Is delinking reservation from the question of social justice not a good idea?

By IMPRI Team 
The IMPRI Centre for Human Dignity and Development, IMPRI Impact and Policy Research Institute, New Delhi, organized a panel discussion on ‘EWS Reservations: Perceptions and Policy’ as a part of the series: The State of Human Dignity and Development- #Inclusive Development on 29th Nov 2022. In this #WebPolicyTalk. Inaugurating the session Ms Nayna Agarwal, Researcher at IMPRI, welcomed the speakers and participants of the Event with an introduction to the eminent panellists.
Dr Ajay Gudavarthy is Associate Professor at the Centre for Political Studies, Jawaharlal Nehru University, New Delhi, and he’s a well-known political theorist, analyst, and columnist. He’s moderating the panel discussion.
Prof. G Mohan Gopal is a Constitutional Law Expert and Eminent Scholar. He’s a Former Director of the National Judicial Academy of the Supreme Court of India, Former Director (Vice-Chancellor) of the National Law School of India, Bengaluru, and Former Director of Rajiv Gandhi Institute for Contemporary Studies, New Delhi.
Mr T K Arun is a renowned Journalist and Columnist based in Delhi.
Mr Abdul Hafiz Gandhi is a National Spokesperson of the Samajwadi Party.

POVERTY V/S CASTE DEBATE

Dr Ajay Gudavarthy started the discussion with his opening remarks. He welcomed his co-panellists and shared the agreement on the long-term implications of the EWS Reservations policy (policy). He talks about the discussions and mobilization that have been happening after the Janhit Abhiyan v. Union of India judgment (the judgment) and how most constituencies are not ready for this kind of social discourse. He shares his discomfort over the comparison between poverty and caste and how notions are created that poverty is transitory, whereas caste is permanent.
He questions what can be gained through this juxtaposition, as class and caste have gone hand in hand in the context of India. Inter-generational mobility is limited in poverty as well, and the same can’t be completely disregarded. He asks the panellists to share their views on this poverty v/s caste debate that has been created by the ruling party and whether one should fall into this trap than look into the actual issue with this policy. He welcomes Mr Abdul Hafiz Gandhi to share his views as there’s an absence of debate opposition over this matter by the opposition parties.

POLICY OF ‘FORWARD CASTE HINDUS’ AND THE PROBLEMS WITH THE JUDGMENT

Mr Abdul Hafiz Gandhi thanked the organizers for including him in the panel and started by quoting Prof. Satish Deshpande– ‘On 9th January 2019, the idea of reservation/anti-discrimination died the day when parliament passed this EWS Reservation Bill in just 3 days. The last rites of anti-discrimination were performed by the Supreme Court on the 7th of November 2022, when it upheld the 103rd Constitutional Amendment providing 10% reservation for EWS’.
According to Mr Hafiz, this policy is for ‘Forward Caste Hindus’ as it excludes SC/ST/OBC communities who constitute the majority of the poorest section the society. So the argument in favour of the policy, that this policy creates an egalitarian society doesn’t stand when the large section of the disadvantageous society is kept outside the realm of this policy. He explains that when the economic ground is made the basis of reservation, then its opportunities are open to everyone. This undermines the very essence of the reservation policy.
He also talks about the poverty v/s caste debate, where he agrees with the fact that poverty is transient, whereas caste is permanent, and it remains even if one gets better off economically. No strong justification has been given for the exclusion of other castes from this policy. Poverty can be treated through other measures, but caste is an intractable problem. Thus, reservation became an important tool for dealing with caste-based inequalities.
He also mentions that delinking reservation from the question of social justice is not a good idea because by excluding the Quota, we provide differential treatment to people. This means everyone will be treated equally, victims as well as perpetrators. He states that he disagrees with the judgment on various counts: The delay of the Court in deciding the matter made the government implement the policy. After implementation, it became difficult to undo the policy, and this might be one of the reasons for the court to decide in favour of it.
Exclusion of SC/ST/OBC from EWS Quota. This policy only addresses the poverty of general caste communities and excludes poverty in other caste communities.
The judgment failed to explain how this policy is suitable for achieving the egalitarian goal. The ceiling limit to get the benefits under this policy is too high (below Rs. 8 lakhs). This could lead to the middle class siphoning off the benefits rather than going to the poorest sections of society.
Justice Bela Trivedi mentions in the judgment that reservations need to be phased out, but doing so won’t eliminate cast inequalities.
Justice J B Pardiwala observed that a large percentage of backward classes had attained an acceptable level of education and employment. Thus they should be removed from the backward class. While stating this, he didn’t provide any empirical evidence to support this claim.

