Affirmative action for under-privileged halted

India's Supreme Court has opened a can of worms by pronouncing itself against reservations for the low and middle castes (Other Backward Classes-OBCs) in Central institutions of higher learning.

This halts India’s attempt at affirmative action for underprivileged groups and will widen the growing divide between the higher judiciary and the executive/legislature. It has rankled political parties across the board. The judgment comes just when the concerned institutions were preparing to expand admissions by 54 per cent in a phased manner. Now, the admissions process for the next academic year will exclude OBCs.

Just recently, the government allocated Rs3,200 crores to central institutions so they can expand the number of seats. This represented an attempt to assuage the anti-reservation sentiment.

India’s upper castes see the judgment as a vindication of their stand against affirmative action. The OBCs and Dalits view it as an assault on their aspirations and entitlements.

A big contradiction lies at the heart of the judgment. A two-judge bench, comprised of Justices Arijit Pasayat and LS Panta, has ruled against the rationale of a verdict of a 9-judge bench in a 1992 case, which upheld OBC reservations in central government jobs. This logic should apply to university admissions too. But the Supreme Court says that mean treating “unequals” as “equals”.

The judgment comes on top of differing opinions handed down by Supreme Court benches, and efforts to play down caste-based discrimination. This is at odds with the evolving global thinking, reflected in the United Nations Convention on the Elimination of All Forms of Racial Discrimination, ratified by India.

In February, the Convention’s Expert Committee held that “discrimination based on ‘descent’ includes… caste”, and the Convention applies to India. If India is committed to social cohesion and eliminating casteist prejudice, it should honour the Convention and systematically promote affirmative action.

However, the Pasayat-Panta judgment minimises the importance of affirmative action. It’s based on two arguments. First, there are varying estimates of the OBCs’ proportion in India’s population. Their last census enumeration was in 1931. Without an “objective” determination of the current proportion, the centre shouldn’t have created an OBC quota.

The second, more far-reaching, argument holds that creating quotas is itself invalid, and recommends “a different form of preferential treatment…”

This militates against the logic of reservations—even for Dalits (Scheduled Castes), which is integral to the Constitution. But the Court balks at this.

Is there real uncertainty about the OBCs’ proportion in the population? Opponents of reservations claim that the 1931 census is outdated and that post-2000 estimates by the National Sample Survey (NSS) and the National Family Health Survey contradict the Mandal Commission’s numbers of 1980.

However, the Mandal Commission did not base itself on the 1931 census alone. It constituted a 15-member social scientists’ committee under eminent sociologist MN Srinivas to identify OBCs. It seminars and prepared four separate schedules for rural and urban areas.

All states were given these for conducting sample surveys in each district. The commission sent out questionnaires widely and published notices in national dailies inviting public responses.

The experts spelt out 11 different criteria of backwardness, including caste, low education, income, dependence on manual labour, early age of marriage, school dropout rates, low work-participation rates, etc.

Low income, for instance, was determined on the criterion that the value of family assets and number of families living in kuccha houses is 25 per cent below the state average. All social, educational and economic indicators were rated by points.

On this basis, the Mandal Commission identified 3,743 groups as OBCs. It also made a dozen recommendations, of which reservations was only one. The others included land reform, programmes for educational and economic upliftment, etc. The NSS’s estimates that OBCs are 32 to 42 per cent of the population and the NFHS’s figure of only 29.8 per cent are flawed. The NSS is not equipped to survey caste. You need a group of demographers, sociologists and political scientists to do that on a district-wise basis.

The NSS and NFHS used self-ascription. This is unreliable: people describe their caste according to how they think they’ll benefit from it.

Yet, even the NSS-NFHS estimates are well above 27 per cent. It’s not denied that OBCs are severely under-represented in higher educational institutions. There is a strong case for affirmative action in their favour, and an even stronger one for Dalits.

The second argument of the Pasayat-Panta judgment derives from a United States Supreme Court verdict in the Grutter v Bollinger case, on a Black student’s admission to the University of Michigan Law School. The Court upheld the admission, but only because it was “narrowly tailored” not to discriminate against those who don’t belong to racial or ethnic minorities.

To be “narrowly tailored”, a race-conscious admissions programme cannot “insulate each category of applicants with certain desired qualifications from competition with all other applicants”. Instead, it should consider race/ethnicity as a ‘“plus’ in a particular applicant’s file.”

This rules out “quotas” or reservations for minority categories, and mandates a points system for disadvantage. In India, most universities don’t follow a points system. The US judgment was pronounced by a court headed by William Rehnquist, an ultra-conservative appointed by Ronald Reagan. It was a setback to the cause of social justice. It’s tragic that the Indian Supreme Court, the guardian of a progressive constitution, should follow a conservative precedent.

If India aspires to a degree of social cohesion and a caring-and-sharing society, it must pursue affirmative action. This may not always take the form of reservations. These are blunt instruments. But that cannot be an argument for opposing affirmative action—as many upper-caste people do.

There can be other supplementary approaches to quotas, including special points for a family history of illiteracy/poor schooling, origins in a backward region, etc. But such a system can evolve only if affirmative action is first accepted.

That’s where the rub lies. India’s upper castes have never fully reconciled themselves to affirmative action and sharing power. The latest judgment has reinforced their resistance.