Transforming equality in India
THE Constitution of India is a remarkable historical document that is essentially rooted in the idea of equality. It provides a contractarian basis for our constitutional society. For a considerable period it was assumed that equality was a consequence and indeed an imperative of socialism; the Preamble of the Constitution was even amended by the Forty Second Amendment Act, 1976 to reflect the socialist character of the Republic. The court was thus able to deduce equal pay for equal work and strike down policies that failed to adhere to socialist goals as in Excel Wear. But recent years have seen structural reform and disinvestment policies that have given a conscious space for growth to the market. Meanwhile the Preamble remains unchanged and has not prevented the Supreme Court from adapting to changing times, as in BALCO Employees Union v. Union of India.
For several decades since the early days of India’s independence, Parliament and the judiciary have endeavoured to move beyond formal equality to substantive equality on the ground. Despite hours of debate over the years and volumes of written word, both academic and journalistic, the decision to implement the Mandal Commission recommendations by Prime Minister V.P. Singh led to massive and dramatic protests in defence of meritocracy. In the Indira Sawhney case, the Supreme Court examined the decision at length and whilst it showed deference to the executive in the matter of need for special provision for weaker sections, it excluded the better-off sections described as the ‘creamy layer’ from those benefits. The 27 per cent OBC reservations in education finally came to be implemented under UPA-I with additional grants to educational institutions for expansion of their infrastructure to ensure that legitimate expectations of meritorious candidates are not sacrificed. Ashoka Thakur’s case put the Supreme Court’s approval on the idea of these reservations being part of the present generation’s efforts to advance equality between citizens.
Since independence, the model used by Indian law-makers for advancement of equality has been that of reservations or the quota system. Its earliest form is to be found in the Constitution itself: special provisions for dalits and tribals in the matter of jobs and seats in legislatures, (Art. 15(4) and Art. 16(4) & 16(4A)/(4b), initially for a decade, but since then periodically extended to the present and beyond. The courts have interpreted that as a legitimate attempt at political and social remediation of the historical exploitation and denial of equal respect and dignity to the former untouchables. One might see this either as a moral corrective (fairness and compensation) or a sensible political strategy to ensure the sustainability of our constitutional arrangement (enlightened self-preservation). Of course, there are people who remain convinced that there is little justification in visiting the ills of parents upon their children: why must the present generation pay for the damage caused by earlier generations? Justice between generations, after all, does not mean this!
The Supreme Court of India has consciously rejected such reasoning, although after judicially noticing the qualified affirmative action justification accepted by the American Supreme Court. Whilst the American courts insist upon specific justification for departure from formal equality, our own courts have accepted not only a general need but also an obligation to do so. Thus the mandate for reservation under Art. 15(4) and 16(4) has been liberally interpreted as they are seen to provide opportunity to established disadvantaged groups that would not otherwise have been possible in a strict meritocracy.
The band of reservations runs from provisions for Schedule Castes and Schedule Tribes in state sector employment (Art. 335), educational institutions as well as seats in legislatures (Arts. 330 and 332). In legislatures seat reservations were expressly intended for ten years but have periodically been extended without any resistance. More recently, other disadvantaged groups, including women, have been included in employment as well as education (22 per cent for dalits and 27 per cent for OBCs). Ashoka Thakur’s case has become the definitive pronouncement for inclusion of OBC (to be read as other backward classes, not castes) in educational institutions.
Significantly, the identification of backwardness is done on the basis of class backwardness, although castes are for practical reasons made the starting point. There are rules of thumb for judging the backwardness of a group or community but, as the several rounds of litigation before constitutional bench of the Andhra Pradesh High Court have shown, for backward Muslims there is no definitive test. As it turns out, the entire list of OBCs is a list of different castes, so much so that common parlance is limited to caste references, encouraging minority reservation protagonists to seek a quota for their communities on a similar loose logic of inclusion. For many decades it was believed that the Supreme Court would enforce a ceiling of 50 per cent, but the recent judgment S.V. Joshi v. of State of Karnataka has at least temporarily upheld 69 per cent in Tamil Nadu.
In expanding the footprint of empowerment, the state has introduced reservations in local self-government. But in Dr K. Krishna Murthy v. Union of India, while upholding Art. 243-D and Art. 243-T the Supreme Court nevertheless indicated that the principles that apply to Art. 15 and Art. 16 do not squarely apply to the later articles and that the period for this reservation could be much shorter. The process of identification of backwards for local self-government, at least in theory, is therefore distinct from identification of SEBCs (Socially and Educationally Backward Classes) inadequately represented in government. However, we are still to see an actual difference on the ground.
