Savarna Subversion of Reservation

Bobby Kunhu

I was approached on behalf of a Dalit woman friend who is planning to contest the upcoming local body elections in Tamil Nadu from a general constituency and was being misled that a) a reserved category person cannot contest from a general constituency and b) that if she does contest from a general category seat and wins, she has given up her rights to reservation and cannot further contest for the post of the president of that local body. In the course of my research for the same, I had an epiphany about how there is a sustained attempt, particularly by savarnas – and not just at the level of lower level bureaucrats and politicians, but also the higher judiciary in subverting the very spirit of reservations. It is in this context that I thought it important to record my reflections on the subject in a public platform. I will start with addressing the questions that were put to me and then go on to analyze the latest decision of the Honorable Supreme Court on the subject of reservations.

1. Can a person eligible for reservations contest from a general constituency?
   General constituency means unreserved seats and any person regardless of caste, creed or gender and whether such person is eligible for reservation can contest from a general constituency. In Jitendra Kumar Singh vs State of UP, the Supreme Court clearly lays down that “If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category.” Further in disposing of Bihari Lal Rada vs. Anil Jain, Justices L. S. Panta and B. S. Reddy of the Supreme Court ruled that “The expression belonging to the general category wherever employed means the seats or offices earmarked for persons belonging to all categories irrespective of their caste, class or community or tribe. ”The unreserved seats euphemistically described as general category seats are open seats available for all candidates who are otherwise qualified to contest to that office.” Again the whole idea that people eligible for reservations aren’t eligible for general category is absurd inasmuch as its corollary means that the general category is “reserved” for those with social privileges defeating the qualitative purpose of reservations. Given that caste census has been jettisoned, one of the few ways to figure out caste wise distribution of population would be to look at caste distribution in primary school enrolment and that shows 45% OBC, 19% Scheduled Castes and 11% Scheduled Tribes leaving 25% for the rest that includes savarnas and other religious groups. If we contextualize this with the Mandal Commission estimation of OBCs at 52% of the total population, then it seems clear that OBCs are represented at much lesser level than their actual population. In other words, given the thumb rule pronounced by the Supreme Court in Indra Sawhney that caps reservation at 50% (the rationale for that remaining moot), this illogical argument suggests that a population of less than 25% should enjoy access to 50% of the spoils of reservation! Personally, I am all for 100% reservations, so such subversive confusions are avoided and each community should get a share depending on its population – in other words – proportional representation in politics and public service.
2. Can a person belonging to a reserved category elected from a general constituency contest for the post of President of a local body – such a post being reserved?
   The corollary of the same principle stated above in reply to query 1 is applicable here. Election to the posts within a local body is an independent, separate and subsequent process from direct elections of members. It is a process where representatives directly elected in turn elect the executive that will run the local body. Firstly, regardless of the processes through which the direct elections happened, the elections to the post of the President is separate and if such a post is reserved for any kind of social disability, a person with such social disability, whether she has won the elections from a reserved or general category is eligible to contest for the same. Secondly, the social disability on account of either caste or gender (two categories recognized in elections to local bodies) do not disappear just because a person managed to contest and win an election from a general constituency.

I have repeated at many instances that reservations are not a largesse or welfare measure or even an affirmative action policy to ensure structural equality, but arose from a political settlement that was arrived between Mohandas Gandhi and Dr. Ambedkar resulting in the Poona Pact and consequently the 1935 Government of India Act. The unfortunate aspect of the reservation discourse in India is not only this factor is ignored but also that the perspective that informed the Constituent Assembly Debates on reservations have been completely ignored (until recently in a subversive fashion, which I shall discuss later in this essay)!

Several members of the Constituent Assembly rubbished the notion of “merit” that is being used to undermine Reservations. For instance, while discussing introduction of provisions relating to public service commissions Dr. P. S. Deshmukh vehemently and clearly argued that: “…people’s capacities cannot be measured by mere passing of examinations or obtaining the highest possible marks. But those communities who have had the advantage of English education, because they were prepared to be more servile than the rest, think it is a preserve of theirs, and whenever anybody gets up and speaks on behalf of the millions who have had no chances of education, they consider it as a threat to their monopoly on the part of the rest of the communities and accuse the advocates as communal and communally minded. There is no communalism in this. Neither I nor anybody who speaks on their behalf want any particular community to dominate, where as those who oppose this move are interested only in particular communities. They want to preserve communalism while accusing us of communalism because they have had the advantage of education which they fear will be taken away. They think and urge that merit is or can be tested only by examinations. But so far as the masses of the country are concerned, the millions of our populations who have not had even the chance to get primary school education, they have no place so far as the public services are concerned, so long as the present system lasts.”

