Litigation and discussions about reservation policies are recurrent in Indian political discourse. More than 70 years after the adoption of the Constitution, one might ask: what is the point of reservation policies?

According to a view that questions the relevance of reservations, India is advancing towards becoming a casteless society. The policies of liberalisation and modernisation have weakened the hold of caste, and caste has been replaced by other markers of identity, such as class, which is the dominant feature through which one understands Indian society.

The invocation of class over caste is also recurrent in demands to have reservation, if at all, dependent on economic criteria alone. The recent 103rd constitutional amendment providing for reservation for economically weaker sections (EWS) is an expression of this view, although it retains a caste dimension by limiting EWS to the upper castes and excluding lower castes and Scheduled Tribes (S.T).

A version of this view argues that reservation, far from helping to reduce the power of caste, retains and strengthens caste divisions. According to this idea, reservation introduces a form of identity politics that makes caste visible, when the goal ought to be the eradication of caste. Making caste, or religion, a topic of discussion is “votebank politics” that divides Indians. This view presents the policy of reservation as a paradox: How can caste-sensitive reservation policies fight caste-sensitivity?

To solve this paradox, we should remember an integral part of the caste system. In Dr B.R. Ambedkar’s words, the caste system is not just a division of labour but a division of labourers. The caste system is divisive insofar as caste is a constant from one’s birth onwards. By virtue of birth, individuals are segregated and assigned in different professions. Endogamy assures that family and social life stay within a caste. The caste system thus ensures a system of segregation.

In Ambedkar’s time, the system worked much like the legal systems of segregation such as apartheid in South Africa and the Jim Crow laws in the American South. It is no coincidence that in both these systems, norms against intermarriage were in place and strictly enforced.

Persistence of caste

Some of the worst excesses of the caste system might have been reduced, but the system is nevertheless unsettlingly prevalent to this day. Data from the comprehensive 2011-12 India Human Development Survey (IHDS-II), which involved over 40,000 households, found that 27 per cent of all households admitted to practising untouchability, with a majority of Brahmin households admitting to it. Education seems to make little difference here; 24 per cent of households with a graduate as a member are still practising untouchability.

Intermarriage, Ambedkar’s solution to break caste, is rare. The same survey found that only 5 per cent of all marriages crossed the boundaries of caste. It should, therefore, be no surprise that India’s society still suffers from a de facto segregation based on caste.

The privileged parts of society are still largely devoid of Dalits and other oppressed castes. A 2019 study of Indian media published by Oxfam and Newslaundry, titled “Who tells our stories matters”, found such a pattern. At the time of the report, all leadership positions in Hindi television news channels were held by upper-caste people.

In a recent article in The Caravan, Namit Arora reports that 96 per cent of all the faculty at Indian Institute of Technology Kharagpur belonged to the upper castes, according to a 2018 response under the Right to Information Act, despite reservation policies.

It is clear that reservation does not introduce caste. Caste already exists in the form of a segregated society in which the top positions are reserved for those from upper castes. The plea against caste-based policies, therefore, fosters a silent caste system. Although caste is not talked about, it is is very much present in the selection of who belongs and who does not belong.

Reservation is imperative for social integration. The alleged paradox is, in fact, no paradox at all. Caste-sensitive policies are needed to break the otherwise silent segregation of Indian society. A casteless society can emerge only when this segregation is broken.

Democracy at stake

The segregation of Indian society is also a threat to democracy. Democracy is a form of self-governance among political equals, and mistrust between caste groups and a lack of understanding of one another threaten this practice. This is why Ambedkar said that genuine swaraj required the abolition of caste.

He brings this to bear while highlighting the value of fraternity. Fraternity is not possible in a segregated society in which castes live side by side instead of together. In Annihilation of Caste, he writes: “(T)here should be varied and free points of contact with other modes of association…. This is fraternity, which is only another name for democracy.”

