Why EWS Quota Bill Goes Against Constitutional Social Justice

It is important to understand the quota Bill in light of the SC’s landmark Indra Sawhney judgment of 1992.

The new quota Bill in seeking reservations on the basis of economic criteria, does mark a culmination of sorts for a broad-based anti-reservation sentiment in the country, expressed particularly by the middle class.

(Photo Courtesy: The Quint)

The jury is still out on how the Modi government’s decision to amend the Constitution by introducing a quota for economically weaker sections of the upper caste groups, will play out politically.

However, this new quota Bill – which has been passed by both the Houses of the Parliament and is awaiting the President’s nod – in seeking reservation on the basis of economic criteria, does mark a culmination of sorts for a broad-based anti-reservation sentiment in the country, expressed particularly by the middle class.

As an illustration of this sentiment, one would only need to recall the images from 2006 of doctors draped in their long white robes sitting on long continuous strikes, images that erupted on the internet and on our television screens, protesting against the 27 percent reservation for the Other Backward Classes (OBCs) in educational institutions that was brought out by the then-HRD minister in UPA-I, the late Arjun Singh.

One of the preeminent arguments that dotted our public space then was the need to even have reservations based on caste – which, it was argued, only helps perpetuate it rather than eliminate it – and instead to have reservations based on economic criteria.

This tension between the necessity for having reservations based on caste, and the demand to instead have economic criteria as the basis, speaks not so much about the rationale to have reservations in first place, but more than anything else, points towards the overarching question of social justice, which our founding fathers had made a core principle guiding our Constitution.

In other words, why was there even a need to have caste-based reservations? If social justice means striving towards a more equal society, why not use poverty as the marking line? The present quota Bill brings these two questions to the forefront. But one needs to note that these two questions are also based on a very flawed understanding of what social justice, as expressed by our Constitution, actually means.

The Quota Bill and SC’s Indra Sawhney Judgment

In order to probe in sufficient detail why the quota Bill – or what is officially called the 124th Constitutional Amendment Bill – downright negates the principle of social justice as enshrined in our Constitution, it is pertinent to see the Bill in light of a landmark judgment of the Supreme Court.

In 1992, subsequent to the Mandal Commission and the agitations that it gave rise to, the Supreme Court delivered a landmark judgment called Indra Sawhney & Others V The Union of India. The judgment, among others, capped reservations in educational institutions and government jobs at 50 percent.

But coming as it did on the heels of the violent anti-Mandal agitations, the judgment is also landmark because of some of its prescient observations on the nature of backwardness, and also its assertion that reservations cannot be done solely on the basis of economic criteria. To quote directly from the judgment:

<b>A backward class cannot be determined only and exclusively with reference to economic criterion.</b> It may be a consideration or basis along with and in addition to social backwardness, <b>but it can never be the sole criterion</b>. This is the view uniformly taken by this Court and we respectfully agree with the same.

Indra Sawhney &amp; Others V The Union of India

The text of the judgment in itself is a goldmine to understand how our Constitution understands social justice. When we see the Modi government’s quota Bill in light of that judgment, it becomes more clear how the latter, in its zeal to make a populist score in an election year, ends up contradicting the judicial wisdom that comes before it.

In order to understand how the judgment arrives at the conclusion that economic criterion cannot alone be the determining factor in reservations, it is pertinent to read the text of the judgment closely.

Indra Sawhney Case and the Idea of ‘Backwardness’

The nine-judge bench that delivered the judgment went into sufficient detail to make a case for what, in essence, should be identified as ‘backward’. The text of the judgment opens by invoking the idea of equality as enshrined both in the body of our Constitution as well as in the Preamble.

However, following immediately from this, the judgment puts a special emphasis on the dynamic nature of equality, and how its nature, especially in the Indian context, can never be a monolith, but something ever-evolving.

Taking into consideration Articles 14 to 18 of the Constitution, the judgment also puts an overdue emphasis by stating that the goal that was envisioned in these aforementioned clauses is ‘equality of status and opportunity.’

