The Supreme Court of India’s recent decision, upholding the constitutional validity of the law granting 10% reservation to Economically Weaker Sections (EWS) of the upper castes, has ignited much debate. Some pundits have affirmed the judgment marks the death knell of caste as a factor in reservation, while others argue that it underscores its perpetual relevance. In all the brouhaha, the media and the commentariat have overlooked another Supreme Court judgment just seven years ago which was potentially even more far-reaching for our democracy but which has been ignored entirely in the current debate.
In a 64-page decision in 2015, a bench of Justices Ranjan Gogoi and Rohinton F. Nariman struck down the United Progressive Alliance Government’s 2014 notification including Jats in the Central list of Other Backward Classes (OBCs). Most significant was the rationale the justices provided: they observed that the state should not go by the “perception of the self-proclaimed socially backward class” on whether they deserved to be categorised among the “less fortunates”; new formulae, they averred, must be found to determine backwardness. The issue, the justices concluded, was not whether reservations were a tool to address millennia of caste discrimination or an instrument of affirmative action; the issue was how to determine who deserved consideration for reservation benefits.
‘Open the gates for the most distressed’
Most significantly, the top court held that caste, while acknowledged to be a prominent cause of injustice in the country historically, could not be the sole determinant of backwardness. It argued in its judgment: “Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness.” It ruled that the State should uncover emerging forms of backwardness in an evolving society.
“The gates would be opened only to permit entry of the most distressed. Any other inclusions would be a serious abdication of the constitutional duty of the State,” the Court warned. It observed that “grave and important” decisions in reference to Article 14 and Article 16 of the Constitution must be made on the basis of “contemporaneous inputs”, which were not available. Most striking were the Court’s observations on what constitutes “social backwardness”. It said that neither educational nor economic backwardness, which the Government referred to, were enough, though both may contribute to social backwardness. “But social backwardness,” the Court observed, “is a distinct concept” that emerges from multiple circumstances ranging from the social and cultural, to economic, educational and even political.
Call for new methods and yardsticks
The Court conceded that caste may be a prominent factor for ‘easy determination of backwardness’, but its judgment discouraged “the identification of a group as backward solely on the basis of caste” and called for “new practices, methods and yardsticks” to be evolved. It added the observation that class may be a factor too, since a class is “an identifiable section of society”, but again it may not be enough to justify reservation. Citing its own decision to recognise transgenders as a distinct community with justiciable rights, the Court congratulated itself for identifying a form of social backwardness that had nothing to do with caste or class, in determining their eligibility for government benefits.
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This was fascinating philosophically, but it opened up a proverbial can of worms for policy-makers. The most contentious element of the Court’s judgment was its proposition that caste, and the need to right historical wrongs, is no longer sufficient grounds for government benefits. Nor is the self-perception of a caste that it is backward; not even the perception by other castes that it is. New methods, the judgment insisted, have to be developed to identify the backwardness of a group of people.
The Court, drawing a somewhat fuzzy line between ‘past’ and ‘emerging’ forms of backwardness, advanced the presumption of the “progressive advancement of all citizens on all fronts, i.e., social, economic and educational” making history an insufficient guide. You cannot keep citing historical wrongs and propose reservations as a solution to redressing them, the Court decided. This set off a conceptual bomb under the complacent edifice of the reservation system.
We have long accepted the logic of reservations in our country as a means of making up for millennia of discrimination based on birth. This is why the Constitution inaugurated the world’s oldest and farthest-reaching affirmative action programme, guaranteeing Scheduled Castes and Scheduled Tribes not only equality of opportunity but guaranteed outcomes, with reserved places in educational institutions, government jobs and even seats in Parliament and the State Assemblies. These reservations were granted to groups listed in Schedules of the Constitution on the basis of their (presumably immutable) caste identities. The addition of the OBC category — after the acceptance by the V.P. Singh government of the recommendations of the Mandal Commission — added more people to the numbers benefiting from reservations, but it did not change the basis on which they benefited: despite the “C” in “OBC” referring to “classes”, the OBC lists contained castes and sub-castes.
What criteria is the question
So we witnessed the unedifying spectacle of castes fighting to be declared backward: the competitive zeal of the Meenas and the Gujjars in Rajasthan to be deemed more backward than each other, and similar agitations by Patels in Gujarat and Marathas in Maharashtra. Then the transgender judgment, and the judgment disqualifying Jats, opened the floodgates to far-reaching questions. If caste is not a good enough basis, and class is not either, and now lack of education or income does not suffice, but the misfortune of being born transgender does, then how do we determine who deserves reservations in our society? The Supreme Court says historical wrongs are passé; the Government needs to establish that a group of potential beneficiaries is suffering backwardness right now. But it does not tell us what criteria to apply.
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Justices Gogoi and Nariman suggested that the Government come back with a “matrix” to justify reservations. One could imagine a list of differently-weighted categories, ranging from income, family situation, disability, education level, etc, in addition to birth in a particular caste, which together would constitute a basis to draw up such a matrix. But the Government, not wanting to touch a Pandora’s box, never came back with one, and the Court did not renew or repeat its demand either — not even when one of the judgment’s authors became Chief Justice of India.
With the EWS decision, the shadow of Pandora now hovers over the Supreme Court — but her notorious box may already have been opened by this dramatic, and surprisingly under-reported, judgment of 2015.
Shashi Tharoor is a third-term Member of Parliament (Congress), Lok Sabha, for Thiruvananthapuram, Chairman of the Parliamentary Standing Committee on Chemicals and Fertilizers, and the author of 24 books, including, most recently, ‘Ambedkar: A Life’