The recent ruling of the Hon’ble Supreme Court asking the State governments to exercise their discretion and will, to better put it as ‘an internal matter of the States’, in granting reservation benefits to SC and ST communities in matters of appointment and promotions in public posts is receiving mixed reviews. While many, if not all, among the non-recipient of reservation benefits are celebrating this much-awaited verdict of the apex court, the beneficiaries appear quite discontented and alarmed with this new development. On one hand, this new development in the Indian political landscape is being interpreted by the affected group as the erosion of constitutional values and special provisions granted to socially and economically marginalized groups. The euphoric group or the non-beneficiary lot, on the other, is viewing this verdict of the apex court as a more ‘democratized’ and inclusive approach with matters relating to employment and education in India where each individual will get ‘equal’ opportunities and treatment no matter what caste or socio-economic background s/he comes from.

A ruling such as this from the top court of the country is not an exception. In the past a few years, there have been occasions when the Supreme Court passed judgments which did not go down well with the SC/ST/OBC communities and their interests. A trend of gradual but steady dilution of the constitutional rights granted to these marginalized groups has been at work for quite some time. Be it the Supreme Court order in February 2019 related to the 13-point roster in teaching positions in institutions of higher education which would have done a colossal damage to SC/ST/OBC representation in higher education teaching posts had it not  been overruled by the present government by introducing the Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019 which later became an Act under the same title or its ruling in March 2018 with regard to the SC/ST Atrocities Act which sought to make it toothless citing reasons of misuse by the SC/ST communities, a ruling which too had compelled the ruling establishment to intervene and overrule the apex court order. Thus, it shouldn’t be an exaggeration to argue that the constitutional values and the provisions therein which have until now given protection to the marginalized groups are not only being diluted but also re-inscribed. In a country like India which is known all over the world not only for its multiple diversities but also economic disparity, rulings like the one passed recently would not only pose a stiff challenge to a harmonious social engineering in a highly diversified country like India, particularly the empowerment of the vulnerable sections, but also to its founding democratic principles which instill hope and enthusiasm in disadvantaged groups for any socio-economic mobility.

Ever since the Reservation Policy was adopted in the Indian Constitution, it has been an apple of discord. It has been popularly viewed by the non-beneficiaries as a set of discriminatory constitutional provisions granted to a large section of Indian population consisting of Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) who claim to be victims of historical caste oppression and their eventual social and economic marginalization. Besides, the critics of Reservation policy also argue that the policy has created a further divide among all the people of the Indian Republic classifying them into sub-categories of those directly benefiting from the constitutional provisions and those left out, thus generating a lot of conflict and tension between these two groups. In a scenario where the job opportunities in the public sector are shrinking steadily and more people from the marginalized groups are entering schools and colleges to be employable in the job market, the opposition to reservation policy has become far more intense and pronounced over the years. So much so that mediocrity or non-meritorious are terms which are often used as a slur against those covered under reservation policy. Also, it has been a popular perception that reservation policy has been around for more than 70 years since the Constitution of India came into force and has done enough charity for the vulnerable sections at the expense of others. Hence, as the chorus bellows: ‘Enough of special provisions for the marginalized groups! Let there be a level playing field for all—a democratized India where all get equal opportunities to grow and advance without any special treatment!’

While this anti-reservation popular perception has become quite entrenched in the Indian society over the years and even has the capacity to convince many, if not all, that the reservation policy be scrapped immediately, a path the judiciary seems to have embarked on already, it is however pertinent to know why reservation policy was adopted in the Indian Constitution and why it remains to be a highly disputable matter concerning the Indian polity.

