Rekha Pappu, M. Madhava Prasad, K. Satyanarayana & Susie Tharu

Reservation was a constitutive necessity for the Indian Republic. Affirmative action was an altogether different political gesture.

THE SUPREME Court's recent ruling in the case of M. Nagaraj & Others vs. Union of India & Others marks another significant moment in the long and stormy debate on reservation. The elaboration provided by the Constitution Bench on questions of discrimination, backwardness, affirmative action, and "creamy layer" is of critical importance. Among the many reasons why this is so, three are worth mentioning here. One, the ruling explicitly recognises and addresses itself to the polarisation of caste interests within our society rather than reiterating the worn-out slogan of a homogenous society. Two, it draws upon a terminology that currently dominates discussions not only in the courts but also among policy-makers, academics, and mediapersons. Three, it more clearly than ever before legitimises the grievances of the "upper castes" even as it seeks to checkmate the pro-backward caste moves of Parliament.

The contending claims of the forward and backward castes on a range of issues crystallise in important ways around the question of reservation. The extreme polarisation of positions between these groups suggests the failure of social revolution, wherein annihilation of caste has not been accomplished. Instead we have a situation where the "upper castes" believe that only the "lower castes" are stuck with a pre-modern identity while they have transcended it. The Court's ruling too seems to endorse this belief when it suggests that excessive reservation would have the effect of discriminating against the socially advantaged classes. Thus, in an ironic reversal of years of discussion both within the social justice as well as the political framework, discrimination is now regarded as a problem that the "upper castes" have to grapple with. Within this schema, what continues to be conceded to the "lower castes" is their deprivation or "backwardness." Here, the court's approach reflects the increasingly observable shift in the discourse on caste-based reservation, from the idea of discrimination to deprivation.

Simultaneous with this shift in emphasis from discrimination to deprivation is the terminological obfuscation of using "affirmative action" as an equivalent for "reservation." It is interesting to note in this kind of slippage that the United States' approach to "voluntarily" righting the historical wrongs of slavery has provided a universal concept affirmative action of which the Indian approach is now being seen as a particular instance. This in spite of the fact that reservation in India emerges out of a challenge to national sovereignty claims, predates affirmative action by several decades, embodies altogether different political proposals, and represents the interests of a demographic majority. If we are not to lose sight of the unique political situation in which reservation was adopted as a solution to an otherwise intractable problem, it is extremely urgent that we clarify for ourselves the difference between this and the American policy of affirmative action. (Let us not forget that reservation includes reserved constituencies, which the detractors curiously do not seem much exercised about.) Words are weapons of struggle, and the increasing resort to "affirmative action" is part of a move to erase from memory the political origins and significance of reservation in India.

A number of historical circumstances made it possible for white Americans to constitute themselves into a nation of equals excluding the African-American slaves and the Native Americans in the first instance. As the U.S. model evolved beyond its 18th century origins, it subsequently, and quite belatedly, took note of these groups through affirmative action and other measures. The political initiative of emancipation came first and was only much later followed by affirmative action as an economic provision. By placing the responsibility for change on ethical (as against legal) action of the dominant majority, affirmative action effectively deprives African-Americans of hold over a political demand made in the context of the powerful civil liberties movements of the 1960s and 1970s. On the other hand, when India was binding itself to a Constitution and parliamentary democracy in the mid-20th century, blatant exclusions such as in the original U.S. model could not be made without risking its very legitimacy. Citizenship had to be universal in order to be real. Thus reservation was a constitutive necessity for the Indian Republic. Affirmative action was an altogether different political gesture. In the U.S., the political majority and its identity as a nation were not fundamentally under question. For the same reason, while the success or failure of affirmative action can and has to be evaluated statistically, the same cannot be said for reservation whose function is primarily political-constitutive and social-symbolic. In terms of sheer numbers too, the Indian situation is vastly different from the American one. Affirmative action in the U.S. is meant for a numerical minority whereas in India the sections contending for the provision of reservation were and are a numerical majority.

Thus, in America, the entry of blacks into the public domain as free citizens was not an event of the revolution, it was a post-revolution event. The social contract was not re-negotiated, it simply acquired a supplementary spirit of inclusion which it was up to civil society to implement. In India, on the contrary, reservation was not extended to a particular community by an already revolutionary state; rather it was the foundation, upon which the nation-state was constituted by producing the effect of a potentially homogeneous population or a "people" in the modern sense.

Disentangling the form and function of reservation from that of affirmative action (while also being mindful of the discursive split between discrimination and deprivation) will further help us in engaging with the question of the "creamy layer," whether for the Scheduled Castes, the Scheduled Tribes or the Backward Classes. It is curious that the idea of reservation based on economic criteria holds such appeal for the intelligentsia and the judiciary. There is no instance, however, of such positive discrimination based on economic criteria anywhere in the world. This follows from the simple reasoning that a state which intervenes in the gap between the rich and the poor is usually a welfare state or a socialist state whose goals and procedures are different from the goals for which reservation is meant. In such a state, the poor are not a marginalised community but an economic class. The "lower castes" in India on the other hand are marginalised communities. The provision of reservation in fact testifies to the existence of different and hierarchical communities within a nation that claims to be "One" and seeks to function as such. It has to be reiterated strongly that reservation is justified by the persistence of caste-based discrimination and the failure of the hegemonic project of producing an identity that transcends caste.

As part of the state's will to integrate the communities, it has in its constitutive moment required the provision of reservation and has built upon it over the years to produce and foreground a discourse of backwardness in relation to the "lower castes" even while disavowing caste publicly. Already implicit in this discourse of backwardness is the criterion of economic lag, which is now the focus of discussion about reservation. Contestation over this interpretation by the state emerges from the dialectic of qualitative and quantitative criteria. Different sections of the nation-state have been asserting the importance of qualitative differences, the reality that many communities co-exist but remain unreconciled with each other. However, the state in its response, while minimally acknowledging qualitative differences, tries to contain the assertion by giving it a quantitative legibility. The conflict between the insistence on qualitative community-based reservation and the state's move to push it in a quantitative direction based on measurable indices is a symptom of the unfinished social revolution. The divergence of perceptions among the constituent communities about the nature of Indian society is so vast that any consensus seems inconceivable in the present circumstances.

What is interesting about the present moment is that the claim made by different sections of the people regarding qualitative differences is finding a sympathetic response from within Parliament as well. The Supreme Court's ruling on reservation is being read as yet another instance of the growing confrontation between Parliament and the judiciary. The fact that Parliament and the political parties have in the past few years acknowledged the need for reservation but have been variously checkmated by the judiciary derives also perhaps from the changing caste composition of Parliament as against the unchanging domination of the judiciary by the "upper castes." No wonder then that the judiciary is increasingly being perceived by the phantom majority of the "upper castes" as the one that will save the nation, a fallback on the slogans that emerged from "upper caste" groups during the anti-Mandal agitation. This renewed debate on reservation therefore needs to be read as a moment in which the interests of all the different groups are being clarified yet again, perhaps in bid to renew a social contract, more than 50 years after it was adopted, on terms that are not entirely dictated by the dominant community.

(The writers are members of the Hyderabad-based Tarnaka Study Circle.)