The Constitution of India, 1950.
[xxxv] Article 16, The Constitution of India, 1950.
[xxxvi] Nagraj v. Union of India, AIR 2007 SC 71.