First, any society that has had a deep history of discrimination and marginalization of select social groups tends to have policies of affirmative action to correct the historical wrongs by providing them adequate representation in public as well as private sector ( India is yet to extend reservation policy to the private sector). Many countries like the USA, the UK, Northern Ireland, Brazil, Peru, South Africa, Malaysia, China, Japan to name a few, have such policies of affirmative action for socially marginalized groups in the sphere of education, employment and political representation. The rationale behind such policies is to bring the marginalized social groups on par with the dominant ones; to provide them opportunities of growth and advancement hitherto denied. Taking the case of the USA, the policy of affirmative action adopted in the US Constitution after the Civil Rights Movement of late 1950s under the leadership of Martin Luther King Jr. highlighted the plight of the African-Americans in white-majority America who had faced institutional discrimination and marginalization in public sphere due to racial prejudice—a by-product of the long history of slavery in America. Although slavery had been abolished long back in 1865, the year the American Civil War ended, the abolition achieved little success as the African-American community was still far from being accepted by the white society and permitted to hold places of power and importance in the civil society. The policy of segregation ratified by the US Supreme Court had become a norm where the black community was legally prohibited to share public space be it school, college, workplace, park or public transport with the white community. Thus, the Civil Rights Movement with its non-violent means and action plans not only pressurized the US government to give its racially ‘other’ citizens equal rights but also frame laws and policies that could undo their minimal representation in public sphere and accord them justice.

India too adopted a policy of affirmative action designed for the socially marginalized groups but much before the US. Here, it is called Reservation Policy. The sole credit goes to Dr. B.R. Ambedkar who led from the front to ensure the Constitution of independent India take an inclusive approach and direction to offer opportunities of growth and advancement to the marginalized social groups. He was the Chairman of the Drafting Committee which had been entrusted to formulate the Constitution of independent India as well as the first law minister of independent India.

The Reservation Policy in India was adopted in the Indian Constitution in 1950 recognizing the specific problems pertaining to the marginalized communities due to their social, economic and educational oppression in the past. Since they had been denied any room for mobility or opportunities of growth because of their lower most positioning in the Caste-based hierarchical social order, some exceptions were made in the Constitution for these marginalized groups, primarily SCs and STs for their advancement. Along with the Reservation Policy, some anti-discrimination laws were also framed such as the Protection of Civil Right Act 1955 (PCR), and the Prevention of Atrocities Act, 1989 (PoA) to protect them from social injustices and all forms of exploitation in the independent Indian Republic. While the purpose of anti-discrimination laws is to ensure equal citizenship rights to the SCs and STs, that of the Reservation Policy is to provide protection against discrimination in the spheres of employment, education, and legislature to ensure a fair share in these for them, and to bring about an improvement in their economic and educational status (Thorat, 2007).

As it is evident, both the reservation policy and the anti-discrimination laws are inseparable from each other. Together they provide a formidable cover to the marginalized communities of SC and ST and other vulnerable sections as well. Thus, it can be argued that the moment reservation policy is scrapped or diluted, the anti-discrimination laws too would face the knife without any delay. The Supreme Court ruling in March 2018 with regard to the Atrocities Act or SC/ST Act which sought to dilute its provisions citing reasons of misuse by the SC/ST communities can be cited as one point of reference. Thanks to the timely intervention of the ruling dispensation into the matter that the issue did not escalate further. Besides, the acts of atrocity and hate crimes which target these marginalized communities even today is reason enough to explain why these special provisions were inserted in the Indian Constitution and why they must be guarded and kept intact in order to enable and empower these sections.

