The Lokpal composition skirts statutory reservation to propagate upper-caste domination

The caste identity of the nine Lokpal members shows, rather ironically, that its compliance with the statutory reservation provisions was little more than a pretence of representation and impartiality. Shahbaz Khan / PTI
16 April, 2019

A conspicuous silence shrouds the social composition of the recently constituted Lokpal, India’s anti-corruption body, empowered to inquire into complaints against the prime minister, ministers and members of parliament, among others. The upper castes and other dominant social groups account for as high as 77.7 percent of the Lokpal’s members—upper castes alone account for 55.5 percent. It does not have a single member from the Other Backward Classes and the Scheduled Tribes. The body comprises only one Dalit member, and religious minorities have been represented by a Jain—an ironic choice, given that the community was officially recognised as a part of the Hindu fold until January 2014, when it was accorded a minority status.

This skewed social composition violates the spirit of the provisions of the Lokpal and Lokayukta Act of 2013, which establishes the anti-corruption body and mandates reservations among its members. The act prescribes a nine-member body, presided by a chairperson, and states that 50 percent of its eight remaining members “shall be from amongst the persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and women.”

The act also states that the Lokpal’s members would be chosen by a selection committee led by the prime minister—who is designated as the chairperson—the Lok Sabha speaker, the leader of the opposition in the Lok Sabha, the chief justice of India or a Supreme Court judge nominated by the chief justice, and one eminent jurist recommended by the chairperson and the three other members. The committee that selected the Lokpal did not, however, have any representation from the opposition because the Congress leader Mallikarjun Kharge boycotted the selection proceedings­­. Kharge was seeking an amendment to the Lokpal act that would include the leader of the single largest opposition party as a member of the selection committee. The committee, in turn, is required to constitute a search committee of at least seven members that would shortlist candidates for appointment to the Lokpal. The Lokpal act prescribes a similar 50-percent reservation for the search committee as well.

The act’s emphasis on subaltern groups did not deter the selection committee from exploiting ambiguities in the Lokpal Act to deny them representation and instead enhance the hold of the upper-caste elite. A literal interpretation of the reservation provision indicates that the act does not stipulate a distinct break-up of reservations for each individual community, but only that 50 percent of the Lokpal’s members should cumulatively come from the specified subaltern groups. As a result, while the selection committee technically complied with the act by appointing four candidates from the reserved categories, its choice of members shows, rather ironically, that this was little more than a pretence of representation and impartiality.

To determine the caste identities of the Lokpal’s members, I checked their social background from a diverse range of sources, including politicians, lawyers and journalists. I also reached out to the additional secretary at the department of personnel and training, which issued the notifications for all Lokpal members, but I received no response despite multiple calls and emails.

The caste identity of the nine Lokpal members is as follows—PC Ghose, a retired Supreme Court judge and the chairperson of the Lokpal is Kayastha; Dilip Babasaheb Bhosale, a former chief justice of the Allahabad high court is Maratha; Pradip Kumar Mohanty, a former chief justice of the Jharkhand high court is Kayastha; Abhilasha Kumari, a former chief justice of the Manipur high court is Rajput; Ajay Kumar Tripathi, a former chief justice of the Chhattisgarh high court is Brahmin; Dinesh Kumar Jain, a former Maharashtra chief secretary is Jain; Archana Ramasundaram, a former Indian Police Services officer is Brahmin; Mahender Singh, a former Indian Revenue Services officer is Jat; and IP Gautam, a former Indian Administrative Services officer is Dalit. (The Lokpal act also mandates that 50 percent of its members, excluding the chairperson, should have served as a Supreme Court judge or a high court chief justice.)

The four members from the reserved categories are the religious minority member Jain, the Scheduled Caste member Gautam, and the two women members, Kumari and Ramasundaram. Both the women members, who account for half of the reserved appointees, are upper caste and a predominant reason why upper-caste representation in the Lokpal totals 55.5 percent. It is vital to have women representation in all institutions, but given the Lokpal Act’s intent to make the anti-corruption watchdog socially diverse, it would been appropriate to appoint one or both women members from SC, ST, OBC or other minority communities. In addition, while Bhosale and Singh—a Maratha and a Haryanvi Jat, respectively—are not upper castes; both their communities are not in the central OBC lists of backward castes in their respective states.

The decision to appoint Dinesh Kumar Jain as the religious minority member was an equally contentious choice. According to the 2011 census, Jains constitute about 0.37 percent of India’s population, as opposed to the 14.23 percent who are Muslims, 2.3 percent who are Christians and 1.72 percent who are Sikhs. The Jain fight to claim a religious identity separate from the Hindus is decades old. It gathered tremendous momentum after the central government issued a notification on 23 October 1992, under the National Commission for Minorities Act passed that year, which identified Muslims, Christians, Sikhs, Buddhists and Parsis as religious minorities.

