Community Empowerment by Dr. SBM Prasanna, Dr. K Puttaraju, Dr.MS Mahadevaswamy (books under 200 pages TXT) 📕

prior stand that those considered part of the "Creamy layer" should be excluded by government-funded institutions and by private institutions from the scope of the reservation policy.

Introduction

Community is a social unit of any size that shares common values. The word "community" is derived from the Old French comunete which is derived from the Latin communitas (from Latin communis, things held in common), a broad term for fellowship or organized society. One broad definition which incorporates all the different forms of community is "a group or network of persons who are connected (objectively) to each other by relatively durable social relations that extend beyond immediate genealogical ties, and who mutually define that relationship (subjectively) as important to their social identity and social practice."

Empowerment’ refers to the process by which people gain control over the factors and decisions that shape their lives. It is the process by which they increase assets and build capacities to gain access, partners, net works.

Community empowerment refers to the process of enabling communities to increase control over their lives. ‘Communities’ are groups of people that may or may not be spatially connected. But, who share common interest, concerns or identities. These communities could be local, national or international, with specific or broad interests.

Constitutional and Legal Provisions

Objective of providing reservations to the Scheduled Castes(SCs), Scheduled tribes (STs)and Other Backward Classes (OBCs) in services is not only to give jobs to some persons belonging to these communities. It basically aims at empowering them and ensuring their participation in the decision making process of the State. Justice B.P. Jeevan Reddy, while delivering the majority judgement in the matter of Indra Sawhney & Ors Vs. UOI & Ors, observed that public employment gives a certain status and power, besides the means of livelihood. The Constitution has, therefore, taken special care to declare equality of opportunity in the matter of public employment. Keeping the broader concept of equality in view, Clauses (4) and (4A) of Article 16 of the Constitution declare that nothing in the said Article shall prevent the State from making any provision for reservation of appointments or posts in favour of backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. Article 16 of the Constitution and also Article 335 which have direct bearing on reservation in services are reproduced below:

There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

Nothing in this article shall prevent the State from making any provision for thereservation of appointments or posts in favor of any backward class of citizens which in the opinion of the State, is not adequately represented in  the services under the state.

4A Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

4B Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total  number of vacancies of that year.

Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

The Constitution does not define Other Backward Classes. However, in pursuance of the judgment of Supreme Court in Indira Sawhney’s case, the Government enacted the National 6 Commission for Backward Classes (NCBC) Act in April, 1993. As per Section 2 of the NCBC Act, “Backward classes” means such backward classes of citizens, other than the Scheduled Castes and Scheduled Tribes, as may be specified by the Central Government in the lists. For the above purpose, Section 2 also defines “lists” as lists prepared by the Central Government for providing reservation in appointments to backward classes of citizens, which, in its opinion are not adequately represented in services, under the Government of India and any local or other authority. The Ministry of Social Justice and Empowerment has notified the lists of Castes / Communities which are treated as Other Backward Classes.

Under Article 340 of the Indian Constitution, it is obligatory for the government to promote the welfare of the OBCs. The president may by order appoint a commission, consisting of such persons as he thinks, fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the union or any state to remove such difficulties and as to improve their condition and as to the grants that should be made, and the order appointing such commission shall define the procedure to be followed by the commission. A commission so appointed shall investigate the matters referred to them and present to the president a report setting out the facts as found by them and making such recommendations as they think proper.

First Backward Classes Commission

The First Backward Classes Commission was established by a presidential order on 29 January 1953 under the chairmanship of Kaka Kalelkar, and submitted its report on 30 March 1955. It had prepared a list of 2,399 backward castes or communities for the entire country, of which 837 had been classified as the "most backward". Some of the most notable recommendations of the commission were:

Undertaking caste-wise enumeration of population in the census of 1961;

Relating social backwardness of a class to its low position in the traditional caste hierarchy of Indian society;

Treating all women as a class as "backward";

Reservation of 70 per cent seats in all technical and professional institutions for qualified students of backward classes.

Reservation of vacancies in all government services and local bodies for other backward classes.

The commission in its final report recommended "caste as the criteria" to determine backwardness. However, the report was not accepted by the government, which feared that the backward classes excluded from the caste and communities selected by the commission might not be considered, and those in most need would be swamped by the multitudes, thus receiving insufficient attention.