Second, it is often argued that the reservation policy has been around for over 70 years and a large section of SC/ST communities has made significant progress in terms of education and economic advancement through reservation in public jobs and education, hence no need for any more reservation now.  While this popular perception sounds quite convincing, it is at the same time misleading. Although it cannot be denied that reservation provisions have helped SC/STs gain some representation in spheres of employment and education, major chunk being that of those who fall in the creamy layer category with some economic advantages and their location in the urban centres, yet the representation of SC/STs in public sector is far from satisfactory and largely confined to lower cadre jobs only like Group C and D. Higher cadre posts still remain out of their reach and maximally dominated by the forward castes. Besides, it is not just the public posts where the representation of marginalized social groups is low but also the “positions of power and influence” in civil society where their presence is minimally registered. In a 2015 survey conducted by Jean Dreze and his team on Allahabad city of UP on “positions of power and influence” (the university faculty, the bar association, the press club, the top police posts, trade-union leaders, NGO heads, and so on), it was found that 75% of these positions were occupied by members of the upper castes, whose share of the population is just 16% or so in the entire state. This imbalance was much more pronounced in civic institutions like the NGOs and trade-unions where the top posts held people from the forward castes. Thus, since there is no provision of direct selection/recruitment to higher posts, implementation of reservation in promotions to SC/STs becomes not only justified but also an immediate need of the hour where this imbalance in power and influence share can be minimized. Though it is just an example of only one State in India, the story is not much different in other states. Providing reservation at the entry level and denying the same at the higher level through promotions is a wrong precedent set by the judiciary which must be re-examined and set right.

Also, it is to be emphasized that special provisions for the marginalized sections were included in the Indian Constitution on the ground of social exclusion and discrimination which ultimately led to their educational and economic backwardness. As the caste-based social structure offered privileges such as right to learning and choosing occupation on the basis of one’s position in the caste-hierarchy, it kept a large chunk of population from the margins from getting any mobility be it social or economic. It was a system which bred the worst forms of inequities which kept the majority of people in a servile condition, always dependent on the whims and fancies of those sitting at the top. Post India’s independence, special provisions were made for these marginalized groups to correct these historical wrongs to bring them on par with the dominant social groups by inserting “Equality of opportunity in matters of public employment” in the Constitution. Thus, the claim by the euphoric group that the present ruling of the apex court is a move in the direction of a more democratized and equalitarian India providing everyone a level-playing field is utterly flawed and baseless as when there was never a level-playing field for the people of India in the first place, how can there be one now? Shall we take this attitude as ‘selective equality’ where the privileged would have everything at their disposal and the marginalized, nothing? It is befitting to say that the anti-reservation popular rant is informed by this pervasive insecurity that the dominant social groups might lose their privileges and hegemony if the marginalized groups continued to benefit from the constitutional provisions any longer given their demographic size.

Besides, the claim that reservation provisions for SC/STs were meant only for a period of 10 years i.e. from 1950 to 1960 but it kept getting extended ever since due to vested political interests, requires some clarification too.

While the claim for 10-year validity of reservation provisions cannot be refuted, however it is to be clarified that this time limit was marked only for representation in Central government and State legislatures. As far as representation of SC/STs in educational institutions and government jobs is concerned, there is no mention whatsoever of any time-limit with regard to reservation either in Article 15 or Article 16 of the Constitution. Thus, to say that the ruling parties be it in the past or in the present have used reservation policy in India for their vote-bank politics, a popular claim by upward mobile sections of Indian society, and have not really acted on its scrapping for the fear of losing the mandate, a sort of political suicide, would be to implicate them, on one hand and divest them of their constitutional duties, on the other.

Third, though there is ample evidence to show that some among the SC/STs have attained economic mobility through these special provisions and can be put in the category of those who have ‘risen-up’ from their erstwhile underprivileged background and status, it would be nonchalant to assume that they have been assimilated into the mainstream society and face no discrimination and exclusion socially till date. In other words, as far as their social or group identity is concerned, due to their caste leanings, very little change in perception of the mainstream society has been noticed. To put it bluntly, caste-prejudice still functions as a motive of discrimination against these socially marginalized groups.