Interestingly, the court held, ‘We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned state legislations since there is no contemporaneous empirical data.’ Although in principle susceptible to judicial challenge for under-inclusion or over-inclusion, reservation decisions are left to the subjective (read political!) satisfaction of the ruling party and government. Whilst the Supreme Court has left it for a future occasion to test the validity of reservations, the Patna High Court was more willing in Janardhan Paswan v. State of Bihar and Krishna Kumar Mishra v. State of Bihar to strike down reservations where the legislature was already 70 per cent occupied by elected OBC members.
The ironic fact is that although caste politics remains a ground reality and several political parties survive on explicit or implicit advocacy and dominance of particular castes, public discourse pretends to emphasize our commitment to a casteless society and, therefore, our institutional ambiguity in not admitting the fact. This has also prevented us from gathering explicit data on castes since 1931 (except of SCs and STs). The recent chorus for a caste-based national census is obviously driven by the hope and expectation of backward classes (castes) to establish empirically that their numbers are indeed far greater than is officially admitted. The obvious object is to buttress their argument for a larger share of the cake of reservations.
Of course, if the Supreme Court notional ceiling of 50 per cent on reservations of all kinds stands, there curiously remains some confusion about whether OBCs get 27 per cent as a notional half of their population or simply the leftover after reserving 22 per cent for dalits and tribals proportional to their total population. The caste census as an independent headcount will be to the designs of the backward caste leadership, but if it is included as part of the data collection on living conditions of citizens (although the first phase of the census already having concluded), the information that the Supreme Court regularly admits not to have, might well change the entire discussion on backwardness and social equity.
Even as the reservation space gets crowded and there is a growing demand by other groups to be included, people are already eyeing the private sector. Nascent steps to find a foothold for dalits and tribals in the private sector led to the Prime Minister’s Office reaching out to industry with innovative affirmative action ideas. More recently the commerce minister and social welfare minister too have knocked on the door of industry to persuade them of their social obligations.
Simultaneously, far reaching efforts by way of skills development programmes linked with actual employment were launched for BPL candidates. Employability and not employment per se is the focus of the effort on the assumption that demand for skilled hands in several sectors is expected to grow exponentially in the next two decades. Reservation in private sector on the other hand would have to be considered in the context of competing claims of neighbouring countries for FDI. We will have to choose between a few jobs assured by reservation against the much larger number to spread around without the dampener of conditionalities for incoming investment.
During UPA-I tenure, the setting up of the Sachar Committee was a major milestone in public discourse in that for the first time Muslims were made the focus of concern instead of the more general term of minorities. Interestingly, amongst some far reaching recommendations of the committee is the setting up of the Equal Opportunity Commission and its companion, the Diversity Commission. The UPA-II government thought it appropriate to telescope the two: the EOC would upon being established be able to draw upon the data collected by the National Data Bank as well as the Assessing and Monitoring Authority.
But the real leap of imagination and paradigm shift comes in the proposed EOC breaking the public-private barrier as well as the strait-jacket of traditional notions of minority groups to provide an equality platform to all deprived groups. It will take a while for people accustomed to the vocabulary used since independence to become comfortable with the emerging idiom. What do they know of minority who only minority know? There is, however, an interesting convergence of views between liberals and conservatives in interpreting the ambit of the proposed EOC: the former would wish to see all disadvantaged groups get access to the EOC in a broad-based approach, whilst the latter would seek a comprehensive coverage on account of the traditional posture against appeasement of the minority groups alone. Besides, it has been argued that although minority groups are most obvious sufferers of disadvantage, the possibility of some majority groups also being victims of disadvantage cannot be ruled out entirely, as in the case of internally displaced persons.
In 1950 when the Constitution was adopted there was an imperative to focus on the then prevalent arguments in democracy of majority-minority entitlements. Furthermore, unlike other democracies India uniquely focused affirmative action, including reservations, on sections of the majority instead of minority communities. Thereafter, over the years we have established commissions to address the empowerment aspirations of different groups. So we have the Schedule Caste and Schedule Tribe Commission, the OBC Commission, Women’s Commission, Minority Commission, Safai Karamchari Commission, Denotified Tribes Commission among others. Our political language is replete with references to weaker sections, disadvantaged, socially and economically backwards or simply backwards.
