Reservation — An Objective Assessment

Yesterday, When I walking post-dinner on the roads of my colony, A boy whom, I didn’t know paid obeisance to me by saying “namaste”. I replied “namaste” with a curious mind of inquiry about this fellow. He immediately asked me “aap kya karte ho”(what do you do?). I said — I am unemployed and still searching for the right area of pursuit. Then, I asked him to tell me something about him. Initially, he told me about his mundane thing, and later he went on to explain his achievements and in the meantime, he had presented very critical views about the “affirmative action program” in India. Ostensibly, it was conspicuous from his narration, that his fortune was on the trailing end because of reservation policy.

This conversation left me to ponder about the merits and demerits of reservation policy. In this essay, I would examine the issue of affirmative action programs from virtue theory of justice, libertarian theory of justice, communitarian argument, meritocratic and egalitarian principles. Then I will visit the data to assess the objective vis-a-vis the outcome of the policy. Finally, I would put my opinion on the issue along with suggestions.

Philosophical Basis of Reservation -

Reservation is an instrument to fulfill the dream of Social Justice. then the natural question arises, what is justice? How Social Justice is different from Justice? what are the moral principles in upholding Justice? Justice as defined by Aristotle- “giving people what they deserve”, the next follow up is — who deserves what? justice is an instrument to reward those virtues like honesty, fidelity, etc which are praiseworthy and conversely punishing those virtues that are blameworthy like corruption, embezzlement, etc. So, Aristotle was of the opinion that people who hold good virtues, need to bestow the offices, honor, reward, and opportunities. But, do these sets of virtues are inherited by birth, or do they need to be cultivated in the social upbringing? The answer to the above question is slightly trickly. Because virtues are inculcated by genetics(for example aggression is the virtue commonly inherited in carnivorous animals) and the environment of upbringing. So Under the Aristotelian framework, when we want to provide social justice, our aim remains to provide a good environment to all for inculcating the praiseworthy virtues. but what about the past? if some community had been deprived of that environment, how to arouse confidence and bring them into the mainstream? Thus, there are three broad arguments that came into mind for providing social justice- corrective major, compensatory need, and diversity profession.

The corrective argument is a meritocratic conception of justice where it is of the opinion that everyone doesn’t have the same start. A person born in an affluent family would have better access to a teacher, books, and an environment that would help in cultivating noble virtues. In contrast, people born in poor families may not have above head start. So, we have to give some relaxation to people at the bottom rung.

Secondly, the compensatory argument pertains to correcting the past wrong. As often argued, it is a form of reparation which is being paid because of denied opportunities in the past. it may be very well argued that if people have gotten those opportunities, they may have been in a better place and such a program was not needed.

Finally, the Diversity argument brings the doctrine of proportionality. People of different communities need adequate representation because they are in a better position to understand the issue of that community. it further pushes the issue of the uniqueness of each community. Each community has its own specialty in terms of culture and problem-solving. They bring a different perspective to the table. The proponents of diversity argument are also of the opinion that it is the duty of a country to prepare citizens of each community in different fields, So their proportionate representation is the sine qua non for harmonious and constructive progress of a nation.

Further, does post inculcating praiseworthy virtues, can anyone assert a position because now he deserves it? the Egalterian like Rawls strongly disagrees with the notion of moral desert. He was of the opinion that “our success is not our own doing”. Because according to Rawl our success depends a lot on the “natural lottery”. Since, that natural lottery defines In which family and society we are going to be born(for example — freedom of speech as a virtue has no relevance under the rule of Aurangzeb). Rawls writes that the outcome of each person’s social and natural lottery is, as the outcomes of ordinary lotteries, a matter of good or bad “fortune” or “luck” (Rawls 1971, 74, 75). So, Under Rawls’s “Difference Principle” — In order to achieve distributive justice — positive discrimination of any order is permissible with the caveat that it should benefit the least well off.

Challenges to the above conception of Justice -

Libertarian Right theorists would strongly criticize the issue of reservation on two grounds — first as per Liberaterian theorists, we have certain rights because “we own ourselves” means we are the proprietor of our own person. So, denying “opportunity one” for others is unjust because society as a whole is asserting against the individual notion of “owning ourselves”. Second, the Reservation policy is a great hindrance in attracting bright talent because there is very little incentive to put in an effort in the very first place. This raises the hard question — Are Libertarian theorists not interested in social/distributive justice? A libertarian would say, ask the selected person to forfeit his seat or honor as a gesture of philanthropy not a matter of right. Since distributive justice is a breach of rights. What would have Immanuel Kant said? In his “Categorical Imperative” — Kant is of the opinion, you can’t use a person as means to achieve a certain end. it doesn’t matter how noble or virtuous that goal is. Kant will say — initiate a “head start” program(by giving needy scholarships, tuition, etc) program, built great community schools(that can compete with private schools), etc. Another challenge comes against the compensatory argument — why would I own the past wrong committed by members of my community? Isn’t like the Christian dogma of “initial sin” committed by Adam and the rest of Christians have to bear the cost of that sin? The Indian Society based on the “Doctrine of Karma” and “Nishkam KarmaYoga” of Krishna don’t believe in any kind of Original Sin. Nonetheless, the proponents of the compensatory argument would say — where you are in your current life has a lot to do with your ancestors doing(Remember — a healthy brain must have been fed properly by parents/grandparents).