Many Social psychologists and eminent scholars have devoted their time to understand the curious nature of prejudice in social contacts. Two Nobel laureates, Akerlof and Kranton in their collaborative work, “Identity Economics” (2010) argued how social categories or social identities and their norms affect economic decisions through ‘Identity Theory.’ They argued that social categories and their norms determine to a great extent how individuals would behave with other individuals, as individual decisions are socially framed. Applying this theory on race and poverty, they found that the behavior of whites towards blacks is determined by group norms which perpetuate a distinction of ‘us’ and ‘them’. The whites think of blacks as ‘them’ rather than including them in the category of ‘us all’ which eventually results in an ‘oppositional identity’ or discrimination. I would like to add that once the ‘them’ group attains some economic mobility, this discrimination becomes far more intense and turns into violence against the ‘upward mobile group’ which was until now marginalized and underprivileged.

Blumer, another social psychologist, challenging the conventional theoretical construct of prejudice as a set of individual feelings  targeted against other individuals, argues that “race prejudice exists in sense of group position rather than in a set of individual feelings which members of one racial group have towards members of another racial group” (Blumer 1958, p. 3).  He further states that there are four basic types of feelings or attitudes that always seem to be present in (race) prejudice among the dominant group: “feeling of superiority, a feeling that the subordinate race is intrinsically different and alien, a feeling of propriety claim to certain areas of privilege and advantage, and perhaps the most important, a feeling of fear that the subordinate race harbors designs on the prerogatives of dominant race” (Ibid, p. 4).

Thus, it is evident how prejudice plays a significant role in maintaining and preserving the advantaged position of the dominant group conferring upon them both material as well as some intangible privileges like high social status. Also, the application of these theories on marginalized caste groups in India like SCs, STs, and OBCs illustrates how and why the interests of the dominant caste groups are always in conflict with that of the other and why anti-reservation sentiment has deepened so much in India over the years. Also there is no point in stressing for economic criteria to grant reservation to these vulnerable groups as long as they are not accorded the social respect and dignity that they deserve.

Fourth, it is popularly believed that reservation is a poverty alleviation policy of the government which provides employment to non-meritorious and mediocre candidates belonging to SC/ST/OBC communities. To counter this misconception, I would like to refer to the 1992 Supreme Court judgment (Indira Sawhney & Ors v. Union of India) which considers economic backwardness only arising out of social backwardness as the parameter for reservation. The apex court stated that “that a backward class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion.” Thus, it can be argued that reservation is not a tool to alleviate or solve the problems of poverty or unemployment. Rather it is that additional support to the socially marginalized groups which due to the lack of basic means like affordable and subsidized education and scholarships could not attain upward mobility and social respect.  As for the question of mediocrity or NFS (Not Found Suitable), this is nothing but another ploy by the dominant groups to deny the socially marginalized groups representation in public sector jobs. The private sector is not being mentioned as it still remains out of the purview of reservation and covers almost 98% of the entire Indian economy.

Besides, the Supreme Court ruling also gestures towards a trend where it is implicitly asking the state governments to formulate their own versions of the Indian Constitution as and when it suits the interests of the ruling parties in place. Calling the constitutional provisions as only “enabling provisions and not a fundamental right” is a grave misreading by the apex court as these provisions were inserted in the Constitution to enable the state governments to ensure equal and fair representation of the marginalized sections in public posts and not to disable them as it is being interpreted today. However, as it has happened in the cases of 13-point teaching roster and SC/ST Atrocities Act, it is hoped that the ruling dispensation will take a serious note of the present issue and assuage the fears of the affected parties by enacting a law to overrule the Supreme Court ruling.

Amit Kumar teaches ‘Literatures in English’ at Vivekananda College, DU.

Notes:

Akerlof, George and Rachel Krantin (2010), Identity Economics: How Our Identities Shaped Our Work,      Wages and Well-being, Princeton University Press, New Jersey.

Blumer, Herbert (1958), “Race Prejudice as a Sense of Group Position”, The Pacific Sociological Review,    Spring, Vol. 1, No. 1, pp. 3.

Thorat, Sukhdeo and Narender Kumar (2007), B.R. Ambedkar: Perspectives on Social Exclusion and          Inclusive Policies, Oxford University Press, New Delhi.


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