Mandal Commission

The Mandal Commission was established in India in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward." It was headed by Indian parliamentarian B.P. Mandal to consider the question of seat reservations and quotas for people to redress caste discrimination, and used eleven social, economic, and educational indicators to determine backwardness. In 1980, the commission's report affirmed the affirmative action practice under Indian law whereby members of lower castes (known as Other Backward Classes (OBC), Scheduled Castes (SC) and Scheduled Tribes (ST)) were given exclusive access to a certain portion of government jobs and slots in public universities, and recommended changes to these quotas, increasing them by 27% to 50%. Mobilization on caste lines had followed the political empowerment of ordinary citizens by the constitution of free India that allowed common people to politically assert themselves through the right to vote.

Criteria to Identify OBC

The Mandal Commission adopted various methods and techniques to collect the necessary data evidence. In order to identify who qualified as an “ other back word class,” the commission adopted eleven criteria which could be grouped under three major headings, i.e., social, educational and economics.

Other Backward Class (OBC) is a collective term used by the Government of India to classify castes which are educationally and socially disadvantaged. It is one of several official classifications of the population of India, along with Scheduled Caste and Scheduled Tribes (SCs and STs). The OBCs were found to comprise 52% of the country's population by the Mandal Commission report of 1980, which in fact is around 80% of India's total population. 

In the Indian Constitution, OBCs are described as "socially and educationally backward classes", and the Government of India is enjoined to ensure their social and educational development - for example, the OBCs are entitled to 27% reservations in public sector employment and higher education. The list of OBCs maintained by the Indian Ministry of Social Justice and Empowerment is dynamic, with castes and communities being added or removed depending on social, educational and economic factors.

Until 1985, the affairs of the Backward Classes were looked after by the Backward Classes Cell in the Ministry of Home Affairs. A separate Ministry of Welfare was established in 1985 (renamed in 1998 to the Ministry of Social and Empowerment) to attend to matters relating to Scheduled Castes, Scheduled Tribes and OBCs.

The Backward Classes Division of the Ministry looks after the policy, planning and implementation of programmes relating to social and economic empowerment of OBCs, and matters relating to two institutions set up for the welfare of OBCs, the National Backward Classes Finance and Development Corporation and the National Commission for Backward Classes.

In 1992 decision of the Supreme Court of India resulted in a requirement that 27% of civil service positions be reserved for members of OBCs.  In August 2010 the Times of India reported that at most 7% of eligible positions had been filled by OBCs, in spite of the 27% reservation. This difference between proportion of different communities in higher educational institutions is mainly because of difference in primary school enrollment.

Legal dispute - Supreme Court interim stay

On 29 March 2007, the Supreme Court of India, as an interim measure, stayed the law providing for 27 percent reservation for Other Backward Classes in educational institutions like IITs and IIMs. This was done in response to a public interest litigation  (Ashoka Kumar Thakur vs. Union of India). The Court held that the 1931 census could not be a determinative factor for identifying the OBCs for the purpose of providing reservation. The court also observed, "Reservation cannot be permanent and appear to perpetuate backwardness".

Supreme Court verdict

On 10 April 2008 the Supreme Court of India upheld the government's initiative of 27% OBC quotas in government-funded institutions. The Court has categorically reiterated its prior stand that those considered part of the "Creamy layer" should be excluded by government-funded institutions and by private institutions from the scope of the reservation policy. The verdict produced mixed reactions from supporting and opposing quarters.

Several criteria to identify the portion of the population comprising the "creamy layer" have been recommended, including the following:

Children of those with family income above  250,000 a year, and then  450,000 a year as of October 2008 and now 600,000 a year, should be considered creamy layer, and excluded from the reservation quota.

Children of doctors, engineers, chartered accountants, actors, consultants, media professionals, writers, bureaucrats, defence officers of colonel and equivalent rank or higher, high court and Supreme Court judges, all central and state government Class A and B officials should be excluded.

The Court has requested Parliament to exclude the children of MPs and MLAs as well.

Supreme Court conclusions from Ashoka Kumar Thakur vs. Union of India

The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions.

The "Creamy layer" principle is