Changing contours of reservation policy in India

In this article…

Thomas Reid, a Scottish philosopher, in his work rightly said that the weakest link of the chain is as important as the strongest one. In his words, “A chain is no stronger than its weakest link”. It means the weaker section of society needs protection to maintain social cohesion. The state can protect weaker sections through affirmative action. Similarly, John Rawls in his book “The theory of Justice, 1974” said that “Justice is the first virtue of social institutions as truth is of systems of thought.” Thus, in order to establish a just society, a kind of positive discrimination in the face of reservation inevitable.

In India, reservation policy traces its origin back to the Poona pact (1932) agreed upon between Mahatma Gandhi and Dr. Ambedkar. In this pact, India was deemed to be a casteless nation in the coming future with the help of reservation policy and substantive equality. Apart from this, it was aimed to ensure the representation of the unrepresented section of society. Along with this, it was seen as a part of the national building where India’s integration is finalized through social justice addressing historical injustices. It has definitely brought the disadvantaged section into the mainstream of society where people rarely discriminate.

However, over the period of time, society as well as the economy has been changing in India. For instance, after adopting neo-liberal policies through LPG reforms, India is no more an ‘over-developed’ state. Since LPG reforms, the pace of urbanization is increased. In an urban area, caste and religion hardly matter for people having lunch or dinner in a hotel. Similarly, the nature of the job is also changed due to neo-liberal policy where the role of the private sector became important. Thus, the contour of reservation policy has continuously been changing in India.

Changing contour of reservation in Indian politics

From the prism of politics, the ‘Congress System’ (dominance of congress in Indian politics) has not utilized the ‘role of caste’ much in electoral politics because of the freshness of independence and the stature of pundit Nehru. After the end of ‘the Congress System’, political chaos was witnessed where caste became an important factor for the student leaders, who participated in the J.P. movement. At the end of the J.P. Movement, ‘mobilized’ people became leaderless. They were bifurcated – one goes for ‘Mandal’ and another ‘Kamandal’. Mandal politics laid the foundation of ‘casteization of politics’.

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From this onward, debate related to the ‘role of caste‘ became significant. At the same time, regional parties emerged in Indian politics and more or less caste become the mean of their emergence. For example, RJD and JDU in Bihar, SP, and BSP in UP. Political scientists like Yogender Yadav calls this event a “democratic upsurge” while others criticized it for pushing “development politics” at the backseat. After the 73rd and 74th Amendment act 1992, the role of caste was re-affirmed constitutionally again where the reservation was extended to SCs and STs as per their population.

Similarly, 73rd and 74th amendments gave one-third of the reservation to women in panchayats and municipalities. Subsequently, similar demands were made for parliament as well. In 2010, it was passed in the Rajya Sabha and transmitted finally to the Lok Sabha. However, the Bill lapsed with the 15th Lok Sabha. Since then, it is in the cold bag. Apart from caste and gender, the religious basis for reservation also became strong when the Kundu committee was constitution after the Sachar committee. It recommended giving reservations to Muslims who are converted from STs and SCs to Muslims.

Evaluating income-based reservation: Caste Vs Class

EWS reservation raised a debate for affirmative action for poor people in other castes as well to ensure equity. But its counterpart claims that reservation is not a poverty alleviation program. It is about ensuring the representation of the unrepresented section of society. However, Indira Sawhney clarified that caste is not antithetical to class and caste is the sole criterion for the reservation. But, in the EWS case 2022, it objected to this view and held that reservation is instrumental not just for the inclusion of socially and economically backward classes into society but also for disadvantaged classes.

It is also argued that there is a high probability of ‘ghost beneficiaries in the case of income-based reservations. We have been witnessing ghost beneficiaries availing of BPL cards in the case of food subsidies. It may lead to the race of becoming poor to avail of these benefits in the coming future. However, it would be easy for the people to claim economically backward. But the same is not true in the case of caste due to societal pressure. It is directly linked with the identity of the people. Thus, income basis may divert the limited resources to the wrong beneficiaries.