In 2005, the Supreme Court dismissed a case seeking minority status for the Jain community, noting that “‘Hinduism’ can be called a general religion and common faith of India whereas ‘Jainism’ is a special religion formed on the basis of quintessence of Hindu religion.” The court further observed, “In philosophical sense, Jainism is a reformist movement among Hindus.”

Until their inclusion among religious minorities in January 2014, Jains were sociologically clubbed with Vaishyas—the third varna in the Hindu caste hierarchy and traditionally considered the merchant class—largely because they were engaged in business and possessed wealth. This is why the selection of a Jain as a Lokpal member is problematic—they do not suffer from the exclusion, backwardness or poverty that dogs all subaltern groups. Indeed, it can be argued that the vulnerability of a religious minority arises from both their relatively small numbers and their socio-economic deprivation.

The debate preceding the the Lokpal Act illustrated that the reservation provision was also linked to the perception that the concerned communities suffered the most from the menace of corruption. This point was forcefully made by PS Krishnan, the first member-secretary of the National Commission for Backward Classes, in a memorandum that he submitted to a parliamentary standing committee in 2011. At the time, the standing committee was considering different drafts of the Lokpal bill presented by the government and civil-society groups, and Krishnan’s memorandum proposed changes to key aspects of the bills based on extensive consultations that he held with Dalit and backward-caste groups.

Krishnan argued for expanding the definition of corruption to include its many manifestations, such as misgovernance, misconduct, maladministration and discrimination. He argued that from this perspective, the worst sufferers of corruption were vulnerable groups such as the SCs, the STs, the OBCs, the religious minorities, and the women and children among these categories.

“Not providing for their representation is like staging Hamlet without a Prince of Denmark,” Krishnan stated, adding that all the drafts under consideration by the standing committee were “unanimous in missing this aspect.” He proposed that not less than 15 percent of all Lokpal members, including the chairperson, should be from the SCs, not less than 7.5 percent from the STs, and not less than 27 percent from the OBCs including the religious minority castes among them. The prescribed quantum did not breach the Supreme Court-mandated cap of 50 percent on reservations. He added, “It is essential to ensure that in the process of reservation, religious minorities, particularly largest religious minority, namely, Muslims, who are the most vulnerable to discrimination among minorities, should find place.”

Krishnan also recommended that one-third of all Lokpal members should be women, who were to be drawn from both general and reserved categories. His proposal for women’s reservation across social groups is an example of horizontal reservation, which would not breach the 50 percent cap.

Krishnan’s proposal could have been neatly implemented for a Lokpal comprising 13 members. By his formula, it would have had two SC members, one ST member, three OBC members, with one of them belonging to religious minorities, particularly Muslim. There would have been four women, drawn from both the general and reserved categories.

Krishnan’s proposal may have provided the impulse to stipulate that 50 percent of eight Lokpal members should come from the specified categories. Yet, the failure to segregate each category of reservation left loopholes for the selection committee to exploit. Under Krishnan’s formula, for instance, Dinesh Kumar Jain would not have been included—Jains, unlike many Muslim castes, are not socially and educationally backward, which is the criterion for inclusion in the OBC reservation pool. Similarly, the selection committee deftly—or cynically—assigned two seats in the reserved quota to two upper-caste women. In effect, three out of the four reserved seats in the first Lokpal have not gone to marginalised groups, turning the process of selection into a travesty of social justice.

Lower-caste politicians often complain that they are accused of and charged with corruption only because the upper castes cannot countenance their rise to power and use their domination of institutions to penalise them. In December 2017, the news website The Print published an article titled, “Are leaders from ‘lower’ castes and subaltern groups more corrupt?” In response, Lalu Prasad Yadav, the former chief minister of Bihar, who had just been convicted in one of several corruption cases against him, tweeted: “Powerful people and powerful classes always managed to divide society into ruling and the ruled classes. And whenever anyone from the lower hierarchy challenged the unjust order, they would be deliberately punished.”

The composition of the Lokpal does indeed suggest that it is a body of social groups comprising what Yadav called “powerful people and powerful classes.” This is evident from the family backgrounds of most of the judicial members of the Lokpal. The chairperson Ghose is the son of SC Ghose, a former chief justice of the Calcutta high court. Bhosale is the son of Babasaheb Bhosale, who was the chief minister of Maharashtra between 1982 and 1983. Kumari is the daughter of Virbhadra Singh, a Congress stalwart and former chief minister of Himachal Pradesh. Mohanty’s father, Jugal Kishore Mohanty, was the chief justice of the Sikkim high court. This demonstrates that the Indian judiciary’s narrow social base has not only been replicated in the Lokpal, but also fits the phenomenon of what sociologists call “elite self-recruitment.” This theory holds that among a group of equally talented competitors for jobs, those who share the same lineage, class and social network as the recruiters acquire an edge over others.

This is not to suggest that the nine Lokpal members will be partial in their conduct. Yet, the trite maxim, “Not only must justice be done; it must also be seen to be done,” is as applicable to the working of Lokpal as it is to the judiciary.