The politically sensitive issue of caste census and Other Backward Class (OBC) reservation can only be understood as a series of fortunate events: At the Centre, the Rohini Commission, put together to examine the extent of inequitable distribution of reservation among OBCs, submitted its report to the President of India Droupadi Murmu almost six years after it was formed. At the state level, long legal battles have accompanied the efforts of at least three states — the latest being Bihar —to not only come up with a structure to provide empirical data, but also accordingly, grant reservation to OBCs.

Let’s start with Bihar.

The politically sensitive issue of caste census and Other Backward Class (OBC) reservation can only be understood as a series of fortunate events: At the Centre, the Rohini Commission, put together to examine the extent of inequitable distribution of reservation among OBCs, submitted its report to the President of India Droupadi Murmu almost six years after it was formed. At the state level, long legal battles have accompanied the efforts of at least three states — the latest being Bihar —to not only come up with a structure to provide empirical data, but also accordingly, grant reservation to OBCs.

Let’s start with Bihar.

On June 2, 2022, the Bihar cabinet gave its nod to conducting a caste survey by February 2023. However, two months later, chief minister Nitish Kumar snapped ties with the Bharatiya Janata Party (BJP) and joined the Rashtriya Janata Dal (RJD)-led Mahagathbandhan or Grand Alliance (GA). The survey eventually began on January 7, and the first round went on till January 21. The second round began on April 15 and was scheduled to continue till May 15, but midway through the process, the Patna high court (HC) issued a stay on May 4 after several petitions were filed by individuals and social organisations against the legitimacy of the caste survey.

The state moved an interlocutory application (IA) for an early hearing, which was rejected. It then filed a special leave petition (SLP) in the Supreme Court challenging the HC stay. However, the apex court refused to hear the matter till its disposal by the HC. Finally, nearly three months after the survey was suspended, an HC bench of Chief Justice K Vinod Chandran and Justice Partha Sarthy dismissed all challenges to the survey.

“We find the action of the state to be perfectly valid, initiated with due competence, with the legitimate aim of providing ‘development with justice,” the bench observed.

The stalled survey process resumed and is now complete. The data is currently being reviewed by the government.

What’s at stake for Nitish?

While there is no official data available on the actual strengths of different castes, all estimates are based on projections from the last time a caste census was done, and its information was made public — 1931. There have been many demands for a new census of backward communities, including by Nitish Kumar himself, as its electoral potential is invaluable.

The information from the social economic and caste census (SECC) of 2011, was not made public citing discrepancies. Till date, the decadal census only counts religion and SC/ST population — not any of the other castes. Thus, based only on projections from the 1931 census, Bihar’s OBC population is estimated to be 51.3%. The current arithmetic of quota calculated on the basis of this is 16% for Scheduled Castes (SC), 1% for Scheduled Tribes (ST), 18% for Economically Backward Classes (EBC), 12% for OBC, and 3% for OBC women. This comes to 50% in all. Over and above this, 10% EWS (Economically Weaker Sections) quota is also available.

The CM has reiterated the need for a census consistently since he was an ally of the BJP. At the Independence Day function earlier this week, the CM said that the government had decided to carry out a caste survey in 2022 and the exercise was underway till “somebody went to court and it was stopped”.

“The work is now nearing completion. Once it is completed, we will have information about all the castes, including their socio-economic condition. There will be an assessment of the economic conditions of everyone irrespective of caste, creed, and it will also include upper castes. Those with poor economic conditions will be given more assistance. There will be separate schemes for them. What we are doing is in the interest of all,” he added.

But the caste census will also play an important role in the upcoming 2024 elections, psephologists said, adding that it will allow political parties to determine the electoral strength of communities. What’s more, it also has the potential to upset the existing reservations.

Social analyst and former director of AN Sinha Institute of Social Studies DM Diwakar said that in the absence of a general census in 2021 (it was delayed on account of the pandemic, but hasn’t begun yet), a caste census will help the Bihar government plan and identify the marginalised people to bring them into the mainstream. “This judgement will give a political edge to the Grand Alliance to consolidate their political constituency. Now this will have wider implications and also echo in other states. The Centre will also be under pressure to take a policy decision on this. The GA leaders have been batting for reservation proportionate to population and how the government goes about it once the caste survey data is ready will be significant,” he added.

Already the Patna HC’s go-ahead has been challenged in the Supreme Court — which, while it refused to stay the HC order, will hear the case on August 18 — and serves as a reminder of the entrenched nature of the issue.

Read more: Inside the survey to enumerate India’s oldest fault line

Now, on to Madhya Pradesh.

Till date, the Bhopal high court has received 102 petitions in the last four years, some challenging the 2019 state government order increasing OBC reservation in recruitment and admissions from 14 to 27%, and others seeking an even higher reservation.

The legal problem for the state government is that its order takes the total reservation made available to all of MP’s residents to 73%. A nine-judge bench of the Supreme Court in 1992 had set the ceiling of reservation at 50% in what was called the Indra Sawhney (or more popularly, the Mandal Commission) case.

Many petitioners argue that increasing reservation for OBCs in government jobs and educational institutions beyond 50% is a violation of the ceiling and of articles 14, 15 and 16 of the Constitution. On the other hand, the OBC Advocates Welfare Association, one of the petitioners, demanded that 27% reservation should be implemented in all the jobs in proportion to the OBC population. In the course of the hearing, the state government revealed that over 51% of MP’s population comprises castes that belong to the OBC category, and their representation in government jobs stands at 13.6%. This was the first time that the general administration department (GAD) presented the data before the MP high court.

The OBC Mahasabha, an organisation constituted to fight for reservation, said that a 1983 report submitted by the Ramji Mahajan Commission constituted by the state government had recommended 35% reservation for OBCs.

Then, in July 2019, the state assembly passed a bill regarding the OBC quota which increased the total reservation available to all residents for government jobs and educational institutions to 73%. In effect, OBC persons could now avail 27% reservation, while SCs continued to receive 16% and STs 20% reservation. Economically weaker sections receive 10% reservation.

However, in March of that year, the then Congress-led government passed an order based on the aforementioned bill, which was then an ordinance, seeking recruitments for teachers' positions and medical officers, as well as on postgraduate admissions in medical colleges within the OBC quota of 27%. Within two weeks, these three orders were challenged in the HC court, which stayed the government orders.

The government nevertheless went on to pass the bill, which was an amendment to an earlier law pertaining to the OBC quota.

For two years, however, nothing moved as the matter was pending in the high court. OBC organisations staged protests and began demanding a caste census that would go a long way in helping the government decide on proportional representation. On September 3, 2021, the state government, now headed by the BJP, asked all government departments except school education, health and medical education -- as these were currently subject to the Patna HC case -- to implement 27% reservation for OBC persons. The GAD issued the order citing the legal opinion of the then state advocate general Purushaindra Kaurav which stated that the HC has stayed increased reservation in these three departments only.

Meanwhile, the issue has become a political hot potato in the poll-bound state.

The Congress and OBC organisations blame the BJP for failing to present a strong argument in favour of increasing reservation. The Congress has announced that it will conduct the caste census while the BJP has argued that it put forward a strong case in favour of reservation.

“The state government failed to present the facts before the court because they want to delay the matter till elections are held. We will conduct a caste census so that the condition of all the castes in the state will be made clear,” said Congress leader JP Dhanopia.

Minister of urban development and a member of the OBC committee formed by the government for OBC reservation, Bhupendra Singh said, “The state government is putting all the efforts to win the case in the court. All the reports and facts were filed. We are hoping that judgement will come in our favour.”