Sagar Kamble
Two major incidents have raised concern for the inherent social justice angle attached to reservation policies in India: the recent reservation claims by regional ruling castes such as Maratha, Jat, and Patel and the Economically Weaker Sections (EWS) reservation for upper castes.
Reservation policies are enshrined in the Indian constitution as a part of affirmative action against caste-based social inequalities in India. Social justice has been the inherent basis of reservation policies, with the criteria of historical injustices and social and educational backwardness. However, regional dominant castes such as Patel, Jat, and Maratha have been increasing agitations for reservation demands in the last few years. In 2019, a separate 10 percent reservation provision was created for upper castes based on criteria indifferent from the provision in the constitution. For this reservation benefit, particular economic criteria were created exclusively for the section among upper castes. These two moves regarding reservations for upper castes contrast with the constitution’s objective of justice.
The Maratha reservation debate in Maharashtra has been in action since the recent agitations and a fast-unto-death attempt by activist Manoj Jarange-Patil in September 2023. Maratha reservation agitations have taken a turn to demand inclusion in the OBC quota. Similar political mobilizations in the past for separate reservations for Marathas failed to fulfill demand. As a result, they are demanding reservations under the OBC category. The central claim by Maratha activists is: “We have (and we can arrange) Kunbi caste documents, and thus we should get an OBC reservation!” Maratha organizations are using a historical argument (of being Kunbi) to prove the legality of their claim for OBC reservation. This move has raised the question of the relationship between the use of historical arguments and social justice policies (such as reservation) in India. It also raises the concern of a bureaucratic-instrumental approach towards reservation laws and policies, as expressed ahead.
Reservation for Justice: Legal and Democratic Claims
Within the conscience of the Indian Constitution, reservation is an act of justice. The question of justice is a moral and political one, not a technical-bureaucratic one. Thus, no claim can be non-political when it talks about justice. There cannot be so-called ‘purely legal’ and administrative claims. To establish the authenticity of their claims, various social groups in democratic countries use history—the past! For such claims to be identified as democratic, they must be just and lawful. But what would just and lawful mean?
If we are not abiding by the philosophy behind the particular legal provision and looking at it only from a procedural approach, then that would create room for tampering with laws by power holders. As no laws or provisions are absolutely accurate and flawless, there is always scope to take advantage of those procedural flaws and meddle with the original intent of legal provisions.
The aggressive agitations demanding reservations by dominant castes such as Patel, Maratha, and Jat are not abiding by the legal philosophy of the reservation. According to the 103rd Constitution (Amendment) Act, 2019 EWS, the recent provision for the reservation to economically weaker sections (EWS) from the upper castes is an example of such meddling. In this way, despite the egalitarian constitution, the privileged groups maintain their power using their instrumental and bureaucratic logic of law. The administrative rule of upper castes and the instrumental logic they apply to reservation laws and policies are reasons why safeguarding reservations as a social justice tool has not yet been actualized as envisioned by constitution makers. On one side, upper castes have been eroding the legal philosophy of the reservation, and they have continued shaming the people (students) from vulnerable communities for receiving the reservation benefits.
Use of History for Reservation Claims: Which Norms Are Being Upheld?
The modifications in the latest strategy of the organizations working for Maratha Reservation could inform the phenomenon of using history for reservation claims in a better way. The Maratha mobilization has used historical claims as an established avenue. They are using the argument of historical evidence to get this through a policy-based channel. The evidence is about Kunbi caste documents. Showing that all Maratha are Kunbis, hence eligible for the reservation under the OBC, is the fundamental logic that revolves in the plethora of endless debates.
However, there are more nuances attached to it. Do historical claims or historical findings act as standalone valid grounds for claims about justice (here, reservation)? Does it not have any connection with the present? Anne Orford, in her book International Law and the Politics of History (2021), delves into the question of the use of history for understanding the meaning of the law. When everyone tries to present their versions of the past concerning the law as the valid and objective one, how will we hold the correct version of the past? Anne Orford argues that the main concern about the historical claim is not objectivity but taking responsibility for the norms our claim carries with it. In this manner, when we use history to find the meaning of the law or the authenticity of our claim, we accept certain norms for the present and future. Anne Orford criticizes objective history claims for finding the so-called true meaning of law in the past. She urges scholars to embrace the creative role of ‘making’ rather than ‘finding’ the meaning of law. The debate on social safeguards and reservations in India can be examined in this framework. Thus, the question is, what norms about social justice are being created with recent historical and instrumental claims by upper castes?
