Constitutional and legal implications of the Bihar caste survey

Data from the Bihar caste survey indicates that the hegemonic link between dominant castes need to be replaced by a new, more inclusive link, opines Dr Ayaz Ahmad.

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ALL meaning, including experiential, becomes comprehensible only under a particular hegemonic formation.

Politically constituted contingent hegemonic formations structure the entire field of the social, opening doors for specific political and legal actions that are perceived as natural, inevitable or necessary.

However, as no hegemonic formation is immune from being challenged by its excluded elements, it remains vulnerable to dislocatory events which can erupt under their own conditions of possibility. 

If a different hegemonic link can suture the rupturing of an existing hegemonic field, then the whole social, political and legal field can radiate fresh meaning and experience for all kinds of social and political actors. 

The Bihar caste survey is one such event.

Dominant-caste inferiority

The caste survey released by the Bihar government has ruptured the hegemonic discourse around religious identities by gathering and making public authentic data on the population of different castes in the state.

First and foremost, this data punctures the hegemonic minority–majority discourse constructed on the axis of religion. It reveals the particularity of dominant-caste (unreserved) interlocutors who assume universalist positions as the leaders of minority and majority religious blocks respectively.

Also read: 'No object found, violates privacy': Why Patna HC stayed Bihar's caste-based survey

The data reveals the awful numerical inferiority of dominant castes who love to construct and lead these religious blocks.

Let us look at this façade from the prism of the Bihar caste survey and some democratic demands based on it.

One immediate and natural response to the release of the Bihar data has been the demand to increase the Other Backward Class (OBC) quota from a meagre 27 percent to a percentage that is more reflective of their overwhelming majority in the total population.

In particular, a demand for separate Extremely Backward Class (EBC)/Most Backward Class (MBC) sub-quota is also gaining momentum for perfectly legitimate reasons.

One may notice that this OBC/EBC/MBC category, much like the Economically Weaker Section (EWS) and Scheduled Tribe (ST) categories, is a religion-neutral category.

Expansion of religion-neutral OBC quota will have far-reaching consequences for certain well-entrenched constitutional practices.

Social integration of reservations in minority educational institutions

Article 30 of the Indian Constitution sanctions religion-based minority educational institutions which, due to judicial intervention, do not entertain any reservation for OBCs, Schedule Castes (SCs) or STs.

This exemption, in my view quite unconstitutional, holds even if the applicants belong to the same religious group for whose welfare the religion-based minority educational institutions are supposed to operate.

Now, if the majority of the 'religious minorities' are going to be covered under the expanded OBC/EBC/MBC/ST quota (and hopefully SC quota as well after the communal bar on it is lifted through legislative or judicial intervention) then for whose welfare do the religion-based minority educational institutions operate?

Bihar caste data gives the answer: the Syed, Sheikh, Pathan, i.e., Ashraaf, who constitute a mere 4.8 percent of the total Bihar population.

Also read: Patna High Court terms reservations for OBC/EBC in municipal elections in Bihar as illegal

This number is likely to be less than 2 percent as and when all-India caste census data becomes available. Moreover, these 2 percent Ashraaf are already covered under the 10 percent upper caste EWS quota.

In light of these numbers, the existing constitutional arrangement on minority educational institutions as perfected by judicial interpretation increasingly sounds untenable.

Either minority educational institutions should welcome social integration by providing representation to SC/ST/OBCs in proportion to their population or they explicitly exist as an Ashraaf ghetto designed to serve just 2 percent of the Indian population.

Common education system

In any case, Bihar data categorically establishes that Ashraaf have no right to impose their decisions on the Pasmanda community in the name of a minority voice when their material interests are better aligned with Savarna (unreserved) castes.

Therefore, in the field of education, the only policy framework that can do justice to the existing social realities of contemporary India is the common education system (CES).

The dislocation caused by this shift has serious implications for another highly controversial legal issue of the Common Family Code (CFC) which is mistakenly referred to as the Uniform Civil Code.

In the absence of a CFC, the communal personal laws install communal segregation as the first principle of family formation in India.

This Savarna–Ashraaf decision need not be imposed on Bahujan–Pasmanda anymore as the former class does not, in all earnestness, represent the latter class.

If a CFC becomes the reality, the reproduction of communalism and casteism at the family level can come to an end in due course with the help of social and cultural familial practices.

Also read: Is Bihar a Police State in the Making?

Bridging the gap

Bihar data also makes it unnecessary to maintain caste and communally segregated living spaces in some states sanctioned by the law and in some others sanctioned by the minority but dominant Savarna–Ashraaf civil society.

The answer is the enactment of the common housing law (CHL) which mandates proportional allocation of living space in every housing society for different caste communities.

Caste and communal practices can lose their grip on our society only when there is empowerment of the marginalised and excluded castes on one hand and a change in the attitude of dominant castes on the other.

Sharing of living space, family space and educational space by children, young and the veteran can create that fraternal feeling which can wipe out caste and communal practices from our body politic.

The above conclusions, however romantic they may sound, are by no means the natural outcome of enumerating different castes in Bihar or for that matter in the rest of the country.

It all depends on whether prominent social and political actors can manage to overcome the communally informed minority–majority framework developed and perfected in the last century.

Direct colonial support structure for that communal framework may not be there, yet its Savarna–Ashraaf champions guard it with life.

In this sense, we are up against a certain hegemonic formation which has structured our entire field of meaning in such a way so as to treat the above reflection on legal possibilities as absurd.

Decolonisation, after all, is not an easy task for those who have been its greatest beneficiaries in the post-colonial period.

Thus, the release of the Bihar caste survey data has just created an opening, and it can be closed either by new democratic beginnings or old feudal closures in a different form.

The political choice is for all of us to make as the new meaning of our social and political life will be for all of us to experience.