India's Cocktail Recipe for Affirmative Action Should Be Replaced With a Simplified One

Ad hoc recipes of affirmative action seen from one state to another result in a khichdi of judicial reviews and pronouncements.

The last week of September was one of the most exciting weeks in recent constitutional history of India’s Supreme Court. From addressing the constitutional validity of Aadhaar, decriminalising adultery, allowing entry of women into Sabarimala temple and deciding whether to revisit the 2006 (M. Nagraj vs Union of India) verdict on reservations in promotions within reserved groups, the court announced some landmark judgments that are likely to remain a subject of intense public discussion over the next few months.

It is necessary to study and celebrate the liberal outlook pronounced by justices of the Supreme Court on issues to maintain constitutional propriety. It is also vital to recognise and acknowledge some intrinsic weaknesses of the legislature itself (as part of the political fabric), in debating and passing laws which, in their very order of passing, need to be better aligned with constitutional values, projecting a progressive social policy framework.

From the recent Supreme Court’s decision on promotions for reserved categories in government jobs, let’s take the policy-case of affirmative action for communities in India. A politically charged, cocktailed discourse surrounding the issue of reservation for oppressed or marginalised communities has quite often resulted in a muddled scenario, presenting no coherent social policy or legal framework for groups like SCs, STs. Quite often, such a state of political paralysis subsequently leaves too much in the hand of the courts to interpret and decide. The inevitable voids created from the lack of legislative interventions result in the yielding of extra-constitutional powers to the court itself.

Concept of creamy layer

On September 26, the Supreme Court introduced the framework of ‘creamy layer’ in ensuring reservations in promotions for Dalits (Scheduled Castes) and Adivasis (Scheduled Tribes). The creamy layer test is an umbrella concept that puts an income ceiling on people availing reservations in government jobs and education. Previous to this judgment, the concept was limited to the OBC (Other Backward Classes) quota only. However, from the court’s judgment, there are no deterministic criterion provided in ascertaining income ceilings for reserved groups nor is any information provided on how often the state may need to revise these ceilings (or on what basis). Additionally, there are some fundamental issues of a wider (social) policy ramification that require closer attention.

Firstly, the issue of reservation for SCs and STs is one allowing for constitutional remedies and protection based on historical social injustices done to these groups due to discrimination based on their social identity and not on their state of economic deprivation alone, as the creamy layer test seeks to address. As supported by P.S. Krishnan, an expert in the field of social justice, “backwardness in the case of Dalits and Adivasis cannot be judged using the creamy layer framework, but because they are subject to untouchability” based on their birth.

An individual who is a Dalit or an Adivasi may become a district collector or a higher-ranked state official, but may still continue to be discriminated based on her/his social identity. It was for this very reason that SCs and STs were earlier excluded from the creamy layer economic test, as their conditions of social backwardness had little to do with their state of economic deprivation.

From the Supreme Court’s judgment, there are no deterministic criterion provided in ascertaining income ceilings for reserved groups. Credit: Reuters

While the creamy layer test seeks to work under the principle of ensuring equality of opportunity for members of the reserved groups, equality, for its own sake, must be substantive in nature and not just formal. In ensuring equality of economic opportunity, there has to be a few essentials pre-conditions included in designing reservation policies that principally accommodate for a group’s backwardness, inadequacy of representation and overall administrative efficiency in implementing the policy itself. A similar argument was made earlier by Rajeev Dhavan while defending the Nagaraj judgment of 2006.

More importantly, the issue of caste or identity-based discrimination must be viewed in separation from economic, class-based discrimination. Very few people from reserved groups are actually seen to be part of some higher income occupational group, so, an ad-hoc measure like the creamy layer test can hardly be justified without concrete statistical evidence of some social trend observed within the group.

Secondly, a larger issue remains concerned with the inadequacies of the Indian legislator to present or implement a coherent social policy for affirmative action needed for all reserved groups. The challenge for India is that while many sections of the society remain disadvantaged in terms of social and economic opportunities, political or legislative action has further shifted to reserved groups to much higher relative discrimination.

As a number of communities across states have received (or continue demand for) a higher representative proportion of reservation in areas such as higher education, employment opportunities etc, – and so the reservation pie growing larger – affirmative action across India seems to have become a method of exclusion rather than inclusion. Recent cases from Haryana (agitation for Jat reservation), Maharashtra (protests for Maratha reservation) and Gujarat (Patel reservation demands) echo such socially exclusive, divisive behaviour among groups (often culminating into violence).

Economic backwardness within social groups, surfacing from rising inequities within the distribution of economic resources, mustn’t be substantiated as a legal reason for demanding a representative quota in alignment with other reservation policies for constitutionally safeguarded groups (such as SCs, STs) for protecting them against any form of social discrimination (with evidence of historical subjugation).

The case of Tamil Nadu

Here, the case of Tamil Nadu qualifies as a critical illustration. The state of Tamil Nadu began affirmative action programmes over a century ago (known as the Madras Presidency then) based on the Madras census report of 1871. It enacted an employment law that was primarily based on caste in 1927. By 1980, with successive governments, rate of reservation in higher education and employment stood at nearly 70%. To counter a Supreme Court mandated maximum of 50% reservation, Tamil Nadu set a precedent by including it under the Ninth Schedule of the Constitution (to limit judicial review).

While the measure did explicitly allow for significant upward mobility for reserved groups in government jobs and higher education, there has hardly been any critical assessment to understand the gains accrued to identified groups or seeing actual distribution of economic and social benefits amassed from employment related reservations. Correspondingly, ad-hoc recipes of affirmative action seen from one state to another, subsequently result in a khichdi of judicial reviews and pronouncements, also crowding out essential social benefits to be gained for affected communities and resulting in more social angst amongst groups than before.

Over the past 25 years, India has done reasonably well in reducing absolute measures of poverty and income deprivation. However, relative dimensions of inequality manifesting from the ‘inequality of access’ to basic social and economic services for suppressed communities have exacerbated. The legislator’s inability to address these issues surface from:

1) the lack of a political will to construct a simplified, periodically-reviewable social policy on affirmative action (compatible with constitutional guidelines) for reserved groups;

2) a conscious measure to use caste as a political tool for short-term gains (for vote-bank politics) resulting in long-term concerns from the widening of social fault lines.

While the Supreme Court can do well to review and contain the second reason through case-specific interjections, it is the duty (and mandate) for the legislator to do a critical assessment of all affirmative action programmes and design a simplified policy for social inclusion of reserved groups over time.

Deepanshu Mohan is assistant professor of economics at Jindal School of International Affairs, O.P. Global Jindal University.