03/06/2012

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Affirmative inaction
Pratap Bhanu Mehta Posted online: Mon Jun 04 2012, 02:24 hrs

Our quota scheme has no coherent answers even for basic questions India needs an effective and fair system of affirmative action. But the present system is a mass of contradictions and anomalies. The basic questions who you target, why you target and how you target them have no coherent answer. We have moved away from an emancipatory constitutional vision. Instead of liberating us from the tyranny of compulsory identities, we have reinforced them; instead of justice, we have delivered a simulacrum of justice. We have crowded out more imaginative alternatives. We have reduced specific histories of oppression to a political power play. Narratives appropriate to horrendous oppression of Dalits have been indiscriminately appropriated. The number of beneficiaries continues to expand. But internal to the system there are new exclusions. Particular castes in the categories of SC and OBC have disproportionately benefited from reservation. This is not surprising. There is a clamour to subdivide the reservation pie. In R. Krishnaiah vs Union of India, the AP High Court struck down an Office Memorandum, creating a 4.5 per cent sub-quota for minority OBCs in the OBC quota. The judgment does not close the door for a minority sub-quota. But it raps the government for unconscionable casualness. It did not follow the procedure for identifying backwardness as laid down in the National Commission for Backward Classes Act. More egregiously, the government failed to meet the test that this was a reasonable subclassification. The court argues: clubbing certain minorities such as Muslims, Christians, Sikhs, Buddhists and Zoroastrians, into one group does not per se lead to any conclusion of homogeneity among them. There was a selfincriminating cynicism in which this homogenous category was constructed. Minority OBCs ought to be included in existing scheme of reservations. Excluding Muslim OBCs, for example, solely on account of their religion is unfair. But is there a case to be made for a set apart from the fact that they are a minority? What does minority add to a backward OBC tag? The presumptive argument is this. Minority (particularly Muslim) OBCs cannot compete with Hindu OBCs. This is a plausible argument, but only superficially so. This will be true of many subgroups. Malas and Madigas; Gujjars and Jats cannot compete with each other. It is possible to bite the bullet and accept greater and greater sub-classification. Courts, since Indra Sawhney, have been open to subclassification. But since Chinnayya, they have baulked at the reduction ad absurdum this can lead to. The presence of different social groups in government needs to be enhanced. But the manner in which it is enhanced is important. We seem to be moving towards reducing the legitimacy of institutions entirely to social composition: so much for Gujjars, for Malas, for Jats, for Muslims and so on. This is not about equal opportunity, it is about distributing the spoils of state power strictly according to caste, thus perpetuating it. These are two entirely different visions, and we are unconsciously drifting from one to the other. There is another subtler issue. The court is repeatedly demanding evidence for backwardness. But there is no empirical and normative framework for the relevant evidence. For example, work by Rakesh Basant shows that it is quite likely that the best predictor of individuals access to education is their parents education. If true, it opens up an intriguing possibility. An effective targeting mechanism would be to design an affirmative action scheme based on the degree of education parents received, and cut through contorted community classifications. Or, at a greater level of complexity, there are deprivation indexes that allow more variegated targeting. But the relevance of this kind of
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evidence is ruled out right from the start. The evidence in terms of caste/ minority assumes the framework it seeks to establish; it seeks to perpetuate the dominance of these categories rather than transcend them. Some contend that the courts should entirely defer to the executive and legislature on these matters. However, it is not clear why courts cannot ensure whether like cases are being treated alike, or whether the constitutional project of emancipation from caste is being reversed. But the courts are normatively confused about the objectives of reservation. The recent Supreme Court judgment in UP Power Corporation vs Rajesh Kumar & Others, striking down UP government rules providing for consequential seniority, brings this out. One of the grounds on which it strikes down rules is insufficient data. But the demand for data is confusing. There is no clarity on the rationale for the unit of data: why should it be the cadre, rather than services as a whole? To what normative end do we require data? The court relies on Nagaraj, which had a normative core. Reservations are a device for compensating for unequal starting positions: they are justified in areas like admission 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 officers and reserved category officials was rising, almost to the point of making equality of opportunity a problematic concept. In Nagaraj, the court was trying to articulate an equal opportunity conception of reservation rather than an equal representation conception of reservation. But ironically, in UP Power Corp, the courts demand for data is premised on the very framework Nagaraj was negating. Is reservation about anti-discrimination, equal opportunity, social mobility or simply sharing the spoils of the state? In the case of Dalits, all four logics combined. But each has different logic, in terms of how you design programmes and what data is relevant. It is not clear what logic the court is using. The use of data requires a prior normative framework. Empirically, it also requires an incredibly disciplined sifting through endogeneity, selection bias and alternative hypothesis testing. The constitutional politics on reservation is about to heat up. The Supreme Court has engaged in an act of monumental evasion by not pronouncing on the constitutionality of breaching the 50 per cent limit on quota. We hope it will, in the appeal to Krishnaiah, use a large bench to systematically sort through a complicated set of issues. In the political vacuum that we have now, all bets are off on the kinds of constitutional inanities and pinched-up conceptions of citizenship our political parties will subject us to. Instead of focusing on the unsettling of the social order that growth produces, we will be back to the procrustean bed of identity. In the name of social justice, we risk making an irrational system even more irrational. The writer is president, Centre for Policy Research, Delhi express@expressindia.com

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