In Erewhon’s court: Of deprivation, past and present

The sixth judge says reservation must be phased out but by phasing out the need for it.

Job aspirants register at the counter during a job fair at the AJ Institute of Technology in Mangaluru on March 3. Offering a quota to the poor among the non-backward sections is the political establishment’s way of saying: if you cannot tamper with reservation, widen the basket so that more people fit in. | Photo Credit: MANJUNATH HS

This case concerns the constitutional amendments by which a new reservation of up to 10 per cent has been introduced for the benefit of economically weaker sections (EWS) of society in educational institutions and governmental employment. This specifically excludes those who are already eligible for reservation under the category of Scheduled Castes and Tribes and Backward classes.

I have had the benefit of reading the judgments of my learned brethren. Three of them support the amendment while two wish to strike it down. All of them have read the same statutes and rely on the same precedents. The law as declared by this court is supposed to be the last word on the subject, and laymen may therefore wonder how such split verdicts emerge, whether judges cannot convince one another to arrive at a consensus, and if they cannot then how do they hope to convince the rest of us, and if it all comes down to the vote of the last judge. Well, the reality is that that is how we function, and to use the title of the great American judge Benjamin Cardozo’s treatise, it is part of the nature of the judicial process.

This case distresses me because once more we are tasked with the job of deciding which section of our populace is to be denied the fruits of education and employment. We have been doing this since the first case on reservation knocked at our doors in the 1950s. Equality is the core of our Constitution and exclusion is antithetical to it, but cognisant of our history and the deprivations that castes and classes have suffered over the years, we have fashioned a doctrine of substantive equality that permits discrimination in favour of those disadvantaged on social and educational parameters, to give them a better start, enable them to catch up, so that the race may be run on more equal terms. Over the years, the demands increased in percentages and we fashioned a cap of 50 per cent on the premise that reservation is the exception and no exception can be more than the rule of equality. Even that dyke is now breached, and the court is back to another exercise in the jurisprudence of scarcity.

Stigma and burden

Social and educational deprivation and backwardness are a stigma and burden and can be relieved by education and gainful employment and that will lead to rise in status and real confidence to take one’s place in society. But poverty by itself is a curse, a daily encounter with the grimness of the world. As the wise Roman Emperor Marcus Aurelius said, it is the mother of crime. Are we to try and choose between the two? For sure, when the socially and educationally deprived are beset by poverty, it is a triple affliction. Equally, the poor may well feel that a fed and housed person with a social and educational handicap is immeasurably better off. Historical wrongs are facts that must be brought into reckoning, but current deprivation is also a real and present danger.

Over the years, we see that the question of reservation has not just played out in the courts. While the Constitution aims for a society free of the divisions of caste, caste appears to be of the essence in politics, to assess vote banks and choose candidates. The law prohibits electioneering on the basis of religion, but nothing prevents, and everything promotes, politicians playing the caste card. And if there is one thing a caste wants, it is to fall into the reserved category.

Competitive backwardness

How can the nation put reservation on the back burner when we have entered a political stage where there is competitive backwardness, a clamour to be included in the reserved list? When Gujjars in Rajasthan and Mahrattas in Maharashtra and Patidars in Gujarat want to be treated as backward something is seriously wrong in the social design.

We must remember that the Constitution framers contemplated a span of 10 years for political reservation for Scheduled Castes, Scheduled Tribes, and the Anglo-Indian community in Parliament and the State Assemblies. This has been routinely extended. They did not lay down a similar time frame for reservation in education and employment. That was justified; it takes longer for the effects of historical deprivation to ease off. But we are now 75 years in the running, several generations down the line, and instead of a phase-out we see such a deepening as to cause the worry that, if unchecked, the country will have to live with a permanent reservation policy and make permanent rationalisations with its notions of equality. Is this what the framers would have wanted?

And what about another caution they embedded in Article 335—that reservation should not affect efficiency of administration? Much depends on the quantum of reservation and how much the bar is lowered, but if both these are on the higher side is there not bound to be an impact? Electoral politics being what it is, can we reasonably expect any political party to now talk of reducing, let alone eliminating, reservation? Indeed, it appears that the instant case of offering a quota to the poor among the non-backward sections is the political establishment’s way of saying: if you cannot tamper with reservation, widen the basket so that more people fit in. A politically feasible policy perhaps, but one that fails to engage with the root of the problem and compels us to live with backwardness as the compelling norm for social advancement.

