The Hindu : Reservation for all?

Online edition of India's National Newspaper
Friday, Jun 13, 2003

Opinion

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Reservation for all?

By Rajeev Dhavan

Any `class' designated for uplift through reservation must suffer both `disadvantage' and `discrimination'.

THE PURSUIT of equality has been hijacked by politics to become the pursuit of votes. India's reservation policy was designed to make `unequals' equal — not to open the door to every demand for preference by all or any community. In the past few weeks, the Rajasthan Government has been seeking support for 14 per cent economic reservation for the `upper' castes. The BJP supports quota for the `poor' in addition to the reservation for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. In Delhi, seven more castes have been added to the OBC list. The Congress has hinted at reservation in the private sector. The Prime Minister, Atal Behari Vajpayee, has promised an "expert commission" on the "economically backward" not covered by the existing reservation. Others have offered reservation for poor Muslims. The Delhi University has opened up 5 per cent reservation for the talented in sports, music, drama and the like. This "backward-forward" dance led a perplexed ILO to make the understatement that India's affirmative action system is "very complex". The Pandora's box is to be reopened. Is India's polity being "mandalised" in the name of social justice or vandalised by party politics?

India's reservation policies of affirmative action are partly ex-colonial and partly for social justice. Colonial reservation was directed towards dividing the spoils among all the communities (communal reservation). This was abandoned on June 16, 1949, when the Constitution-framers opted for a common electoral roll. The "social justice" reservation policy sought to bring the "real disadvantaged" into the mainstream — for education, jobs and electoral representation (backward class reservation).

Communal and social justice reservations are fundamentally different. In 1951, the Supreme Court made it authoritatively clear that communal reservation was simply not on. But, who are the backward classes? Justice Krishna Iyer pointed to the "super-classification" in the Constitution which made the SCs and the STs the real target of affirmative action — with the OBCs as lesser favoured. Jawaharlal Nehru and Indira Gandhi ensured that the Central Services showed preference only to the SCs and the STs — until the bubble burst with the Mandal controversy of 1990-92 which flooded in the OBCs (already omni-present in various States). Now, 10 years later, it has led politicians to convert `reservation' into patronage, and put anyone and everyone in the OBC list. In return, the Mandal phenomenon changed the politics of the north to destabilise the politics of India.

Not against reservation, whilst arguing for the Ezhavas in the Mandal case (1992), I supported creating opportunities for the `disadvantaged' and to enable them to share state power. But reservation has become excessive. There is 80 per cent reservation for many posts and services. That is why I argued for a cap of 18-22 per cent on reservation for the SCs and the STs in the Sabharwal case (1995) and denying extra or accelerated seniority outside the reservation process in the Ajit Singh case (1999). Parliament amended the Constitution by the 77th Amendment (1995), the 81st Amendment (2000) and 85th Amendment (2001) to strengthen the SC and the ST reservation in promotional posts at all levels. These matters are before the Supreme Court. Even the Constitution has been forced to become a toy to yield to political pressure.

The present controversies do not concern the SCs and the STs but pertain to the OBCs. The Constitution itself uses the word "backward classes" for Government jobs in Article 16(4); and for the "socially and educationally backward classes" for all other avenues, benefits and opportunities in Article 15(4). Thus, job reservation can be on a wider basis — although both forms of affirmative action have tended to follow the same classifications. Can the OBCs include anyone and everyone? The political answer to identify the beneficiaries of affirmative action seems conveniently wider than the constitutional dispensation.

After 1951, it was clear that the OBCs could not include `communal' representation. In 1963, Justice Gajendragadkar produced a hopelessly eclectic criterion which was an open invitation for politics to plunder the reservation policy. In 1964, Justice Subha Rao advised purely economic criteria. In the 1970s and 1980s, the Supreme Court treated the OBCs as roughly being like the SCs and the STs — but less so. In the same period, in various cases from Uttar Pradesh, Kashmir and other States, the Supreme Court denied reservation to purely rural categories or generally "backward regions" — unless they were properly vetted by commissions for determining their backwardness.

The Mandal case provided a kind of watershed. Silencing critics who said that "caste" could not be a basis for reservation, the emphasis in the majority judgment (6:3) was that "social backwardness" was complex and could include caste. But when dealing with pure economic categories, there is a throwaway passage in Justice Jeevan Reddy's majority judgment which says: "Indeed, there may be some groups or classes in whose case, caste may not be relevant at all. For example, agricultural labourers, rickshaw pullers/drivers, street hawkers, etc., may well qualify for being designated as backward classes''. We are but a short distance away from reservation on the basis of economic criteria for any class of poor. So, reservation for all?

Somewhere in all this, the constitutional purpose of `reservation' has got dangerously lost. The twin basis for India's affirmative action is both `disadvantage' and `discrimination'. Many people and communities may suffer a disadvantage. This could include 50 per cent of India's one billion people, of which some 350 million or so live below the poverty line. But, the SCs and the STs were included for reservation because they also suffered endemic discrimination that manifests itself as atrocity, rape and purposive deprivation in ways that are horrible. We need to remind ourselves of the stories of Dalits in Tamil Nadu being forced to eat faeces in 2001-02. That is why Justice Krishna Iyer spoke of the SCs and the STs as part of the `super-classification' and the main beneficiaries of reservation policies. But, the flip side of this `super-classification' cannot be a `free-for-all' to cover all those presently favoured by the parties in power. The OBCs were those who were similarly `disadvantaged' and `discriminated' against as the SCs and the STs. As the Mandal judgment rightly points out, there were discriminated castes among Muslims who were also OBCs like their Hindu counterparts. But, neither the Constitution nor the courts have permitted a random increase of OBCs on the basis of income or occupation. Further, reservation beyond 50 per cent is impermissible. Soon, any class which is politically described as OBC will benefit from the patronage of reservation without reference to the social justice aims of the Constitution.

The test for defining an OBC cannot simply be what an expert commission decrees as OBC. The Mandal decision did not permit every smoke-screen device to create OBCs. The economic criterion cannot be income alone. Half of India would be included. Nor can it be only occupation. There is no limit to such inclusions. Any `class' designated for uplift through reservation must suffer both `disadvantage' and `discrimination'. Many `upper' castes may suffer `disadvantage', but unlike Dalits they do not suffer `discrimination' and atrocities because of their caste.

Today's politics of reservation follows the quest for electoral victory, not social justice. An already divided nation on many fronts will be cleaved and pared into competing groups on an unparalleled scale that will make the Mandal controversy seem like a wisp of smoke.

India's affirmative action was designed for the SCs and the STs and those similarly situated — not for those with political connections. If this goes further, India would be well advised to limit its reservations to the SCs and the STs.

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