IIBy Pratap Bhanu Mehta
The announcement of 10 per cent reservation for economically backward groups in the upper castes is another example of the travesty that characterises constitutional and political discourse when it comes to reservations. It is cynical politics. It is cynical policy.
There are two realities India faces. This proposal has one element of honesty in it. It admits this government’s massive failure on every front. The stark reality is this. The Indian economy is not generating enough attractive jobs; nor is our education system training graduates properly enough to participate in the economy. In the context of that failure, there has been a clamour amongst the educated upper caste groups like Rajputs for a reservation route to be opened up for them. Since we cannot create enough jobs, the token signal that the poor from the upper castes can be symbolically represented in the state is all that we can now offer. This is in a context where public sector jobs are scarce. As Devesh Kapur has pointed out, per capita India now has fewer IAS officers than it did in the Sixties. Gone are the narratives of a buoyant economy lifting all boats. We are now back to distributing crumbs.
India needs effective forms of reservation or affirmative action, especially for Dalits. But our reservation policy, post Mandal, has more generally become a prime example of majoritarian politics, where the exigencies of politics and power rather than the ethical and moral claims drive entitlements. One of the biggest casualties of this move has been that the historical specificity of the experience of Dalits has been completely occluded. Every other group has managed to don the mantle of victimhood in the same way. The purpose of reservation has been stretched beyond combating discrimination and empowering the truly marginalised, (that is the only thing it does not do), to now an anti-poverty measure, a load it cannot bear. The idea that you can address economic deprivation through reservation is preposterous.
This measure is being enacted against this backdrop. But both the timing and content of this announcement smack of desperation. Some politicians like Nitish Kumar have been discussing this idea for a while. But to introduce a major constitutional amendment like this, a few weeks before elections, by a government that is struggling, is a political afterthought rather than a policy forethought. Like previous reservation measures, it does not allow for a full discussion of better alternatives, some of which might even be used to replace current OBC reservation.
The purpose of reservation has been stretched beyond combating discrimination and empowering the truly marginalised, (that is the only thing it does not do), to now an anti-poverty measure, a load it cannot bear. The idea that you can address economic deprivation through reservation is preposterous.
There have been a number of them: Rakesh Basant’s proposal of looking at parents’ education as the best proxy; or even JNU’s old deprivation criteria that allowed for an interesting play of inter-sectionality. What will be the economic cut-off? Let us say a pure economic criterion that pegs the cut-off for eligibility around Rs 8 lakh a year (close to the creamy layer exclusion for OBCs) is used. In some ways, if the idea is to reach the truly deprived, this criterion will be too generous. In short, the basic question — why should particular groups be brought under the ambit of reservation — will remain subject to irrationality.
The proposal has one small silver lining. One unintended thing it will do is remove the stigma of reservation itself. Reservation has historically been associated with caste. And often in our imagination there was a stigma that the upper caste put on those who had come through reservation. By including upper castes under the sign of reservation, it dissociates caste and the stigma of reservation. Upper castes can no longer resent Dalits and others for reservation. Dalit groups have been arguing this for a while; hence their support for this policy. But there are better ways of achieving this goal.
But this silver lining is overshadowed by the Pandora’s box this proposal opens up. It breaches the 50 per cent ceiling on reservations laid down by the Supreme Court. It is true that the rationale for the 50 per cent ceiling was not entirely clear; nor should it be sacrosanct. But it was an uneasy social compact that tried to strike the balance between two different ideas: That the legitimacy of institutions be measured entirely by their representativeness and the idea that identity should be irrelevant in determining whom jobs go to. It recognised the historical claims of Dalits and, more controversially, other backward castes, while keeping enough of a general structure open. If the 50 per cent ceiling is breached, we have straightforwardly moved to the idea that representativeness, based on criteria the state decides is all that matters.
If we have decided to introduce a constitutional amendment to expand the scope of reservations, what will happen to the OBC demand that has been articulated for a long time, that the 50 per cent ceiling should be breached to accommodate OBCs in proportion to their numbers? Why is the government, the argument goes, not releasing full caste data? There is an inherent escalating logic to this. If we are talking representativeness as such, which other groups should be included in its ambit? Should Muslims, the one group whose mobility is now lagging even more than SCs, come in via their sub castes or as a category in their own right? What about gender as a more potent axis of deprivation? VP Singh could not control Mandal, and this government should not assume it can ride this cynical ploy.
There will, of course, be other constitutional questions. Will a breaching of the 50 per cent ceiling, or the inclusion of groups that are economically, but not socially backward, pass constitutional muster? If precedent is any guide, it should not. One way or the other, this issue is going to deepen the crisis of the judiciary. If it caves in, it will be seen as pliant, overturning a hard-won constitutional settlement it had itself created. If it does not, the clamour will be to portray the Indian judiciary as an obstacle to greater social justice (which, in the case of reservation jurisprudence, will be unjustified). These matters cannot be discussed in conventional categories, because the Supreme Court itself has become so arbitrary. So the government is taking a bet that all conventional legal precedent can go for toss and it can get its way. That is how cynical politics has become.
It will be fascinating to see if any political party has the guts to speak the truth. Or will this be an all-party jumla? We seem headed for a politics that peddles illusions, and a constitutional culture defined by cynical social engineering, not any ethical principle of policy effectiveness.