Universities and institutions of public employment need to bring individuals from all castes together. Only then can they be genuine democratic institutions. Without reservation, this is not possible.

The de facto segregation of Indian society also limits and stifles the prospects of a better life for many people. The obstacles are myriad; some of them reflect the economic disadvantage that Dalits and Bahujans face. The poor state of the public education system virtually forces candidates aspiring for select institutions or public employment to seek private schooling or schools under the Central Board of School Education.

Others reflect the disadvantage of not possessing cultural capital. Command over the English language is a key advantage in access to most positions of privilege in Indian society, an advantage possessed by those groups that are educationally already advanced over many generations.

Lastly, the barriers to progress are social in the form of caste prejudice and caste discrimination, including untouchability.

Reservation, a component of equality

Those opposing caste-based reservation also make another argument, pointing to what they consider a second paradox. How can discrimination be fought with discrimination? The Constitution grants every Indian the equal protection of the laws and the right not to be discriminated against. Even if reservation policies serve the valuable purpose of integration and de-segregation, as well as the purpose of equalising opportunities for all, such policies are nevertheless objectionable if they violate this important right.

For a long time in India’s constitutional history, reservation was understood to be a necessary compromise with equality. This sentiment was conveyed in the Constituent Assembly debates and in various Supreme Court judgments.

But this understanding of reservation is puzzling. It admits that an injustice is done to those missing out on government jobs or university places because seats are reserved for members of backward castes. The state has failed to treat them as equals and discriminated against them. Why should we compromise the great value of equality? Why should the state depart from the idea that rights are universal, and that justice is due to everyone regardless of caste, colour, or creed?

The idea that reservation is a (necessary) aberration from equality is no longer the view of the Supreme Court. Back in the 1970s, the Supreme Court in N.M. Thomas (1975) ruled that Article 16(4), which allows the state to provide for reservation, is not an exception to equality but rather a facet of Article 16(1).

The article, the Court reasoned, is merely an empathic restatement of the fact that the Constitution’s equality code, Articles 14, 15, and 16, allows the state to make reasonable classifications. In deciding whom to select for public employment or university admission, the state needs to distinguish between candidates. Such classifications are innocuous when they are reasonable. In N.M. Thomas, the Court held that some caste classifications, like those inherent in reservation, are indeed reasonable.

Any doubt about this understanding of reservation should have been put to rest by the Supreme Court’s affirmation of this interpretation in Indra Sawhney (1992).

The Court said: “In earlier decisions rendered by the Court till sixties, Article 16(4) was held to be exception to Article 16(1). But from 1976 onwards it has been understood differently. Today, Article 16(1) and 16(4) are understood as part of one and same scheme directed towards promoting equality.”

Therefore, the judicial approach that reservation is an exception to equality is now replaced by the idea that it is a component of equality.

In Indra Sawhney, however, the Court said something more. It held that reservation should not exceed 50 per cent. The Court cited Ambedkar to say that reservation shall be confined “to a minority of seats”. Excessive reservation would breach the principle of equality of opportunity.

But this is curious. On what basis did the Court arrive at 50 per cent as the upper limit for reservation? Ambedkar’s reasoning, which the Court cited, was based on understanding reservation as an exception to equality that cannot be greater than the rule. But once we understand that reservation is not an exception to equality, then the basis for a 50 per cent limit disappears. Nevertheless, the limit was reiterated and followed by subsequent judgments (Nagaraj, 2006).

In addition, consider the following example: Assume that in a region, candidates from the upper castes dominate private employment given the widespread discrimination in the labour market. Most businesses are owned by members from such castes and most educational institutions are comprised of them. In these circumstances, the state decides to give 70 per cent reservation to Dalits and Other Backward Classes (OBCs) considering their abysmal representation in private employment and public sphere in general.

The state is satisfied that the underrepresentation of these castes is established and wants to provide for overrepresentation of Dalits and OBCs in public employment to balance their lower chances in the private sector. The result would be equal chances for employment for every caste. While this seems justified, this appears to violate the arbitrary 50 per cent ceiling limit set by the Court.

