Why orphans need reservation

Let me introduce Mohan. He's a child of about 12 years of age. No one knows who his parents are. He remembers an old "Tai", a beggar woman, with whom he was begging till about 5 years ago when she died. He has been scavenging on the streets since then.

Is he entitled to reservation?

Please decide.

Firstly, the Statistical Argument - Who gets reservation? Scheduled Castes/Scheduled Tribes/OBC castes. How much of the population do they form? 70 percent. So, statistically, there is a 70 percent chance that Mohan anyway belongs to these castes/tribes. Which essentially means that if he had parents, he would be availing reservation and many more benefits from the Government, and the accident of their death/absence has deprived him of these.

Secondly, the Mandal Commission Argument - The 'C' in OBC is Class. How were the OBC castes identified as OBC classes deserving reservation? By the Mandal Commission. The Mandal Commission Report first chose a set of criteria for identifying a 'class/caste' as backward. Then the Commission applied these criteria to determine which class/caste was included in Other Backward Classes/Castes as separate from 'Forward Castes'.

The Criteria are...

(1) Social

a) Castes/classes that are considered as socially backward by others

b) Castes/classes which mainly depend on manual labour for their livelihood,

c) Castes/classes where at least 25 per cent females and 10 per cent males above the State average get married at an age below 17 years in rural areas, and at least 10 per cent females and 5 per cent males that do so in urban areas.

d) Castes/classes where participation of females in work is at least 2 per cent above the State average.

(2) Educational

a) Castes/classes where the number of children in the age group of 5-15 years who never attended school is at least 25 per cent above the State average.

b) Castes/classes when the rate of student drop-out in the age group of 5-15 years is at least 25 per cent above the State average,

c) Castes/classes amongst whom the proportion of matriculates is at least 25 per cent below the State average.

(3) Economic

a) Castes/classes where the average value of family assets is at least 25 per cent below the State average,

b) Castes/classes where the number of families living in kuccha houses is at least 25 per cent above the State average,

c) Castes/classes where the source of drinking water is beyond half a kilometer for more than 50 per cent of the households,

d) Castes/classes where the number of households having taken consumption loans is at least 25 per cent above the State average.

Different weights were given to indicators in these three groups. Social indicators had a weight of 3 points each, Educational indicators 2 points each and Economic indicators 1 point each. The maximum total possible was 22 points. Hence 'Most Backward' would be with 22 points and least Backward or most 'Forward' would be with 0 points.

Mandal Commission applied these 11 indicators to all the classes/castes. All classes/castes which had a score of 50% or more, that is 11 points or more, were identified as the OBC castes and those with 10 points or less were categorised as 'advanced'.

If orphans are considered a separate 'class'/'caste' - then this orphan class/caste fulfils all 11 out the 11 of the Mandal Commission criteria to be considered 'backward', that is, it has a full score of 22 or the highest possible rating of 'Backwardness'.

But if you are not convinced even now - for the above can be debated by the harshest of hearts... there's more to this story.

The Audi Alteram Partem Argument - A quick legal lesson... there is a legal principle called 'audi alteram partem'... the right to be heard before you are condemned or a choice is made for you. Rapists, murderers and criminals are given their day in court. But orphans?... No!

In orphanages, religion and, sometimes, caste of an orphan is decided by orphanage officials, who are doing a job and have no personal relationship with the orphan. There is no choice from the orphan, even when he grows up. Sure, all parents give their religion and caste to their children, but it is part of the strongest personal bond in human society and is not, in any way, by an arbitrary choice. An orphan who is not born into any religion/caste should not have a religion/caste imposed on him by an arbitrary authority in an institution. He should have a right to be heard and a say in the choice when he comes of age.

Suppose we assume that an orphan is a Hindu.

The Theological Hindu Argument - There can be no Hindu without a caste. As Dr Ambedkar put it, "This is called by the Hindus the Varna Vyavasthâ. It is the very soul of Hinduism. Without Varna Vyavasthâ there is nothing else in Hinduism to distinguish it from other religions." If all Hindus have to have a caste, then orphans too should have a caste. However, theologically speaking, only certain types of Hindus can be forward caste. They are called twice born. These are the three upper castes of Brahmans (priests), Kshatriyas (kings) and Vaisyas (traders) who are considered as 'Dvija' and their various combinations, off-shoots and claimants. In traditional Hinduism of the four "Varnas", Non-Forward Caste or 'Shudras' by Hindu law and judicial pronouncements, such as Privy Council in Muthusami Mudaliar Vs Masilamani (1909), are all those who don't belong to the trio of 'regenerate or twice born' castes. This includes all of the various castes such as backward castes, scheduled castes and scheduled tribes. Hindu 'orphans' are clearly not the 'regenerate or twice born' and should be given their rightful place in the OBC/SC pantheon.

Statistics, theory, theology... we are still not done through. There is still the law, the legal aspect to all this.

The Law of the Supreme Court Argument - The Supreme Court has extended reservation to the third gender, because they are socially, educationally and economically backward! As much as transgenders suffer in our society and are unjustly treated, aren't orphans equally, if not more backward?

The Supreme Court has insisted the "C" in OBC, which is "Class", be used to "identify new and deserving Classes" for extending the benefits of reservation.

Is there any "Class" more deserving of reservation than 'orphans'?

What do you think? Should Mohan and his kind get reservation?

(Poulomi Pavini Shukla is a lawyer, writer, and humanitarian who is passionate about the plight of India's orphans. She is a Wharton School alumna who is also passionate about economic theory research and is a close observer of court proceedings in the fields of policy formulation and judicial activism)

Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of OneIndia and OneIndia does not assume any responsibility or liability for the same.