A quota of change: Madhav Khosla
October 22, 2008: The Indian Express
There is no small irony in India’s most famous Dalit calling for reservations for forward castes. ¶Social engineering¶ may be the driving force behind Mayawati’s recent promise of reservations for poorer forward castes if she becomes prime minister; but the plan itself requires legal innovations unprecedented in recent political memory.
Reservations in India have conventionally been justified by the need to remedy historical imbalances. Discrimination over generations towards certain sections of society translates, it has been argued, to the lack of access towards education and employment. The focus on caste as a yardstick for the identification of beneficiaries has been one of the central themes in Indian reservation policies. In the recent Supreme Court decision (in the A.K. Thakur case) upholding OBC reservations,Justice Dalveer Bhandari lamented that Indian reservation policy had failed to adopt economic factors as an index. Mayawati, it seems, is on a mission to change just that.
Mayawati’s pledge – which has previously been made by Lalu Prasad Yadav and the Left – may thus be a harbinger of more refined reservation policies in India: those that shift the focus from solely caste-based considerations to economically-driven factors. Mayawati has not elaborated on the legal details that her promise entails; so let me do that for her. Article 38 of the Indian Constitution enjoins the state to minimise inequalities in income, and eliminate inequalities in ¶status, facilities and opportunities¶. Article 46 requires the State to promote ¶the educational and economic interest of the weaker sections of the people¶. Since articles 38 and 46 are mere ¶Directive Principles of State Policy¶, they remain unenforceable. But enforceability is distinct from significance; the provision lends support to state action aimed at addressing inequality.
Articles 15 and 16 of the Indian Constitution enable the State to enact provisions supporting preferential treatment for pre-defined categories of beneficiaries. Article 16 focuses exclusively on public employment, whereas article 15 may be used for the purposes of both education and public employment. Under Article 15(4), the State may make ¶any special provision¶ to benefit ¶socially and educationally backward classes¶ or SC/STs. If Mayawati’s proposal seeks to rest on the enabling provisions of article 15, the poor forward castes in question must be categorised as either ¶socially and educationally backward classes¶ (or SC/STs), a proposition that appears implausible at best. Social backwardness is tied to some form of social discrimination. In R. Chitralekha’s case (1964), the Supreme Court confirmed that caste determines social backwardness. Forward castes are, by definition, not social discriminated against. In Indra Sawhney (1992), the Supreme Court emphasised that reservations under article 16 requires social backwardness in addition to economic backwardness.
Hence, unlike reservations for OBCs, SCs, and STs, it is unlikely that reservations for poor forward castes can find support in articles 15 or 16: Mayawati will require an alternate legal route.
What could that be? For reservations for poor forward castes to be permissible, they would have to be accommodated under article 14 of the Indian Constitution. As per article 14, ¶The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India¶. The validity of Mayawati’s proposal will thus depend on how the judiciary treats caste-based classifications under article 14, a legal issue that is more open. The question is likely to ultimately turn on whether the exceptions permitting discrimination under Articles 15 and 16 (such as SC/ST reservation) are regarded as exhaustive in nature. If the judiciary treats these exceptions as a closed set, then independent reservations measures under article 14 cannot stand. Arguing that articles 15 and 16 are not complete codes on preferential treatment, it seems, will be Mayawati’s only option.
Though her proposal is indeed innovative, it does not go far enough. Mayawati’s recent statements indicate a continuation of the narrowness that has clothed affirmative action policies in India since their inception – believing ¶reservations¶ to be the only legally proper and morally justified form of affirmative action. Poor forward castes may well require and deserve preferential treatment, but that treatment could take several forms. Reservations aside, it may even go beyond affirmative action altogether. Recent official proposals, such as the Madhava Menon report on an ¶equal opportunity commission’ for India, suggest inventive ways to address inequality. Finally, Mayawati has not put forth any empirical evidence to support the claim that poor forward castes deserve reservations. Usually, affirmative action targets minorities. Perhaps Mayawati believes, as Shashi Tharoor once wrote, that ¶we are all minorities in India¶.
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