Not all caste classifications are alike

Understanding reservation as a component of equality means that some classifications based on caste, like those inherent in reservation, are constitutionally permissible while others, for example a rule that forbids Dalits from entering a government building, are not. To sum it up: not all caste classifications are alike.

But why is one way of treating people differently based on caste acceptable while others are not? The answer lies in the deep-rooted, structural caste inequality that pervades our society. People do not start on equal terms on a level playing field. The status quo is vastly unequal. Ambedkar emphasised this during the Constituent Assembly debates when he said: “We must begin by acknowledging the fact that there is a complete absence of two things in Indian society. One of these is equality.” (November 25, 1949)

What should the Constitution’s equality code mean in a country riddled with such a lack of equality? On a formal understanding of equality, the Constitution takes no note of this background inequality. It holds that equality of opportunity is satisfied when, for instance, a rural Dalit girl with no prior English education and an upper caste boy who went to an international school compete in an entrance test. In deciding that reservation is a facet of equality, the Supreme Court was wise in rejecting this idea.

Moving beyond formal equality means acknowledging the social context. It means looking at equality not in isolation but in connection with societal structures and inherent disadvantages that people face for being a woman or a Dalit.

From this perspective, it is clear why not all caste classifications are alike. Reservation challenges the caste system by integrating society across the boundaries of caste. It is designed to break the segregation that maintains the caste system and ultimately weaken the hold of caste in society.

In contrast, caste classifications that exclude Dalits are designed to subordinate Dalits and prevent them from attaining equal status in society. Such oppression is what the Constitution disapproves of, not the invocation of caste as such.

A fundamental right?

Reservation is certainly permissible under the Constitution. But the big question is whether there is a fundamental right to reservation. This question has dominated the recent constitutional discourse on the equality code.

In Mukesh Kumar vs State of Uttarakhand (2020), the court said that there is no fundamental right to reservation.

The controversy arose because the State of Uttarakhand refused to gather data on the representation of Dalits in public service and failed to provide reservation to them. Critics of the judgment argued that the State would need to legally justify its refusal to provide reservation by citing adequate representation of Dalits in service.

In contrast, the State of Uttarakhand relied on the wording of the express provision, Article 16(4), and submitted that it was not bound under any duty to provide reservation.

Article 16(4) is worth extracting in full: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

The article states that “nothing shall prevent the State” from giving reservation. The plain meaning of the provision is clear: it allows the state to provide reservation but does not require the state to provide it mandatorily. The constitutional provision, unlike the mandatory provisions injuncting the state from discriminating, such as Article 15(1), is enabling in nature.

The Constitution does not mandate the state to provide reservation: it merely states that if the state chooses to make reservation, the parent provision will not prevent it from doing so.

This is the first problem with conceiving reservation as a fundamental right—that doing so will blur the distinction between two provisions of the Constitution which are contra-distinctly phrased.

When the Supreme Court held in Mukesh Kumar that the constitutional provisions do not confer the right to claim reservation and that the state could not be directed to provide reservation by the courts, it merely upheld a position of law faithful to the Constitution.

Here, it is helpful to make a comparison with the constitutional provision enabling the state to enact legislations of social reform and open access to temples, Article 25(2)(b). It is one of the clauses under the freedom of conscience and religion. Could one say that one has a right to have the state pass a social reform legislation? That simply does not follow.

Rather, when the state passes such a social reform legislation, it cannot be said to necessarily offend the right to freedom of religion.

Remedy in courts?

In a criticism of the judgment in The Wire, law professor Kailash Jeenger argued that a policy like reservation must not be left to the mercy of the political executive. The implication of this argument is that reservation policies are in better hands with the courts. Given the history of reservation policies, this is doubtful at best.

