Despite receiving scant parliamentary attention, the constitutional amendment on promotion quotas in public employment has generated considerable public argument. Anup Surendranath’s piece in The Hindu (editorial page, >“Winning the case for promotion quotas,” September 6, 2012 ) is a fine attempt at highlighting the legal questions this controversy involves. Unfortunately, however, like much of the widespread discussion, it fails to illuminate the central constitutional principles and normative commitments that are at stake.
The present controversy is not one about the desirability or legality of affirmative action per se. Our Constitution explicitly permits certain forms of affirmative action, and it has always been a public policy choice that enjoys extensive support. In a country with as acute forms of backwardness as ours, things should hardly be otherwise. The more difficult questions relate to the varying motivations for affirmative action in different sectors (education, public employment) and the criteria through which we identify beneficiaries (caste, religion, economic status, and so forth).
In a significant decision on reservations, Indra Sawhney (1992), the Supreme Court generously endorsed the use of caste to determine backwardness, though caste could not be the sole factor. Deference to the state on the determination of backwardness continued in later cases, as the Court permitted the same treatment for Other Backward Classes (OBC) and Scheduled Castes and Scheduled Tribes (SC/ST). But Indra Sawhney made two important normative points. The first was the 50 per cent cap on reservations, ground in the rationale that backwardness does not exist in the abstract; it depends on the average on society. Second, the Court held that reservations in public employment could only exist at the entry level. The reasoning was that reservations exist to create a level-playing field, to remedy unequal starting positions, thereby removing the justification for promotion quotas.
The Constitution was amended thrice to change this, to provide not only for reservations in promotion but also for consequential seniority on that basis. What this means is that a person gets promoted through reservations, then claims to be senior on the basis of that promotion for the purposes of a further promotion, and this continues indefinitely. In U.P. Power Corporation (2012) the Court followed M. Nagaraj (2006), in holding that, for promotion reservations, the state must show backwardness, inadequacy of representation, and the maintenance of efficiency in public administration. Surendranath finds these requirements problematic, and it is worth addressing them.
For Surendranath, imposing conditions to be a beneficiary are incorrect because they demand more than caste. But, as with all judicial doctrines, this is a measure to temper the potential for legislative arbitrariness and legislative capture by specific in-groups. The Court permits the use of caste to determine backwardness but it also recognises the immutable character of caste — it cannot change however much one advances, socially and economically, in life. Why should a person of a low caste, having advanced, be considered backward? If no further inquiry is warranted beyond identifying caste, then how do the socially and economically backward members of lower castes ensure that, absent judicial intervention, their benefits are not taken by lower caste members who are no longer backward?
What does it really mean, asks Surendranath, to speak about efficiency in the context of a railway ticket inspector, an IAS officer, a Group D employee and a nuclear scientist? But in his choice of examples, he betrays the fact that the diversity of these positions yields rich and varying understandings of efficiency, so, pace Surendranath, Nagaraj might have been right after all in asking the state to satisfy this criterion. The decision strives to potentially balance profoundly important objectives — we may feel that efficiency is a relatively less important value compared to ensuring diversity across the ranks of railway inspectors whereas nuclear scientists might alter that equation, pardon the pun.
Most seriously, though, Surendranath’s analysis ignores the crucial constitutional principle at stake here: equality of opportunity. Reservations seek to remedy unequal starting positions, but once introduced in promotions they do the inverse: they treat equals unequally. The principle now becomes not equality of opportunity but equality of outcomes, something which our Constitution explicitly rejects. It rejects this for a reason that Ambedkar, who spoke more articulately about caste than most have managed, well understood. To tell a person belonging to a low caste that even once opportunities are equalised, he can still not advance and can still speak only through his caste, is a profoundly demeaning if not totalitarian idea. Some commentators have asserted that this equalising argument is falsely premised, because they argue that SC/STs are not present in the higher echelons of the bureaucracy. This argument uses the equality of outcomes to test the equality of opportunity. But it suffers from a fatal logical fallacy: if outcomes indicate, as it is argued they do now, that equality of opportunity is not met by entry-level quotas then the necessary logical response has to be to improve access to opportunities rather than to fix outcomes. The current proposal does the reverse. It performs the easy task of manipulating outcomes rather than the hard work of addressing opportunities. Ambedkar wanted to make possible a world in which opportunities would not prevent lower castes from rising. By moving from opportunities to outcomes, we have betrayed that promise and denied to them that dignity.
(Madhav Khosla is at the Department of Government, Harvard University, and author of The Indian Constitution, Oxford University Press 2012).