Ashwini Deshpande
The architecture of India’s reservation policy in education and jobs, more than that of any other government policy, has been shaped by a series of court judgments and constitutional amendments, which have sequentially determined the overarching rules as well as the minutiae of its implementation. The actual execution of the declared percentage of quotas – 22.5% for the Scheduled Castes and Scheduled Tribes (SCs and STs), with the later additional 27% for the Other Backward Classes (OBCs) and 10% for economically weaker sections (EWS)– across a variety of institutional settings is far more complex than might appear at first sight. The SC, ST, OBC (and now EWS) reservations are “vertical” reservations that are mutually exclusive. Additionally, there are “horizontal” or interlocking reservations that cut across these vertical categories: reservations for women individuals with a disability, children of war widows, and sportspersons, based on domicile. Working out the implementation of the plethora of categories is already extremely complicated; the controversies surrounding reservation further compound the challenges in its execution.
Demystifying Reservations
Abhinav Chandrachud’s eminently readable book takes us through the minutiae of implementation rules in very useful ways that lift the fog from a confusing web of acronyms and categories. It demystifies and clarifies reservation related terminology and processes for readers interested in understanding and engaging with the myriad nuances of India’s reservation policy. In the process, it also asks critical panoramic questions, such as: Which groups deserve to be eligible? Should reservations be group or class-based? What is “merit”? How should seats be rationed among “meritorious” candidates? What does inequality of opportunity in India look like and how can reservations remedy it? Should reservations be provided at the entry level (for students, at the undergraduate level, and for jobs, at the entry level), or should seats be reserved at all levels? And many more.
Answers to these tricky questions often lead to conundrums and contradictions. For instance, in the context of reservation in promotions, take this example. X is from a reserved category and Y is not. Y is senior to X in their current position. X gets promoted to the next level due to reservation in promotion and becomes senior to Y. When Y gets promoted to the same next level, will Y regain the original seniority vis-à-vis X? Under the older “catch-up rule,” the answer to this question was yes, because of the understanding that reservation in promotion would / should not confer “consequential seniority” on reserved category candidates. However, the 85th constitutional amendment (to Article 16[4A]) effectively ended this catch-up rule and accorded consequential seniority to the reserved category candidates who got accelerated promotion. This was highly controversial but got passed in Parliament nearly unanimously.
We learn that courts routinely ask for crucial (non-existent) data, which is needed for moving from the larger principle to actual institutional practice. Thus, we find that the court’s decree on many matters rests on establishing certain essentials that, in fact, are extremely difficult to establish.
Even if hard evidence on the socio-economic status of each caste / tribe was in abundance and not marked by ambiguity, the actual implementation of the reservation policy is anything but straightforward. First is the question of the denominator. What is the base to which 22.5% reservation for SCs and STs (or the additional 27% for OBCs or 10% for EWS) should be applied? In a university, say for faculty positions, should quotas be applied separately to each department, or a group of departments, or the entire university? What if a department has a faculty strength of three? There are nationally mandated quotas and state quotas. How does an institution work out the actual 22.5% seat allocation?
The nuts and bolts of this allocation are complex. There is the L-shaped 13-point roster (for organisations with up to 13 positions) and the 200-point roster (for organisations with more than 13 positions) in government employment that outline how individual positions get designated as reserved or unreserved, and if the former, for what exact category. This is also linked to the “carry forward rule” that specifies how the reservation status of seats, not filled in a given year, are treated in the next year. What happens to candidates from eligible categories, who qualify in the open selection list, called “meritorious reserved candidates” (MRC): are they counted as a part of the quota or not? It depends on what the category is.
Where is the Data?
When socio-economic data are neither sufficiently nuanced and comprehensive nor timely, any evidence-based policy relying on outdated or non-existent data is bound to run into hurdles. Nowhere is this more obvious than in the reservation policy. What happens when individuals migrate, convert to another religion, or marry outside caste / tribe? Do they keep their reservation status? Many court judgments include a line about adherence to caste/tribe custom, but how does one determine that? The interweaving of caste/tribe and religion produces curious situations. For instance, while Christian and Muslim Dalits are not eligible for reservation, STs who were not originally adherents of Hinduism, get reserved status if they convert to Hinduism. All these questions cannot be settled by survey data; but without data, all we get by way of “evidence” are claims and counterclaims.
Take this example. When the government wants to reserve posts in government departments for STs, SCs and OBCs, it has to satisfy the following requirements: (i) it cannot violate the 50 percent rule, barring exceptional circumstances; (ii) it must exclude the “creamy layer” from the reservation; (iii) it must obtain quantifiable data that the community for which the reservation is being provided is inadequately represented in the department; (iv) it must ensure that efficiency in services will not be compromised; and (v) for OBCs, the government must have quantifiable data that the community for whom reservations are being provided is backward.
At what socio-economic level does a group cease to be “backward”? What is needed is evidence on discrimination – as long as individuals are discriminated against due to their group / social identity, they need to be provided compensatory discrimination. But where is the latest, large-scale data? Most importantly – a question that Chandrachud does not ask – why should adherence to an amorphous, imprecise concept called “custom” be essential to determining eligibility for compensatory discrimination?
At various points, the book discusses the “50 per cent rule,” which comes from the understanding that reservations should be confined to a minority of positions and should be exceptional. However, as Chandrachud shows, the implementation of quotas in the interlocking often means that, in practice, the 50 per cent rule gets violated. He also rightly questions why the 50 per cent rule should be seen as sacrosanct. If comprehensive and disaggregated caste data were to reveal groups that require compensatory discrimination are more than 50 per cent in any given population, sticking to this arbitrary rule would undermine the principles underlying reservation. In other words, it is an empirical question that can only be settled with data. Also, with the 10 per cent EWS quota, the 50 per cent rule / norm is already breached.
The book starts with the pre-independence period and traces the evolution of the caste system all the way to the present. The writing is crisp, succinct, jargon-free, and full of examples, which makes the formidable subject matter considerably less daunting. It also reveals the massive quantum of work the courts have done towards implementing a policy that appear deceptively simple and is often criticised for being mechanical and rigid. The book reveals that the inner gears that drive the reservation engine are, in equal measure, admirable in their complexity and baffling due to internal contradictions that take years to be sorted due to ongoing legal battles.
The book focuses on the critical role of the judiciary and the executive in shaping the reservation policy, which does not give the reader an adequate sense of the massive opposition to the policy among the public and antipathy among administrators that collectively either continuously tries to undermine and disrupt the policy, or dilute the focus away from the most marginalised and stigmatised groups by expanding the number of beneficiary groups. Despite the various unanimous Parliament bills and strong judgments, reservations are strongly contested by powerful elites, who have no qualms about embracing hereditary privilege or gaining entry into institutions on the basis of their networks, social capital, and money, but decry the death of merit when they are compelled to share elite positions with beneficiaries of caste-based reservations.
Courtesy : Economic & Political weekly
