There is unquestionable value in a general policy of reservation because it attacks caste-based inequities that have proved so damaging to our society; but through an ever-expanding scheme of reservation, we have lost sight of what our aims were in the first place

The Bharatiya Janata Party’s election manifesto, released on April 7, 2014, and its opponents’ reaction to the proposal, exemplifies the level of political debate in India today. In spite of an element of truth in claims that the manifesto is an impressionist’s version, the document nonetheless departs on certain crucial, philosophical issues. But, such is our reluctance to engage on matters of first principle that these departures are rarely, if ever, contested with anything resembling an intellectual vigour. Take, for instance, the issue of reservation. While the Indian National Congress and most other political parties have proposed detailed policy measures, including the prospect of reservation for Scheduled Castes (SC) and Scheduled Tribes (ST) in the private sector, the BJP’s manifesto is curiously silent on the issue. Even the promise contained in its 2009 declaration to introduce reservation for the economically weaker general class finds no mention in this term’s version. It is likely that this decision is a product of electoral strategy. But its failure to clarify its vision is nonetheless symptomatic of a larger malaise in the Indian political sphere: a mistrust of debate subsumed by core issues of moral concern.

Arguments on reservation

The Congress’ response is also familiar: the manifesto’s silence on reservation, according to the Finance Minister P. Chidambaram has been designed to “poison” voters with a majoritarian approach. If pressed further, Mr. Chidambaram ordinarily would tell us that affirmative action is not necessarily irreconcilable with merit. Yet, what he will not tell us is why the Congress’ approach to reservation is, in the party’s belief, the only means to fulfil the fundamental right to equality. And, he will also not tell us what the Congress intends to achieve through its reservation policies: are they aimed at ensuring more than mere formal equality (which would ensure that all castes achieve equal status) or are they a means to one day achieve a society that is completely rid of the caste system?

The BJP’s prime ministerial candidate Narendra Modi’s answer to questions of whether there ought to be reservation along caste lines is similarly devious. He sings the same tune/s that he uses to counter any issue of economic inequality. According to him, the development and growth of the economy will bring with it a concomitant rise in both educational and employment opportunities, making the question of any community seeking reservation moot. But both Mr. Chidambaram’s claims about merit and Mr. Modi’s arguments about development skirt the real issue.

It is a matter of well-chronicled fact that the social and economic inequities prevalent in Indian society transcend ordinary conception. Any reasonable thinker would tell us that, as a matter of duty, our country’s resources ought to be dispersed evenly across all classes. But the argument on reservation, today, as evinced by Mr. Chidambaram and Mr. Modi’s public statements, is no longer about such considerations. The questions, therefore, are: how did we get here, and what do we do now?

Expanding reservation policy

At its inception, the Constitution envisaged very limited reservation. Articles 15 and 16, which today occupy the bedrock on which our entire policy of affirmative action rests, were meant to entrench a system where no discrimination was permissible on grounds of race, religion, caste, etc. Even clause 4 to Article 16, which permitted reservation in public employment for any backward class of citizens, was viewed as subservient to larger goals contained in clauses 1 and 2. Any such programme for reservation justified under Article 16(4) had to be shown to further the objective of ensuring equality of opportunity to all citizens. But over time, the original philosophical outlook toward affirmative action has waned.

Now, as a matter of a very specific policy of the state, not only are backward classes of citizens often identified solely on the basis of their castes, but reservation has also stretched well beyond the realm of public employment, at its first instance. These actions of the State have been brought forth either in response to particular, contrarian judgments of the Supreme Court, or in furtherance of judgments supporting the state’s larger outlook, according these programmes a constitutional sanction.