After collating these two terms together, the judgment further delves into the various commissions that the Republic had formed to look into the issue of backwardness. Immediately after the Constituent Assembly concluded, the Kaka Kalelkar Committee in 1953 tried to identify and define what constituted ‘backwardness.’

The questions this Committee was confronted by were primarily two-fold: a) the primacy of caste in defining backwardness and b) whether caste should alone be the criterion, or whether one should consider ‘class’ as the other criteria too.

In the language of political economy – steeped in 19th century European thought – ‘class’ is a social group defined on the basis of economics. In other words, the amount of money one possesses. But in India where the social reality has been markedly different, and this the judgment dwells upon considerably, ‘class’ in itself is inadequate.

The Kaka Kalelkar Committee came to naught because Kalelkar, despite speaking at length about caste as the predominant criterion in the report, began to have second thoughts on his own recommendations, leading him to write a letter to the then-president Rajendra Prasad, withdrawing his own recommendations! Besides, the government of the day did not accept the recommendations, citing lack of objectivity in identifying backwardness.

The judgment then moves on to a lengthy discussion of the Second Backward Classes Commission, popularly known as the Mandal Commission. At one place talking about Mandal, the judgment makes the following observation:

“Chapter-V (of Mandal Commission) deals with ‘social dynamics of caste’. In this chapter, the Commission emphasises the fact that notwithstanding public declarations condemning the caste, it has remained a significant basis of action in politics and public life. Reference is made to several caste associations, which have come into being after the Constitution.”

Indra Sawhney &amp; Others V The Union of India

And immediately after, goes on to speak at length about the way caste has entrenched itself in the very body politic of our society. To quote:

“The above account should serve as a warning against any hasty conclusion about the weakening of caste as the basis of social organisation of the Hindu society. The pace of social mobility is no doubt increasing and some traditional features of the caste system have inevitably weakened. But what caste has lost on the ritual front, it has more than gained on the political front. This has also led to some adjustments in the power equation between the high and low castes and thereby accentuated social tensions. Whether these tensions rent the social fabric or the country is able to resolve them by internal adjustments will depend on how understandingly the ruling high castes handle the legitimate aspirations and demands of the historically suppressed and backward classes.”

Indra Sawhney &amp; Others V The Union of India

It is only after unpacking the intricate history of reservations in India, and especially, how that history is so inextricably linked to the Republic’s quest to arrive at an understanding of what backwardness means, does the judgment finally arrive at its now famous conclusion about economic criterion not being able to adequately capture the social realities of this country.

In short, the Supreme Court understood that in India, backwardness is intersectional. It is the result of multiple complex factors. This observation is in consonance with the view held by a legacy of scholars. For instance, Sukhadeo Thorat, economist and former chairman of the University Grants Commission, in a series of papers, had argued about the curious interconnection between caste and class in the Indian context, much like race and class intersects in the American context. And this interconnection is both historical as well as structural. In other words, in India, an individual is poor not because she has no money, she is poor because historically and structurally, she and the community she has come from has not received the access to the institutions – jobs, education, social acceptance etc – that aides in overcoming poverty.

Ghanshyam Shah, one of the preeminent sociologists in the country, had also famously observed how occupations and access to land in India is governed by traditional community linkages.

In other words, there is a reason why the stereotypical image of an ‘astute Gujarati businessman’ and ‘intellectually-inclined Brahmin’ persists. It persists because wealth, in case of the former, and access to educational institutions in case of the latter, circulates within a particular community, owing to historically structured community linkages that have resisted opening up.

Coming to the quota Bill, by using economic criterion, it overlooks these social realities and goes for a more populist idea of backwardness. In view of this Bill, poverty is not structural, as our Constitution and the Supreme Court had observed, but incidental: you’re poor because you just happen to be poor.

While the Bill would have to stand up to thorough judicial scrutiny, and the Indra Sawhney judgment would be the plank on which the challenge would be mounted, it only needs to be reiterated that the Bill flies on the face of the principles of social justice our founding fathers had envisioned. The Supreme Court has repeatedly made its views clear. It only needs to be seen if it will do so this time around as well.