It is indeed a coincidence that in November 2022, two of the world’s largest electoral democracies are seeking to recalibrate their moral goals. In the case of India this concerns the contestation over the core features of the reservation or quota system. Something similar is taking place in the US with respect to the policies of affirmative action. The new social realities that these policies have produced, over the last half century in either country, have resulted in challenges being brought to their respective Supreme Courts. Law is the terrain on which the moral battle is being fought.
In both countries, the introduction of the reservation and affirmative action policies was the result of a self-conscious decision, a political acknowledgment if you will, that India and the US were nations that had sordid social pasts where some sections of their population had been forced to live a dehumanised existence.
India’s case for reservation was built on an acceptance that the caste system that had codified all aspects of existence, from using a common village tap, to common dining, to inter-marriage, to even worshipping in a temple, inflicted great social violence on victim communities.
Restitution for sordid past
The US case for affirmative action emerged similarly from an acceptance that slavery had brutally reduced human beings to commodities to be owned, bought, sold, and abused, a repugnant past that called for restitution. The reservation and affirmative action policies are seen as just such an effort at restitution.
In the Constituent Assembly discussions in India, a free democracy was imagined that had an institutional and policy order that would give humiliated and discriminated groups reservation in three important social spaces: educational institutions, public bureaucracies, and elected Assemblies. The refinements that followed the initial enactment either advanced or weakened this system of reservation. There is a large case history as well as several academic studies on this issue.
The latest Supreme Court EWS [Economically Weaker Sections] judgment is one such attempt at ‘refining’ (some will say undermining) this reservation system. In the US, through important cases in the Supreme Court beginning with the benchmark 1954 Brown vs Board of Education, which prohibited racial segregation in schools, to Bakke vs Regents of the University of California, Grutter vs Bollinger in 2003, and Fisher vs University of Texas in 2016, to name a few that challenged the use of racial profiling, the policies of affirmative action in university admissions have been seriously contested. Admissions, the challengers have argued, should be colour blind.
The current case, to be decided this November, has been filed by the Students for Fair Admissions (SFFA) against Harvard and the University of North Carolina. It alleges that the affirmative action policies of these universities violate the 14th amendment that guarantees “equal protection of the laws”. Interestingly, the ethnic composition of the SFFA is largely Asian-American.
Not only have the moral coordinates, in both democracies, changed over time, there has also been a narrowing in their scope as the contours of the imagined nation have altered under pressure from new political realities. Whether this is a pushback, by their respective ruling classes/castes, against the reservation and affirmative action systems adopted is an interesting debate for another time.
My limited brief here is to revisit the initial moral reasoning in India and see how EWS measures up to it. This is important because, on first reading, there seems to be considerable confusion by both learned judges and eminent commentators who have used key concepts interchangeably, as if they are the same (which they are not), and who have replaced the empirical evidence required by their argument with whim and opinion. Virat Kohli had a bad day at the crease.
Marc Galanter in his scholarly 1984 book Competing Equalities: Law and the Backward Classes in India offers three time-dimension analytical frames that produce the moral claims which undergird the reservation system. He argues that victim communities must be offered reparations for the horrors inflicted in the past. Compensation is a way to atone for wrongs committed. But reparation alone is not enough. Something more has also to be done to change the present persistence of practices of negative discrimination. Countering it by policies of positive discrimination is perhaps the way. This too is not enough, since additional action is required for a just and fair future.
The evolving package of reservation policies is seen as the composite that addresses each requirement, reparations for the past, positive discrimination in the present, and policies for an equal and dignified future.
Further, this composite package has three analytical strands, each of which has to be considered independently. The first is restitution, which I have just discussed. The second is the recognition that reservation has the unintended outcome of producing a plural society by producing a petit bourgeois leadership from the victim communities that is so vital for any democracy. The third is the recognition that these policies have, integral to them, both a material and a cultural dimension.
Hence, economic backwardness, disadvantage, inequality, or poverty, are necessary but not sufficient conditions for reservation. The cultural dimension of a social system that imposes discrimination and humiliation is equally important in designing the policy. Systematic cultural oppression is faced by communities and not by individuals. Hence, the policies target communities who are victims and not individuals, an aspect that appears to be missing or goes unacknowledged in the EWS judgment.
Such cultural oppression produces a cumulative effect of both disadvantage and discrimination, deprivation and humiliation. Reservation policies are one way of remedying this situation. This ignorance of the interlinkages results in an illegitimate conflation of distinct concepts such as discrimination and disadvantage. They are not the same. A poor Brahmin is not half as disadvantaged as a poor Dalit. One has cultural status that gives power in certain contexts while the other does not. One can even oppress the other through exclusion and denial of access to important cultural goods.
Analysis of judgment
In addition to studying its conceptual confusion there are other aspects of the EWS judgment that will need to be analysed. For example, does EWS reservation extend to EWS sections among the religious minorities? Can a poor Parsi claim EWS benefits? How does the EWS judgment align with earlier judgments?
Since the 50 per cent limit has now been breached, has it inaugurated an open season to take reservation to 99 per cent? Does the judgment make it imperative for the government to conduct a caste census so that an empirical basis is available to determine quotas for groups? Will it be available for groups who are already reservation beneficiaries? If it does not, does the EWS system violate the constitutional provisions of equality? Is there a time dimension specified after which EWS reservation will cease?
Since reservation is for groups who suffer both discrimination and disadvantage, and since a creamy layer of such groups is excluded, can the concept of a cultural creamy layer be used to describe poor forward castes?
In what follows I shall not offer answers to these questions but shall limit myself to an important argument missing in the EWS judgment, particularly the one concerning the production of a petit bourgeois leadership among victim communities.
Spaces of social power
Reservation allows members of victim communities to enter spaces of social power so far denied them by the oppressive cultural rules of the social system. By creating leadership through education, and by placing such leaders in public bureaucracies and the political system, reservation releases victim communities from the mental bondage that had made them accept their inferior status and occupations.
This cultural gain is more important than the anti-poverty programme that the EWS judgment appears to have become. There are many other policy instruments available to address poverty such as MGNREGA and EWS scholarships. Reservation cannot be one of them because of its two dimensions: cultural and material.
That is why even though only a small segment of victim groups gets the opportunity benefits, the whole group gets the symbolic benefits. ‘One of ours is a Vice-Chancellor’. ‘One of ours sits in the chair of the Rashtrapati and has forward caste staff address him as ‘Sir’.’ This symbolic gain is not insignificant. Reservation is about this cultural achievement.
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When reservation produces this cultural leadership, from among hitherto discriminated groups, it will produce not just a more vibrant cultural ecosystem but a more sustainable democracy.
The leadership that will emerge will give ‘voice’ and ‘presence’ to the discriminated communities. It will change the landscape of politics, making it more plural, as is happening gradually today in what is referred to as India’s silent revolution. It will normalise the presence of hitherto excluded groups within regular political life. Rishi Sunak and Priti Patel, by occupying positions of power, are achieving this normalisation for immigrant communities within British democracy. Reservation hastens this normalisation by strengthening the equal citizenship of hitherto discriminated groups.
The learned judges who have ruled on the EWS scheme seem to suggest that a system crafted over millennia has faded away after 75 years of democracy. One of us is wrong. Ask the anthropologists and political sociologists who study India. They will tell you why some of them see the EWS judgment as the revenge of the ruling classes.
Peter Ronald deSouza is former Director of the Indian Institute of Advanced Study, Shimla. He recently co-edited Companion to Indian Democracy: Resilience, Fragility and Ambivalence, Routledge, 2022.