Moreover, the ‘economic basis for reservation’ was challenged in court on three major points – (1) Can the ceiling of reservation be increased from 50%?, (2) Can EWS reservation exclude SCs, STs, and OBCs?, and (3) Can the economy be the sole basis for reservation? Supreme court with 3:2 majority in 2022 upheld the EWS reservation. It answered that the 50% rule formed in the Indira Sawhney judgment in 1992 was “not inflexible”. It also upheld the exclusion of STs, SCs, and OBCs because the special provisions have already been provided in Articles 15(4), 15(5) and 16(4) form a separate category.

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‘Creamy layer’ and ‘efficiency’ debate in the reservation

Supreme Court of India has made the “creamy layer” mandatory for OBC reservation in the Nagaraj case. The same is debated to include this in STs, and SCs, reservation domain. A section argues that once a family becomes prosperous economically, then there is no need for affirmative action for the children. While the counterargument says that there is no study that claims that ‘economic prosperity’ leads to ‘social upliftment’ in society. However, there are some examples that negate the proposed arguments.

For instance, a helping hand in up refused to serve water in general glass since the IAS officer belongs to a lower caste. Here, an IAS may get representation and become economically prosperous. But the “societal lag” is still prevalent. Similarly, the National Commission for SC chairman, P L Punia was once denied entry into a temple in Orissa in 2011. Apart from it, there is also an issue of ‘a class in caste’. It means that economically well-off people belonging to lower castes often discriminate against the people belonging to their class itself.

Apart from the creamy layer, there is also a debate related to the effect on ‘efficiency’ due to the reservation policy. Nagraj Case 2006 mandates that ‘a reservation policy shall not affect the overall efficiency in the administration. A study was conducted by prof Ashwini Deshpande on the Indian railway, having the largest public employer with respect to the impact of efficiency on the workforce. She concluded that it did not reduce productivity but in fact raised productivity. In 2022, Justice Chandrachud reaffirmed that ‘efficiency’ has more to do with action taken rather than the selection process.

New debates in reservation in India

First, reservation in promotion is also one of the contested concepts with respect to reservation policy in India. Supreme Court in Indra Sawhney case struck down reservation in promotion for STS and SCS. Later, the Nagaraj case restore reservations in promotion in 2006. Uttarakhand govt Case 2020 says that reservation in promotion is not a fundamental right. Counter-arguments justified that discrimination still exists at the employment level. Also, there is a glass ceiling effect that prevents people from lower caste to reach the top level.

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Secondly, Since the LPG reform in India, job availability has continuously been decreasing in the public sector. Privatization of the Indian economy has led to job creation in the private sector. Political scientists have been claiming that ‘social justice’ has been compromised due to neo-liberal economic policies. Thus, there has been a demand for reservations in the private sector too. For instance, the Haryana government has ordered that the law provides for 75% reservation for locals in private sector jobs. It is questioned for introducing a policy of “sons of the soil” and violating the fundamental right to work in any part of India.

Thirdly, the World Bank report says that women’s reservation in panchayats has increased the bargaining power of women in the personal sphere too. Traveling from panchayats and parliament, gender-based affirmative action also asks for reservations for about transgender. NALSA judgment 2014 recommended reservation to the transgender community. However, the Transgender Persons (Protection of Rights) Act, of 2019 is silent on this question. In 2022, Justice Chandrachud reaffirmed that ‘efficiency’ has more to do with action taken rather than the selection process.

In conclusion

Regarding the nature of the reservation, the supreme court has confirmed that reservation can’t be continued on a permanent basis. But the recent demand for Jats in Haryana, and Pattidars in Gujrat again raised questions to revisit reservation policy. There is a race among communities horizontally and vertically for the reservation in India. But we have to keep the objective of reservation in mind that we are going to create a ‘casteless nation’ instead of a ‘caste-based nation’. So, it should produce more light than heat. Proper evaluation of reservations should be conducted periodically.

Thus, reservation definitely ensures representation, justice, participation, and equity but it is not a panacea for the development of all. Government must focus on capacity building by increasing spending on health, education, and research and development. Indeed, the reservation policy has contributed to the social revolution in India. Consequently, Thomas Piketty in his book “Capital and ideology” claims the ratio of income of Dalits to upper castes is more than that of black Americans to white Americans, thus praising India’s reservation policy.

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