Phool Singh supports this position by asserting that; “Much has been made of merit in this case; but equal merit pre-supposes equal opportunity, and I think it goes without saying that the toiling masses are denied all those opportunities which a few literate people living in big cities enjoy. To ask the people from the villages to compete with those city people is asking a man on bicycle to compete with another on a motorcycle, which in itself is absurd. Then again, merit should also have some reference to the task to be discharged. Mr. Tyagi interrupted Dr. Deshmukh by saying that it is a fight for the illiterates. I think, however sarcastic that remark may be, he was probably right. Self-Government, means a government by the people, and if the people are illiterate, a few leaders have no right to usurp all the power to themselves. This cry, this bogey of merit and fair-play is being raised by those who are in a[n] advantageous position and who stand to suffer if others also come into the picture.”

However, in evolving the jurisprudence around reservations, the Supreme Court till recently did not resort to the above arguments raised in the Constituent Assembly and took a direction to justify affirmative action within a Rawlsian paradigm. The dissent note of Justice R. Subba Rao in T. Devadasan vs. Union of India 1964 SCR (4) 680 puts forward this direction saying; “Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race —one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Article 16. The expression ―nothing in this article‖ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.”

This is carried forward in State of Kerala vs. N. M. Thomas, 1976 SCR (1) 906, where Justice A. N. Ray postulates that; “Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.”

Citing the above, Justices Chandrachud and Bopanna attempt a marked and radical shift in the evolution of jurisprudence in debunking the merit argument that is often posited against reservations in the context of OBC reservations in the All India Quota (AIQ) for undergraduate and post graduate admissions to medical colleges in Neil Aurelio Nunes vs. Union of India Writ Petition (C) No. 961 of 2021 remarking that; “This is not to say that performance in competitive examination or admission in higher educational institutions does not require a great degree of hard work and dedication but it is necessary to understand that ―merit is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement. Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making. But the idea of merit based on ―scores in an exam requires a deeper scrutiny. While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit. Even then marks are often used as a proxy for merit. Individual calibre transcends performance in an examination. Standardized measures such as examination results are not the most accurate assessment of the qualitative difference between candidates. At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, 48 which are also shaped by lived experiences, subsequent training and individual character. The meaning of ―merit‖ itself cannot be reduced to marks even if it is a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Additionally, since success in examinations results in the ascription of high social status as a ―meritorious individual‖, they often perpetuate and reinforce the existing ascriptive identities of certain communities as ―intellectual and ―competent by rendering invisible the social, cultural and economic advantages that increase the probabilities of success. Thus, we need to reconceptualize the meaning of ―merit…..An oppositional paradigm of merit and reservation serves to entrench inequalities by relegating reserved candidates to the sphere of incompetence, and diminishing their capabilities.”

So far this trend looks progressive and moving towards a better reservations jurisprudence, except that the order is in two parts, the first dealing with reservations for OBCs in the AIQ and the second part discussing the validity of Economically Weaker Sections (EWS) reservations within AIQ. The honorable judges import the logic of the inappropriateness of merit in discussing reservations for “backward classes” defined in the Constitution and apply it without qualification or convincing arguments to EWS: “In the judgement pronounced on 20 January 2022 on the validity of OBC reservation in AIQ seats, we have dealt with the challenge to the power of the Union Government to implement reservation in AIQ seats. The Union of India in view of Article 15 (5) and Article 15(6) of the Constitution has the power to provide reservation in AIQ seats since these seats have been surrendered to the Centre.”

In other words, what the mischief of these orders is that it uses the logic for reservations in instances of caste discrimination to justify incentives for economically backward savarnas. The problem is that caste backwardness and economic backwardness are poles apart and to conflate them is to defeat the constitutional purpose of reservations. To use a concrete example, one can definitely find a Brahmin living below the poverty line, but regardless of her poverty that may even lead her to begging, one would not find her cleaning toilets, carrying night soil or cobbling! Justices Chandrachud and Bopanna refer to “Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom” in building their jurisprudence while addressing the merit reservation dichotomy. I wonder how many people from the EWS category can claim “centuries of calculated oppression and habitual submission”?

This judgement has already started on the expected direction of discourse with Yogendra Yadav and Prannv Dhawan waxing eloquent about its novelty and consequences in the op-ed pages of the Hindu. They might very well be right as this could serve as a starting point for many anti-reservation ideologues and activists to convert to supporting reservations. Till now the only way that savarnas could subvert reservations was to create fake caste certificates which would be demeaning to their caste prestige. Now, they can do so without affecting their caste by just faking income certificates. Neither the honorable judges nor the commentators seem to have understood the fundamentals of social hegemony in India, nor read the seminal work “Annihilation of Caste”. Because, if anything, the judgement is only going to dilute the social justice and equality jurisprudence in India.

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.”
― B.R. Ambedkar, Annihilation of Caste 

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Bobby Kunhu is a lawyer, researcher and writer.

Illustration by Nidhin Shobhana.