Don’t make some ‘unequals’ more equal than others

EVEN as the Opposition, led by Rahul Gandhi in the Lok Sabha, continues its focus on social justice and a caste count, the Supreme Court has adjudicated the constitutional issue of sub-classification of Scheduled Castes (SCs) in State of Punjab vs Davinder Singh, permitting sub-classification among SCs/STs for the purpose of reservation. The central question pertained to the constitutionality of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, where SCs were sub-classified to provide Balmikis and Mazhabi Sikhs first preference in the state reservation policy for SCs. Extending the principle from the OBCs to the SCs/STs, the court overruled the 2004 verdict in EV Chinnaiah vs State of Andhra Pradesh to allow state governments to carve out sub-quotas within the SC category. By doing this, “it rejects homogeneity in the backwardness of SCs and promotes homogeneity in the forwardness of SCs,” argues Asang Wankhede, a Dalit scholar at the University of Oxford in a recent article.

Three issues have dominated policy debates on reservation since Independence. The first is whether backward classes should be caste groupings or whether these would be identified by economic and occupational criteria. The second is whether listing and preference for these groups are to be undertaken on an all-India basis or by state governments. The third concern is the exclusion of other disadvantaged groups from this framework and whether more complex criteria of caste, class, religious community and gender should form the basis of entitlement than the caste-based reservation because, in actual practice and interpretation, backward classes have come to be synonymous with backward-caste Hindus.

Pressures have arisen from time to time to introduce changes in official categories to recognise economic and social mobility within caste groupings, especially OBCs. But it has been difficult to apply this differentiation measure to OBCs, and rather difficult, if not impossible, to take hard decisions ‘to put out of the benefit system’ communities with political and economic clout. It will not be easy to do the same for SCs.

However, the question of economic differentiation within castes and communities needs to be addressed. The sub-classification debate addresses this by taking on board the question of whether SCs are a homogenous class in their composition. The court weighed in on the side of heterogeneity to classify and give preferential treatment to the more backward among them with the aim of furthering substantive equality. It is based on a clear recognition that SCs are not a homogenous category anymore as there are differences in the extent of backwardness and the levels of advancement among them.

The reservation policy, from the start, was conceptualised as a policy of compensatory discrimination emanating from the traditional caste hierarchy. It was a remedial measure for handicaps faced by individuals and groups due to social discrimination. However, the 103rd Amendment Act in 2019 changed the rationale of reservation by creating provisions for 10 per cent reservation for the EWS (Economically Weaker Section) in higher education institutions and government jobs for those who are not beneficiaries of existing reservation. The focus now shifts to economic backwardness, divested of historic injustices to which the lower castes have been subjected.

The judicial approach in this case appears to follow the same line of reasoning and considers SCs and OBCs as equally situated within the constitutional scheme, although there are significant differences. The distinctions between the SCs, who are historically discriminated, and OBCs falling under the category of socially and educationally backward classes are significant. The OBCs constitute a heterogeneous category, more varied and diverse than the SCs and STs. Moreover, reservation for OBCs was designed to provide for power-sharing, whereas reservation for the SCs and STs aimed to reverse social discrimination and to increase equality of opportunity. The former aimed to change the balance of power while the latter sought to achieve greater equality. The bulk of the OBCs were disadvantaged but their experience is vastly different from the other two categories. The court recognises the difference between OBC and SCs, yet, it argues for the need to acknowledge and address the intense inequality within the latter to bring deeper equality.

While the jurisprudence of affirmative action has been evolving constantly from a notion of formal equality to substantive equality, many new questions have come to the fore after the latest apex court verdict — how are the levels of backwardness or forwardness of SCs to be determined and what will be the doctrinal philosophy and design of preferential policies of state governments from here onwards? Sub-classification for SCs in the absence of a comprehensive census of the empirical realities of SCs to indicate the status of backwardness and contradictions within them will be a big challenge. Evidence is required on socio-economic disparities to show that those who are relatively economically advanced are not suffering from social discrimination. But the Union Government is generally reluctant to release data on income, wealth and employment, leave alone caste-specific data on disparities, unless it favours the official narrative. Even the 2021 decadal census has been inexplicably postponed. Lack of reliable information on the socio-economic status of various groups is likely to be a major impediment in policymaking, including in the sub-classification of castes. This information is a crucial prerequisite for sub-classification.

While it is important to streamline reservation policies and deepen benefits to make them reach those who need them the most, this should not diminish reservation in terms of the social cost it imposes on SCs by pressing for graded inequality among them. We must not conflate social and economic discrimination, which can end up ignoring the rationale for quotas, which is social discrimination, not economic discrimination. Economic inequalities can be addressed by a greater focus on education, healthcare and social safety measures that have helped bridge inequality in many countries. Indian affirmative action policies were designed to make ‘unequals’ equal and not to provide reservation on every demand for preference by all or any community.