Each commission has a restricted mandate to pursue the good of its earmarked beneficiaries. That indeed assures that the required degree of mandated benefits flow to the targeted group but permits little opportunity for inter-group comparisons and weighing of equities. None of the commissions have access to comprehensive data that gives a picture of the entire society. In many ways these commissions work under the same constraints as courts, in that the petitioner-complainants are expected to supply information pertinent to their claims and the issue is decided in an adversarial contest. The EOC will be equipped and designed to overcome that and indeed work with the larger picture, essentially addressing group entitlement rather than individual grievances, although the latter could well trigger off an enquiry about the former.
There is an assumption about democracies that minorities are susceptible to disadvantage and discrimination. But, there is a theoretical possibility that the majority is denied equal opportunity, as in the case of over-inclusion or irrational classification. Of course, every complaint of discrimination cannot be accepted on face value. Some of the exaggerated claims of Hindutva, for instance, deserve to be rejected. So indeed must be the extreme positions taken by Muslims or other minority persons claiming monopoly of opinions on issues relating to their respective communities.
An interesting development that is taking place of late is the inevitable move towards a caste based census. The demand came from quarters that presumably expect higher population figures to emerge for backwards, giving an additional argument for more reservations. But it also permits collation of data that the Supreme Court has been looking for in vain: how backward are the backwards? Without that information, being backward has become a political identity tag rather than a continuing social condition that calls for attention. One only has to contrast the data that is easily available about the number of elected representatives with the opaque picture of job share and educational opportunities.
Once caste census becomes the order of the day, it should in principle also be acceptable to note the caste of employees in the private sector to get comprehensive data on employment. But on an alternative view, the census will merely show caste figures independently and not as part of an individual’s biometric profile linked with living conditions. With the proposed EOC expected to seek sector-wise or even institution-wise data, there will remain a grey area of institutional attitudes. But certainly the EOC working materials to be collected by the National Data Bank are a prerequisite for the commission fulfilling the objective of becoming a new generation equality institution.
Many other traditional equality barriers are beginning to collapse. From the air hostesses case (Nargis Mirza) to permanent commissions for women in the armed forces has been a long journey. Yet our equality debate continues to revolve entirely around correction of deprivation of an individual rather than the political benefit of diversity to society. Compensating past wrongs is vulnerable to competing arguments on behalf of present citizens in no way responsible for the past. But enlightened public policy support for diversity in the work space or academia is a proposition that merits closer examination. This may well open avenues for minorities that are today thought of as suspect on the ground that government action based on the religion of the citizens is prohibited.
While Article 14 of the Constitution speaks of the right to equality and equal protection of laws, Article 21 essentially provides the protection of due process. To begin with it was just that and so long as there was legislative backing even preventive detention was willingly upheld by the courts. However after the self-consciousness of the habeas corpus judgement of the Internal Emergency period of 1976, the Supreme Court set out to expand the ambit of Article 21. Right to life has thus become the Right to a life of dignity (Francis Coralie Mullin), the latter including diverse attributes like health, education, privacy, livelihood, housing and shelter, legal aid and speedy trial et al. In the process, the two articles have converged to provide a non-discriminatory, just and fair regime for the citizen. Dignity is intrinsically linked with the idea of equality and thus with the equal bargain that forms the basis of a contractual relationship. An unequal relationship becomes an unconscionable bargain and an unconstitutional state of affairs as held in the Central Inland Water Transport Corporation v. Brojonath Ganguli.
For many years jurists and judges grappled with the inherent tension between Fundamental Rights (including Article 14) and the Directive Principles of State Policy. In a sense it was seen as the ultimate contest between equality and liberty or society versus the individual. The debate, relying heavily on a libertarian interpretation of the greatest good of the greatest number, culminated in the habeas corpus judgement giving short shrift to liberty. Subsequently, as noticed above, the Supreme Court corrected its tilt against liberty. In a parallel exercise it moved beyond Kesavananda Bharati to Minerva Mills and Waman Rao in order to harmonize the reading of the two chapters, thus giving a creative and wholesome substance to the basic structure thesis.
Equality is not an easy subject if the writings of John Rawls, Amartya Sen, Ronald Dworkin, Isaiah Berlin et al. are any indication. In Sen’s The Idea of Justice, the author examines the conundrum regarding a flute: should it be given to the poorest child or to the one who made it or indeed to the one who is trained to play it? We need to discover who gets the philosopher’s flute before we can hope to hear the sound of music.