When the Supreme Court in State of Madras v. Champakam Dorairajan (1951) struck down a government policy seeking to arrange admission to engineering and medical colleges based on divisions of caste and religion, the government’s response was to amend the Constitution. Article 15(4) was introduced to allow the State to make special provisions for the advancement of socially and educationally backward classes of citizens or for the SCs and STs. Yet, this amendment did not produce an immediate change in the Supreme Court’s thinking. The court continued to hold, as it did for example in M.R. Balaji v. State of Mysore (1963), that policies of reservation are exceptional measures, requiring strict constitutional defence. It also ruled that classification of backward classes of citizens could not be based solely on the caste of the citizen; such policies, wrote Justice Gajendragadkar, might “contain the vice of perpetuating the caste themselves.”

However, in 1975, the Supreme Court finally acquiesced to the state’s ever-expanding reservation policy. In a judgment that would have widespread consequences, the court ruled that Article 16(4) wasn’t as much an exception to the general rule contained in clause 1, as it was an integral component of the right to equality, properly understood (State of Kerala v. N.M. Thomas). In other words, Article 16(1), it was held, permitted classification on the basis of caste to achieve its broad goal: equality of opportunity for each citizen, as an individual. This was further validated in Indra Sawhney v. Union of India (1992), by a nine-judge bench, which ruled that the Constitution permitted backward classes to be identified on the basis of caste. In so holding, the court provided the government the jurisprudential basis for formulating sweeping policies on reservation.

Through a series of constitutional amendments, beginning in 1995, Parliament allowed the state to make provisions for reservation in matters of promotion to SCs and STs, to carry forward any vacancies created through a failure to fill-up the reserved category from one year to the following year, and to provide specially for Other Backward Classes or SCs and STs in matters of admission to educational institutions, including in private institutions. Each of these amendments and the laws made to enforce their aims (including reservation in favour of the so-called “other backward classes”) was challenged at various stages before the Supreme Court. But, the Supreme Court, after providing Parliament the legal justification for its general policy on reservation, could not now strike down the laws that emanated as a consequence.

Political discourse vs. debate

Apart from holding these amendments to be in consonance with the Constitution’s basic structure, the court also ruled in these cases that the laws made in furtherance of these amendments, including the identification of Other Backward Classes on the basis of caste, were valid. What’s more, it found the doctrine of creamy layer, which, in principle, disallowed benefits applicable to certain groups based on their economic status, which they would have otherwise been entitled to as members of a certain caste, as inapplicable to SCs and STs. These decisions, in M. Nagraj v. Union of India and Ashoka Kumar Thakur v. Union of India, are a product of a sustained change in the court’s jurisprudential thinking on the subject. But it ought to be asked: how does the exclusion of SCs and STs from the doctrine of creamy layer fit with the purported objectives?

Unfortunately, neither the Supreme Court nor our Parliamentarians are willing to engage with these fundamental issues. There is unquestionable value in a general policy of reservation because it attacks caste-based inequities that have proved so damaging to our society; but through an ever-expanding scheme of reservation, we have lost sight of what our aims were in the first place. We, therefore, need to address the debate at a more basic level.

We need to ask ourselves, once again, whether it is equality of opportunity that we strive for, or whether we want to rid our society of the caste system. If indeed the reservation policies are aimed at achieving both these ideals, we ought to be shown proof of how the present policies are working. If Other Backward Classes have to be equated with SCs and STs, the state ought to empirically prove why the doctrine of creamy layer should be applicable to the former and not to the latter, and how such thinking links to the larger goal of ensuring a supposed equality of opportunity. We also need to ask ourselves whether these policies, as Justice Gajendragadkar suggested in 1963, have the effect of perpetuating the caste system.

Regrettably, our political discourse appears unsuited for genuine debate on such questions. If the BJP supports a change in policy, it is its bounden duty to tell us what such new policy would be, and why it would work. If the Congress believes its present policy is effective, it ought to show us how the policy fulfils the Constitution’s ideals. Instead, we are left meandering in the politics of quota and merit. Our most ingrained social inequities are, in the process, further entrenched. And as a result, the abstract ideal of equality, which the Constitution guarantees, continues to wither toward insignificance.

(Suhrith Parthasarathy is an advocate in the Madras High Court.)

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