Consider the complicated history of reservation in promotions. In 1992, in Indra Sawhney the Court limited the rights of Parliament and governments to make reservation policies. Reservation ought not apply to promotions, according to the Court. The Supreme Court cited, among others, reasons of administrative efficiency. This invocation is curious since it relies on a highly speculative account. The only comprehensive study on affirmative action and efficiency in the Indian context is the one about the Indian Railways.

A study by Ashwini Deshpande and Thomas Weisskopf, published in World Development, found that efficiency does not decrease with reservation policies. Rather, it found that a higher proportion of S.C/S.T employees in upper jobs improved performance.

While the Court was quick to judge against reservation in promotions without social scientific evidence, it was Parliament that brought in a constitutional amendment in 1995 to restore reservation in promotions.

Then, in M. Nagaraj (2006), the Supreme Court attached conditions to reservation in promotions and diluted the constitutional amendment. For example, the Court required the state to show the backwardness of the caste, even for Dalits, in spite of the abundance of social scientific works demonstrating its backwardness. This requirement was later dropped in Jarnail Singh vs Lacchmi Narain Gupta (2018).

By attaching further conditions like obtaining quantifiable data regarding inadequacy of representation, with variations from time to time, the Court narrowed the scope for reservation that Parliament evidently desired.

The logic of the Court is also in tension with the later statement in Mukesh Kumar that denying reservation is in the subjective satisfaction of the state. In other words, it is a political choice.

If providing reservation is a political choice, then what is the need for quantifiable data? The need for quantifiable data arises only if one believes that reservation is an exception to an important constitutional right. But this understanding of reservation was rightly abandoned by the Supreme Court long ago.

Reservation as a political project

The reliance on courts may, therefore, be misplaced. Conceiving of reservation as a political project does not diminish its significance. Reservation remains so with sound backing from constitutional values. Part IV of the Constitution deals with the Directive Principles of State Policy, which are essentially norms that must guide governance.

The Directive Principles, while not enforceable in court, emphasise the socialist character of the state. They must entrench state policy. They are important tools to conceptualise a welfare state. They are not antithetical to fundamental rights. These principles and rights need to supplement and complement each other as indicated in Kesavananda Bharati (1973) and Abu Kavur Bai (1983).

Article 38, for example, says that the state shall strive to minimise inequalities in income, status, facilities and opportunities, not only among individuals but also among groups.

Article 46 refers to the state obligation to promote the educational and economic interests of the weaker sections of the people, in particular the Scheduled Castes and the Scheduled Tribes.

The Preamble, which aids constitutional interpretation, likewise refers to a socialist state and socio-economic justice.

Article 340 of the Constitution provides for “appointment of a commission to investigate the conditions of backward classes.” Articles 341 and 342 contemplate a presidential notification enlisting S.Cs and S.Ts which Parliament alone has the authority to change; the Court or the executive cannot alter such entries. The entries are, therefore, final, but subject to future modifications by Parliament.

All of this highlights that it is incumbent upon the state to act and remedy the pernicious influence of caste. It is a demand of political justice that caste inequalities and the hierarchy of castes are weakened and that we move towards a casteless society.

The political project needs to broaden and look at various ways in which caste is reproduced and hierarchy is entrenched. Reservation is one component of this broader project. The comprehensiveness required for the schemes for upliftment of the downtrodden was explained in detail by S. Nagappa in the Constituent Assembly in 1949.

Earlier, on November 30, 1948, during the Assembly debate, H.N. Kunzru said that “the State might come to think that it had done its duty by these [backward] classes by making this provision [reservation]”. Kunzru’s warning appears almost prophetic.

For reservation to be truly transformative, it must be accompanied by a strong commitment to overcome the segregation of the caste system. Only then will Indians be able to live Ambedkar’s vision of fraternity, or, as he called it, democracy.

(Kaleeswaram Raj and Thulasi K. Raj are lawyers at the Supreme Court, while Bastian Steuwer is a political philosopher at the London School of Economics. Article courtesy: Frontline.)