DMK Rajya Sabha MP and Supreme Court advocate P Wilson has written to Prime Minister Narendra Modi saying that there is a “constitutional deadlock in ensuring OBC (Other Backward Classes) representation in local body posts”. The deadlock, Wilson says, arises from the lack of caste census data, which he points out has not been released by the Union government despite conducting a census in 2015. Further, though there is constitutional provision for states to allocate OBC reservation, these allocations are struck down by courts citing a “lack of empirical data”. In his letter to PM Modi, Wilson asks that the census be shifted from the Union List, under the control of the Union Government, to the Concurrent List.
Wilson points to the recent example of events in Maharashtra. Earlier this year, the Supreme Court had directed the Maharashtra State Election Commission (SEC) to conduct the local body polls without OBC reservation, citing the reason that there was no caste-based headcount available.
“The state’s policy was struck down by the Supreme Court on the grounds that there was no empirical data, local body wise, on the percentage of OBCs living in each local body,” he says in the letter. Wilson further provides similar examples from Madhya Pradesh and Pondicherry.
“In all these cases, the legal obstacle to granting OBC reservations in local body elections is the want of ‘empirical data’, which has been made a prerequisite by the judiciary,” Wilson says. He adds that the judiciary also requires that the state appoint a dedicated commission to gather information for ascertaining political backwardness of the backward classes. “For this exercise, it is vital to have access to the caste census data relating to OBCs.”
Wilson also highlights that in March 2011, the 15th Lok Sabha had passed a resolution to undertake Socio Economic Caste Census (SECC), which includes census of all castes other than Scheduled Caste/Scheduled Tribe communities. As Wilson’s letter further points out, the Union Cabinet spent Rs 4,893.6 crore to conduct the said census with the help of the state and union territory governments. The raw data was collected in 2015 and a Cabinet Committee chaired by the PM decided to screen the data through an expert NITI AYOG committee, Wilson writes. “Yet, till today, the said committee has not functioned and the caste census data has not been released. Thus, even though the caste census was taken in SECC 2011 by the Union, the same is not published till today for unknown reasons. The union is also refusing to undertake a fresh caste census.”
The DMK MP has suggested three remedies to the deadlock in his letter. First, to change the mention of the census from the Union List (entry 69) to the Concurrent List giving both the Union and the state concurrent power to conduct the census. Second, constitutional amendments to Articles 243(D)(6) and Articles 243(T)(6) in order to compulsorily grant OBC reservations in local body elections on the basis of empirical data. The third demand is the release of the caste census data collected by the Union government.
Speaking to TNM, Wilson says, “There is no point in the Union government having exclusive control over the census when they are not lifting a finger to break the deadlock. Shifting the census from the Union List to the Concurrent List will not only enable OBC reservation in local body elections, it will also be useful in ensuring reservations in other avenues, as any such allocation requires empirical data on caste censuses.”
In his letter, Wilson refers to the 73rd and 74th Constitutional Amendment Acts of 1992 as “a watershed moment in Indian democracy”. He says that the prime objective of the amendments was “democratic decentralisation of power and participation of the oppressed and backward classes in governance.” Wilson further adds that the objective was “equitable distribution of power” based on which reservation for SC/ST communities and also for women of said communities was made mandatory. This reservation, he also highlights, was to be decided on the basis of the proportion of SC/ST populations to the total population of the area.