Writing an examination in the open at a Municipal Corporation High School in Vijayawada. Affirmative action includes spending resources for high-quality education in government schools. (A file picture.)  | Photo Credit: V. RAJU

As with many things, let us turn to the Constitution for answers and this time to the broad vision it employs. Equality and justice as the warp, and liberty, fraternity and brotherhood as the weft. Shining through it all is the concept of creating a society with conditions for fulfilment of every individual, to be done by affording each the opportunity for advancement. Fundamental freedoms exist for the protection of the individual, and directive principles to aid their advancement and that of society as a whole.

Opportunity is key, and it is towards this that we may direct our energies. The more you create opportunities, the bigger the pie gets, the less you need worry about exclusion. And opportunities must be meaningful and substantial, not notional or on paper only.

Take education. Article 21A grants the right to free primary education. But is there not a moral and even legal entitlement flowing from the right to life that every citizen who desires higher education and has the merit should get it? The answer is as simple as the question and can only be in the affirmative. But the means to implement it can require much labour and resources.

Affirmative action is the key to redress discrimination, whether social or educational due to historical wrongs or economical due to present scourge of poverty. Undoubtedly, those who suffer on all these counts are most in need of affirmative action. But affirmative action does not start or end with a ticket to a college or job, it consists of preparing the person for the college or job.

Affording meaningful opportunity is the keynote of affirmative action. That is the state’s business, the creation of facilities or policies that aid the creation of such facilities. The state is not simply the regulator of shortages but has a positive duty to rid the nation of shortages.

Use of state resources

It is about time we started to introspect over the proper use of state resources. Article 39 mandates that the resources of the community should be used to serve the common good. I can think of few more important common goods than education. Yet, how much does the state spend on education, how much of this does it spend on the education of Scheduled Castes and Tribes and backward classes? And how much of this is quality education?

What fraction of this flows from the state, from public sector banks and institutions such as the Life Insurance Corporation, from industrialists? What proportion of these lie in defaulted loans and cases before debt recovery tribunals? Bear in mind that every rupee well spent on education reaps multifold rewards for individual and country.

Indeed, it appears that the state feels it is discharging its role by the simple expedient of creating reservation on the one hand and imposing obligations on private educational establishments even when they receive no aid from the state. It would do well instead to examine the quality of education doled out in government schools.

No parent wants substandard education for her child. Teachers in government schools are paid on the scales of government employees and, as a result, earn several times more than their counterparts even in what are regarded as the best schools. Why then do we not get the best of education in government schools?

One does hear of instances where some such schools give quality education due to the efforts of a department and a Minister, and it appears that in Delhi parents are shifting children from expensive private schools to government schools because the quality of education is better. Other instances are also found, but the point is that these remain departures from the norm, and the norm continues to be substandard education. When was the last time we had a high-profile Minister in charge of education? Remember the great jurist M.C. Chagla? The historian and elder statesman Syed Nurul Hasan? It is time national resources were sent into education.

Taking a cue from Article 39, the state should create policies to harness the community’s resources for education. If India can become an international hub for medical tourism, why do we lag behind in medical education? We have no shortage of students who can afford to pay, no shortage of qualified medical teachers, no shortage of patients. Why do we have a shortage of seats, forcing students to go to Ukraine and Mongolia to get a medical degree? One answer could well be that we have confined medical education and other branches of higher education by placing restrictive conditions.

Why do we insist that private organisations that start such ventures be charitably motivated, that fees be capped at unreasonable limits, that there be no profit motive? When we have no problem with cigarette makers or beer brewers or hoteliers or even hospitals, why does anyone wanting to start a medical college get tested for pure altruism? Regulate the quality of teachers, regulate infrastructure, and leave fees to the market and parents. Of course, charitable organisations who get donations should not be allowed to make profits but should deploy the money back into the institution. At the end of the day, a system of incentives and disincentives is vital, with the intent to upscale the quantity and quality of educational institutions.