Constitutional History of Reservation -

The First Amendment to the Constitution had Inserted Article 15(4). This provision was envisioned as the enabling provision under which the Central government with its discretion can make special provisions for the socially and educationally backward class of citizens, SCs and STs. Further, it needs to be clarified here, because of enabling nature of the provision, Any citizen can’t approach the Supreme Court(SC) for the enforcement of the above provision under Article 32. This Provision read with Article 14(Right to Equality) and Article 16 are called Triangle of equality. SC has interpreted the above provisions of equality in two sets of principles namely “formal” and “Substantive” Equality. Formal Equality of Opportunity is the view that formal rules should not exclude individuals from achieving certain goals by making reference to personal characteristics that are arbitrary, such as race, socio-economic class, gender, religion, and sexuality(envisioned in Article 14, 15, and 16). Whereas, Substantive Equality as a principle held by SC in NM Thomas 1976 Case takes into account the “circumstances of the beneficiary”. With power under the above provisions, Central Government has given reservations to SCs and STs with the quantum of 15% and 7.5% of total seats/vacancies(in educational and employment) respectively.

In the quest of making Indian society more equitable along with the first Amendment Shri JL Nehru under the mandate of Article 340, appointed the Kaka Kalelkar committee to examine the social and educational status of the other backward class of citizens(OBCs). The Kalelkar Commission has given its report on 30 March 1955. The central government has rejected the recommendations which inter alia contained reservations for OBCs. After Janta Party came into power, it has appointed the Mandal commission in 1979 to study the issues faced by the OBC community. Though Report was compiled in 1983, VP Singh Government has decided to implement it. it has conferred 27% reservations to OBCs. Later SC of India in Indra Sawhney Case examined the whole issue of reservation for OBCs, 10% reservation for Economically Weaker Section(introduced by Shri PV NarshimhaRao by central notification), and reservation in promotion(although it was introduced the way back in 1955 and upheld by SC in 1962 Rangachari judgment).

SC in the Indra Sawhney Judgement held that the reservation policy of the union government was constitutional for OBCs with an additional criterion of income. There came the concept of Creamy Layer. Further, Court held EWS reservation as ultra vires since this notification doesn’t derive its power from any statute or the constitution. SC has also held the reservation in promotion unconstitutional and set a deadline of five years post-judgment to end it. In order to nullify the effect of the Indra Sawhney vis-a-vis reservation in promotion for ameliorating the anger of benefiting communities, Parliament passed 77th, 81st, 82nd, and 85th Amendments. All these amendments were challenged in the M Nagaraj case. SC in Nagaraj Case held that these amendments were constitutional subject to the following conditions — first, promotion in a reservation is applicable for only socially and educationally backward class of citizens, secondly — the community needs to be underrepresented, and finally — the expedition of reservation shoundn’t affect the so-called efficiency in administration mandated under Article 335. This judgment in my opinion is very important because to validate the criteria of Nagaraj, you have to collect hard data to validate the case for promotion in the reservation. Thus, Data is essential to Establish the doctrine of “Substantive Equality”.

The issue’s with Current Reservation Policy -

Reservation as a tool for establishing social justice is a noble concept. The Rawls would have no issue even if reservation goes to 100%, with the caveat that it needs to benefit the least well off(remember difference principle). But there are some very hard questions that need immediate answers — first — Is reservation benefitting horizontally or it is some form of enterprise, that is beneficial to power elites of each eligible community. Since as per recent reply of Govt — 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs; Secondly — What about the issue of crypto-Christian(people are visiting church but they don’t change the religion on paper — mostly in Andhra)? Since Govt has no mechanism to verify religion and it is a direct violation of Article 366(people asserting for reservation must belong to the Hindu community). Thirdly — When will the reservation end? fourthly — Is it justify for an IAS’s Son/Daughter to enjoys the benefit of reservation and fourthly — has reservation as a policy is killing the meritocracy? and finally — Is Reservation as a tool acting as a prime divider of Hindu Society?

Conclusion -

Reservation as a policy to provide social justice is becoming the instrument of schism in Indian Society. I blame the subsequent government’s failure to create enough opportunities for the upcoming generation. From an economic point of view, resource crunch is creating more and more assertiveness to fetch my share of the pie. So, In order to overcome the issues following solutions in the medium and long term can be taken into account. first — Horizontal reservation in each group needs to be explored on an immediate basis to avoid making reservations benefit of the elite, by the elite, and for the elite. Second, to tackle the issue of crypto-Christian, a fresh regulation for ascertaining the religion of the beneficiary need to be enacted under which local priest along with Gram Pradhan(to avoid any collusion) will issue a certificate of no-objection. Third — there should be no reservation in promotion because it deeply kills the incentive to work hard. For avoiding the monopoly of a single community at a higher post, the departmental level exam for promotion needs to be conducted by a neutral body like UPSC. Fourth — The Government of India needs to come up with a white paper and place on record that once India will become a middle-income country, it will get away with the policy of reservation. Fifth — Introduce the head start program(like free coaching or scholarship) for SC/ST/OBC people and give them age relaxation or attempt benefit to appear in exam but don’t give the benefit of marks. This will remove the issue of merit entirety and people of those communities will have more confidence and finally — GoI needs to work on a broad vision to create enough opportunities for all especially in the health and education sector so the quest for reservation hunching became infructuous in long run.