This relationship between historical evidence and the validity of legal claims has never been objective but political. Not just for the provision of reservations but for similar justice-related provisions and narratives, the ruling class in India tries to come up with their own version of ‘objective’ history, denying the historical oppression and celebrating their so-called glorious past. All historical arguments are always rooted in politics and carry their possible versions for the future. Therefore, the central concern remains: What norms and principles are we promoting through our historical claims? This recent strategy behind the Kunbi document claim of Maratha organizations is not only the question of one caste or the state. This trend of bureaucratization of the reservation will diminish social justice and the rule of law. These ongoing strategies of upper castes for the EWS reservations and demands for inclusion in OBC symbolize a crisis of constitutionalism and unethical operationalization of legal provisions.
Historical claims are an essential part of social justice discourse in India. The evidence of historical injustices against certain groups justified their unique needs, and resultant safeguards have been introduced. Historically, the social evil of ‘untouchability’ lived for centuries until it received some attention in the last few decades. The legal discourse of social justice started evolving during the colonial period. During British India, the notions of nation-state, peoplehood, and citizenship were evolving on Indian soil in a modern sense. Various socio-religious movements took place in this period. The provision of safeguards for weaker sections, such as depressed classes (untouchables) and tribals (aboriginals), was given in the constitution of Independent India. It was the result of a decades-long struggle for their rights. They, being ‘historically’ oppressed, needed special safeguards and representation. The reservation given to them is based on more than just so-called ‘objective’ historical claims. The ethos for social justice is not merely built on historical evidence, and it is not even possible to locate it practically in history alone. Democratic claims are equally rooted in the present condition of the people or groups making those claims. This is the reason why the government, with regard to the claims of safeguards by various communities, appoints commissions to study the present conditions of social groups, such as the Kalelkar Commission (1953), Mandal Commission (1979), and Renke Commission (2006).
Bureaucratic Hijack of Reservation Laws: Instrumentality
The recent claims by Maratha activists over the demand for reservation and their inclusion in the OBC category, which is mainly based on the ‘historical claim’ of having ‘Kunbi documents as evidence’, is an instrumental approach to looking at the legal provisions. Such an instrumental approach to law can easily manipulate legal processes in the interest of the (claimant) group, which could exert a significant influence on the government. Initially, the green revolution did bring prosperity, but in the last few decades, non-remunerative agriculture after globalization resulted in the economic loss of traditionally dominant landowning castes like Jat, Patel, and Maratha. Most of them are Kshatriya-status-claiming castes. Now, they are trying to invoke the historical claim of being Shudra to fit in with the reservation policies. These communities, being in relatively higher populations in the respective states, could influence the electoral outcomes and, thus, influence the government. The problem of relative economic loss for the regional dominant castes needs to be seen in the context of structural changes in the Indian agricultural economy and the crisis of unemployment. It has created the myth that reservation is equal to getting jobs and employment, ignoring the economic crisis in the country.
Maratha political activists have been attempting to reduce the act of reservation merely to an administrative question. This move compromises the purpose of a historically established understanding of reservation for social justice. Such instrumental approaches, even when trying to claim objective history (with historical records and documents), are not just sidelining the ‘principle of justice’ but need to be ‘objective enough’ even if looking from their terms. There is not sufficient caste-based socioeconomic data. It should be understood that the demand for a caste-based socioeconomic census aligns with the legality and principle of justice behind reservation. Moreover, such a census would establish more legitimacy about the need for reservation.
The aberrative claims of the EWS reservation and the dominant caste’s demands for the OBC reservation are part of an instrumental approach to legal-democratic provisions. The EWS reservation has already done damage to the ethos of social justice behind reservation, and the new form in Maharashtra could prove to be the last straw to the social justice conscience of the country. Such political determinism among the privileged castes would eventually harm the democratic framework of the country. There is a clear connection between the use of history for claims about justice and present politics. There is an inseparable relationship between democracy and law. Without the rule of law, democracy would remain only procedural and under the rule of dominant groups.
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References
Orford, A. (2021). International law and the politics of history. Cambridge University Press.
Pathania, G. J., Jadhav, S., Thorat, A., Mosse, D., & Jain, S. (2023). Caste Identities and Structures of Threats: Stigma, Prejudice, and Social Representation in Indian Universities. CASTE: A Global Journal on Social Exclusion, 4(1), 3–23.
Wankhede, A. (2022). Affirmative action for economically weaker sections and upper-castes in Indian constitutional law: context, judicial discourse, and critique. Taylor & Francis.
‘We Are Kunbis, Why Separate Reservation For Us?’ Maratha Quota Activist To NDTV https://www.ndtv.com/india-news/maratha-quota-activist-manoj-jarange-patil-says-we-are-kunbis-why-need-separate-reservation-4534752 (last visited Dec 22, 2023)
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Sagar Kamble is a Ph.D. Research Scholar in political theory.
