Quota questions on the bench
Can reservations in promotion be justified on the same grounds as that in
recruitment and admission? What is the objective of affirmative action –
anti- discrimination, equality of opportunity or representation? The court
doesn’t have all the answers. But isn’t it unfair to expect that it would?
PRATAP BHANU MEHTA
M. NAGARAJ and Ors vs. Union of India will un- leashafiercedebateabout
judicial thinking over reservations. Some are hy- perbolically
characterising the judgment as the return of Manuvad, while others see it as
the restoration of rationality to reservation programmes. Neither of these
characteri- sations is accurate. Supreme Court judg- ments are often an
attempt to broker a compromise between different principles, methodological
approaches, competing sources of authority, and even readings of
currentsinsociety.Sometimestheimpera-
tivesofcobblingtogetherjudicialmajorities
orunanimousdecisionscanleavetheirim- primatur on a judgment.
When the judi- ciarytriestobrokercompromises,clarityof argument and consistency are not
virtues easy to hold on to. While the judgment clarifies a few issues, its
net result will be more uncertainty. The first source of uncertainty is the
scope of the judgment. Most discussion has failed to notice the fact that
the exclu- sionofthecreamylayerforSC/STsapplies to matters of promotion, and
not recruit- ment. This is an im- portant distinction. Is the introduction
of the creamy layer for Dalits in promotions the thin end of the wedge that
will en- shrine the concept all thewaydown?There are indications that this
conclusion may be premature. Whatever one’s views on reservations overall,
the question of promotions poses a particular constitu- tional challenge
that recruitment or reser- vation in education does not.
The gist of the issue is this. Reservationsareadeviceforcompensating for unequal starting
positions: to that ex- tent they are justified in areas like admis- sion and
recruitment. But once a reserved category candidate has been recruited at a
particular level in the civil service, then how much more advantage should
they enjoy compared to a general category re- cruit at the same level. Aren’
t the starting positions now broadly similar? In the case of admissions and
recruitment, you are making unequals equal by compensatory measures. In the
case of promotions, the argument goes, once you have equalised, preferential
treatment will mean treating equals unequally.
This was leading to anomalies, where the gap between the chances of promotion of general
category officersandreservedcategoryofficialswas rising,almosttothepointofmakingequal- ity of opportunity within the service, a problematic concept. One can disagree with this argument, but justifying promotion in reservations has to meet a special challenge that justifi-
cation in admission and recruitment does not. The court has not closed the
door on reservations in promotion; it has upheld the constitutional
amendment enabling reservations. All it is saying is that the threshold of
justification for reservations in promotion has to be higher and the
onusisonthestatetogivethisjustification.
Curiously enough, this judgment does not clarify whether the objective of affir-
mativeactionisanti-discrimination,equal- ityofopportunityorrepresentation.These objectives have different logics. The court focusesonequalisingresultswithrespectto various groups, what the court calls, “equality in fact”. Almost all the empirical data the court is asking
for pertains to “equality in fact”, the extent of backward- ness and the
extent of representation. Talking about equality in fact has two odd
consequences. Overcoming discrimina- tionnolongerseemstobetheprimaryaim
ofaffirmativeaction.Theonlytestandjus- tification for reservation has
become: is a group disadvantaged on some objective socio-economic
parameters? And is it ad- equately represented? But in the zeal to fix
numerical quotas we have lost any sense of if and how discrimination still
op- erates within the services.
What is the ex-tentofdiscrimination?Thisquestionisdif- ferent from the question of whether
“equality in fact” has been achieved. The question both the court and wider
society need to ask is whether the problem of dis- criminationhasbeenobscuredratherthan clarifiedbythesingle-mindedemphasison proportional representation. The court says that reservations are “necessary for transcending caste not for perpetuatingit”.Butitunderestimatesthe
newsourcesofcasteism.Thecourthasnot taken a stand against using caste as the
predominant indicator. Proponents of more sensible forms of affirmative
action arguethatunlessallkindsofcomplexcrite-
riaaregivenweightindesigningaffirmative action programmes, caste will remain
the default indicator.
Two, once it is accepted that the only relevant test of equality of op- portunity is distribu- tion of places in pro- portion to the caste composition of soci- ety, it is difficult to see how caste will be overcome. One of the most egregious con- sequences of the sin- gle-minded
focus on reservations has been an unconscionable neglect of the things that
truly empower and create equality of opportunity: income, education and
access to public goods. This is not a problem the court can solve. But it
would be helpful if we recognised that the shadowy play of identity politics
is now an obstacle to genuine empowerment.
The court has brought some clarity to two issues: the 50 per cent cap on reserva-
tionanddemarcationofreservedandgen- eral category posts. But the court has
also, for the most part, deferred to the execu- tive. It has not questioned
the validity of constitutional amendments that enabled reservations in
promotion, or even the re- laxation of qualifications. But rather than
laying down clearly implementable prin- ciples under which reservation
policies should be implemented, or qualifications relaxed, it seems to
suggest that these mat- terswillbeconsideredonacasebycaseba-
sis.Anexplosionoflitigationandreferralto alargerbenchistheonlyassuredoutcome. Finally, on the thorny question of the special status of SC/STs, has the court opened a Pandora’s Box? Yes and no.
For one thing, the application of creamy layer for SC/STs in other domains
has yet to be tested. But in truth, politics blunted the SC/ST-OBC
distinction more than the court. Arguably, there would have been fewer
concerns about the fairness of af- firmative action programmes had OBCs not
been given the same status as Dalits.
Politicians who claim to speak on behalf of Dalit and OBC interests have to ask more honest questions about whose interests they serve. In the meantime, this judg- ment is not an
assertion of Manuvad. It is the symptom of a beleaguered court, hes- itantly
and somewhat confusingly, asking whether there is any scope for account-
ability in the design of affirmative action programmes. The writer is
president, Centre for Policy Research, New Delhi pratapbmehta@yahoo.com
pratapbmehta@yahoo.com