While on the subject, let us realise that when the law mandates universal primary education, we are talking about real education, not brick and mortar buildings with <FZ,3,0,24>wooden teachers. Institutions must be judged by results, more so when they are funded by taxpayer money, and they cannot plead that teachers are underpaid.

If need be, one should consider handing over a state school to a non-governmental organisation (NGO) or private school. We may even think of education vouchers for the deprived sections, enabling them to access schools of choice, an idea entirely consistent with the newly devised methods of delivery of services. All this is said only to show that it is possible to improve matters, not to let things stay bad and then run to Articles 15 and 16 for more reservation, ultimately inculcating a national ethos of finding it beneficial to stay in the backward class.

We say this because this court’s judgment in the Indira Sawhney case fixing a cap of 50 per cent in reservation is being continually breached. One southern State has gone up to 69 per cent and recently introduced another quota of 7.5 per cent reservation in medical colleges for children from government schools. On the grounds that these schools were underperformers and their students had no chance otherwise of becoming doctors. So much for the constitutional caution of efficiency! With States going to the polls, a northern State has announced 77 per cent reservation in its manifesto. These show where we are heading unless remedial steps are taken.

Education is one side of the coin to move people out of backwardness; employment is another. Several Fundamental Rights and Directive Principles indicate the primordial importance of gainful employment, and indeed several others are unachievable in any real sense without this. We recall what Mahatma Gandhi prescribed as the litmus test for governance: “Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you are going to take is going to be of any use to him.” Think of the effect of your policies on the poorest man.

Perhaps if this had been done, many would have been spared the destructive effects of demonetisation, overnight COVID shutdowns, mass migration, et al.

Reservation must indeed be phased out but not by a time guillotine. Rather they must be phased out by phasing out the need for them. All sections of society must cooperate in this, including the well-off, including those who have benefited from a generation or more of reservation and climbed above the backward basket. Recipients of benefits must cooperate by working hard and justifying such benefits. From all this, the constitutional guideposts of equality and brotherhood must shine and light the way.

The concrete measures

It is time to spell out concrete measures. Each derives from a legal mandate traceable to the Constitution.

1. When social and educational backwardness and poverty are present, they thwart any advancement. Therefore, where all three factors are present, reservation is warranted. Scheduled Castes and Tribes will, of course, be included here, subject to income.

2.Reservation for backward classes should properly go to the backward, else we are simply giving the privileged more privilege. Those who hold positions of affluence and power have no right to hold on to these privileges. Their children must compete with the rest for education and employment. This includes Ministers, civil servants, judges, senior corporate executives and taxpayers and property holders above a certain limit. A commission headed by a retired judge of this court will be set up to draw up these norms of exclusion.

3. On a strict reading of the principle of equality, one would not countenance a benefit for economically weaker sections that excludes the Scheduled Castes and Tribes and backward classes. However, when it comes to reservation, we have long given up strict notions of equality. We have allowed reservation to become a plaything of electoral politics. Thus, the exceptions to the equality rule have trumped the adherence.

It is undeniable that poverty is a depriver and can cripple human existence and endeavour. So we must give at least minimal recognition to this class and permit a limited reservation to them. This can be 10 per cent not of the whole but of the extent of general reservation.

Activists stage a protest against the 10 per cent reservation for economically weaker sections, in Puducherry on November 18. Reservations have become a plaything of electoral politics.  | Photo Credit: PTI

4. Mere entry-level reservation is not enough if unaccompanied by good education. Those qualifying for reservation must receive such education and aids as to truly lift them out of backwardness. Along with gainful employment, it will lift them out of social deficit and the poverty trap. The state must therefore expend maximum resources on creating not just oases but reservoirs of schools and colleges of excellence. Already there are encouraging signs that seats in the open category are taken by members of backward classes. This will only increase when they receive better education. There is no better way of phasing out reservation than to phase out the need for them.

5. Resources will not flow into education unless appropriate enablers and incentives are created. Trusts and charitable societies should be enabled to receive donations with 100 per cent tax deduction for donors.