QUALITY EDUCATION AND BROAD-BASED PARTICIPATION IN ECONOMIC GROWTH

Mr T K Arun mentions that the basic criticism of the judgment is contained in the minority judgment presented by Justice U U Lalit and Justice Ravindra Bhat. Views that are taken by these judges are that policy is discriminatory against the poor among the non-forward caste and thus constitutionally invalid. However, Mr Arun brought forward some broader issues. He talks about using resources to provide quality education instead of using them for reservations.
He explains that limited employment opportunities need to be expanded so that we don’t need to save up the opportunities for the quota. In 75 years of independence, the hierarchical social structure has not been dealt with properly. Power is distributed in society in a very unequal fashion. This creates hurdles in the functioning of the democratic society. The political parties fighting for the justice of backward classes have abandoned them along with the goal of abolishing the caste system. The focus should be on eradicating the caste system and not on whether reservations should be provided.
He states quality primary education is the key. Primary education is universal, and we might not need reservations if the quality of education is at its best. Social, cultural, and political empowerment can be achieved through education. The absence of quality education is a fundamental failure of governance and should be tackled by various political commitments.
He then talks about affirmative action to deal with social stratification and discrimination and questions whether reservation is the only solution to the elimination of this kind of discrimination.
He mentions Kenneth J Arrow’s criteria for the successful design of an affirmative action policy: Policy design shouldn’t kill the imperative to excel, and the design of affirmative action should not reinforce past perceptions of inferiority. So better designs of affirmative action can be constructed, apart from the reservation system. The EWS reservation policy wouldn’t be enough to achieve the goal of equal opportunities. People need to be made part of the system and production process, i.e., Broad-Based Participating in Economic Growth. The goal of eliminating the caste system should be revived.

DISTORTION AND REPRESENTATION OF THE SOCIAL GROUPS

Prof. G Mohan Gopal states that perceptions of this policy have been deliberately distorted. There’s false advertisement and presentation of this policy, and that needs to be questioned. False reservations are in the following respects:This policy is not for economic reservations for poor sections but for socially and educationally-forward classes with a creamy layer exclusion. Under this policy, one would only have to prove that he/she doesn’t belong to social and educationally backward classes. The policy provides the criteria to assess the economic weakness, but it cuts off the creamy layer. We have a policy for socially and educationally backward classes, but it also cuts off the creamy layer. There’s deception. If the intention was to provide this reservation for socially and educationally forward class, then why the amendment doesn’t mention that the policy provides for economically weaker sections of socially and educationally forward groups? Thus inclusion is hidden.
According to him, the new role of reservation upheld by the Court is a basic structure violation, quite apart from discrimination. In public employment and public and private education, at the micro-level, a 10% reservation for EWS has been included. This will be occupied by the people only belonging to the socially and educationally forward classes. This would lead to the thinking in the minds of people that it’s because of their social forwardness that they have got the benefits. They will prevent social change and this issue couldn’t be raised in any institution because 10% ethnic purity has been sanctioned by the authorities.
He mentions that the real economic reservations are the reservations for SC/ST/OBC because any caste or community can be included as a group in the backward classes. Criteria applied by the National Commission for Backward Classes to decide the groups that will include under backward classes are organized into 4 heads: Social, Educational, Economic, and Political. So backward class reservation is an economic reservation. EWS is caste reservation. Even the upper caste section of society had the option to get a reservation under backward classes. They still have. So there was no need to form another category of reservation.
This has happened because people with strong social-political backgrounds don’t want the representation of the backward classes in the system. This has led to the double reservation for the socially and educationally forward classes as with a social group they can get benefits under backward classes and as an individual, they can get benefits under EWS policy.
He further mentions Article 38(2) which talks about equality not amongst individuals but amongst groups. A policy like EWS Reservation would kill this group equality as now some groups (social and educational forward classes) would be more powerful and over-represented than others (social and educationally backward classes). To create group equality all groups need to be given power equivalent to other and this can be done by providing them representation. The policy is pushing back against this equality which is the goal of the Constitution.
Prof. Mohan explains reservation and its history, quoting Ambedkar- the power shall be shared with all communities in proportion to their population. Adequate representation in the services for all communities is required. The problem that we are facing right now is higher officials are sitting in higher positions in the system to misuse the law for themselves and the backward classes don’t have enough representation in the system.
Therefore the meaning of reservation that Ambedkar talked about was regulating recruitment to public services in such a manner that all communities including the higher classes will have an adequate share in them, proportion to their population. The only issue that is a concern is how to recruit people into public services so that the oligarchy/monopoly can be destroyed and we could create a representative state. The basic structure of the constitution is violated by taking away the idea of a representative state and putting a capsule of upper-caste apartheid inside the state.

CONCLUSION

Closing the panel discussion, Dr. Ajay gave his concluding remarks and thanked all the eminent panelists. He mentioned that many more questions needs to be answered on this matter and thanked Prof. Mohan for providing a new perspective on the policy. He complimented the entire NIDM and IMPRI Impact and Policy Research Institute team on the successful conduction of the training program. The conference ended with a vote of thanks by Nayna Agarwal.
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Acknowledgement: Eva Chauhan, research intern at IMPRI