Let us explain. If the same amount is paid by the donor to the state as taxes, the government will appropriate the bulk towards salary and establishment costs leaving a minimum to reach the beneficiary. Some put this at a mere 15 per cent. Whereas, if the money is paid to a charitable institution, one may expect a larger portion to reach the recipients, while tax exemptions can include provision for maximum delivery capping administrative costs. If the law can provide for 100 per cent tax deduction for research, then how do we say that education deserves less?

Importance of diversity

Similarly, relook at provisions that discourage minority groups or any group from setting up schools for the benefit of their community by depriving them of tax benefits. If a group wishes to set up a school to benefit its community, by all means let them do so, but provide for a percentage of seats for other communities on a scholarship basis so that children may grow up with diversity in their ranks. Prescribe norms for scholarships. Let unaided institutions operate the system with appropriate default and punitive sanctions. The state may concentrate on using public resources for running its institutions well. The habit of leveraging private resources by a command-and-control mechanism should wither.

6. In short, devise systems to create resources for quality education across the board, run state schools and colleges of quality, implement a generous scheme for scholarships in private schools to deprived sections, focus on building meritorious Indians. All this will take time but let it. Growth creates its own momentum and people will respond. It is time we ended the merit vs reservation debate; instead it should be converted into fostering merit in the reservation initiative.

7. It is the business of the state to properly employ those it needs but more to create the conditions to foster employment in the public and private sectors and in self-employment. Public policies should be geared towards this.

8. It is perhaps time to start thinking of phasing out reservation on a graded scale, calibrated with factors like increased access and more open category seats being bagged by members of the classes availing reservation. We refrain from putting a rigid time limit, but if 10 years was thought adequate by the Constitution makers for political reservation, 100 years should similarly serve for educational and employment reservation. The state should gear up its affirmative discrimination policies such that by 2050 it ceases to be necessary or becomes minimal. A high-level commission to monitor this must be set up.

Reversing the process

This is, we are aware, a politically sensitive subject, but occasionally it falls to judges to perform the hard and unpopular task and from this we must not shirk. We are free from the occupational hazards of electoral politics that fetter politicians and so can do right by the Constitution and the nation as we see it. And as we see it, we have over 75 years dragged numerical reservation to breaking point. It is time to reverse the process and aim for equality in form and substance.

I realise this judgment has travelled well out of the scope of the instant case. But I content myself with the thought that it is focussed to fulfil constitutional imperatives of true equality and opportunity benefiting our guiding principles of fraternity and brotherhood, and advancement of individual and nation. India cannot take its rightful place in the world unless we harness the productive capacity of all Indians, whether rich or poor, and enable them to overcome handicaps they are born with and suffer at present.

In a sense, I join neither the majority nor minority view of my brethren, but I partake of both to implant ideas into the stream of public consciousness, to stir and await the wisdom of an emerging day. In a different sense, this is a true dissent, not just to the other opinions in this case but to an existing state of affairs that the nation, the Constitution, and this court cannot long endure.

Erewhon (anagram of Nowhere) is based on the satirical novel Erewhon by Samuel Butler set in the eponymous fictional country. The court, judge and judgment are fictional. Sriram Panchu is real. He is a Senior Advocate at the High Court, Madras.

The Crux

• This case concerns the constitutional amendments by which a new reservation of up to 10 per cent has been introduced for the benefit of economically weaker sections (EWS) of society in educational institutions and governmental employment.
• we are tasked with the job of deciding which section of our populace is to be denied the fruits of education and employment.
• We have fashioned a doctrine of substantive equality that permits discrimination in favour of those disadvantaged on social and educational parameters, to give them a better start, enable them to catch up, so that the race may be run on more equal terms.
• Social and educational deprivation and backwardness are a stigma and burden and can be relieved by education and gainful employment and that will lead to rise in status and real confidence to take one’s place in society. But poverty by itself is a curse...
• The law prohibits electioneering on the basis of religion, but nothing prevents, and everything promotes, politicians playing the caste card. And if there is one thing a caste wants, it is to fall into the reserved category.
• Affirmative action is the key to redress discrimination, whether social or educational due to historical wrongs or economical due to present scourge of poverty.