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Freedom Issue 2018: Essay

Liberty for Whom?

Madhav Khosla is co-editor of the Oxford Handbook of the Indian Constitution. He is a junior fellow at the Harvard Society of Fellows
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The flaws of India’s equality doctrine

IT HAS BECOME one of the defining features of Indian politics that disaffection among a section of the population amid broad-ranging governance failures invariably translates into a demand for reservations. The present moment is no different. While the Maratha agitation for reservations continues in Maharashtra, the question of reservations in promotions in public employment has resurfaced before the Supreme Court. In proceedings that have commenced before a five-judge bench, the Attorney General has urged that a larger bench revisit precedent and set new standards.

Ironically, the source of legal controversy is a 2008 decision in the M Nagaraj case, which gave the state enormous leeway in framing reservation policies. The case upheld a constitutional amendment providing for reservations in promotions with consequential seniority, on the condition that the state has ‘quantifiable data to show backwardness and inadequacy’ of representation. It is this elementary requirement for data that is under challenge. The Attorney General’s initial arguments question this need to demonstrate backwardness and inadequate representation, underlining the discrimination experienced by Scheduled Castes/Tribes and the difficulty of providing data in circumstances where appointments to posts are part of a constantly ongoing process.

There are important arguments to be made in favour of affirmative action. The reason why policies that preferentially target specific groups in society are necessary, and were seen as essential in the Indian context, is that the social constraints on a group may be so great that despite a formal commitment to individual freedom, individuals who form part of that group would struggle to be seen as individuals. The suggestion sometimes offered that individual and group rights are in tension and need balancing is thus only superficially true. Understood properly, policies that favour particular groups are ultimately motivated by the idea that we want individuals within that group to be seen as individuals; we do not want them to remain hostage to the identity that they have been forced to hold.

At its conception, India’s original constitutional text revealed a remarkable understanding of the subtleties involved in any public policy that treats some citizens differently from others. There was a broad appreciation of factors ranging from beneficiary identification to the arenas for special treatment to the ends that such treatment were meant to achieve. The thorough collapse of that appreciation over the past several years has made a mockery not merely of India’s textual commitment to the abolishment of caste, but also of its equality guarantee under the Constitution. The recent case regarding reservations in promotions is but an instance of the same.

In the famous 1992 Indira Sawhney case, the Supreme Court declared that reservations in public employment were permissible but were to exist at the entry level. The Court found quotas in promotions unjustifiable on the ground that, after a level-playing field had been created, there would be no basis to institute reservations. Constitutional amendments altered this position, enabling reservations in promotions along with consequential seniority. M Nagaraj did not strike down these amendments. As mentioned, it simply held that in instances where such reservations occur, ‘the state concerned will have to place before the court the requisite quantifiable data in each case and satisfy the court that such reservations became necessary’.

This judicial process is merely a requirement that state action be justified. All forms of state action carry the possibility of overreach and arbitrariness; they all carry the potential for abuse. To be governed by a constitutional order and the rule of law is to require that state action has a basis, and under our constitutional schema, courts are meant to inquire into that basis. To argue that the state should be permitted to discriminate between citizens without providing a justification for doing so is no different from allowing it to ban beef or criminalise homosexual acts. Many readers of this column will be more sympathetic to reservations in promotions than to a beef ban or Section 377 of the Indian Penal Code. But that is neither here nor there. At the level of principle, all signal a form of majoritarian politics—in the sense that they have the support of a majority of the legislature—but can present no case for legitimacy independent of their representative character. They can offer no justification outside of the support they carry.

The single-minded focus on reservations has not only limited the form of discrimination that is addressed within our legal framework, but also the kinds of victims and beneficiaries that are involved

The distinction between reservations at the entry level and in promotions is sometimes seen as one between equality of opportunity and equality of outcomes. Defenders of promotional quotas may challenge this, however, and point us toward the fact that the limited number of higher posts occupied by SC/STs suggests that equality of opportunity is not, in fact, achieved by quotas at the entry level. At least two answers might be offered to this important defence. First, if outcomes are wanting, then the question to be asked is how access to opportunities can be improved. To merely fudge outcomes as to suggest that all is well, because a certain number of SC/STs have reached the highest posts in the bureaucracy, is simply to provide symptomatic relief as well as to feel that the disease has been cured.

The second answer is that the present debate is not about reservations in promotions at all. Such reservations are constitutionally permissible. The debate is about whether the state must show that data warrants the reservations that are provided for. It is hard to see how any constitutional right to equality could exist without such a requirement. ‘The concept of equality,’ as the Supreme Court observed in Nagaraj, ‘allows differential treatment but it prevents distinctions that are not properly justified.’ What the state is in effect arguing is that it wants the power to discriminate between citizens, and the right to not offer any foundation for such discrimination.

This should raise alarm bells across the spectrum. Today, the state might be using this power for groups that we believe require preferential treatment; tomorrow, it might use this for any group it likes. If the state is, in fact, committed to special treatment for those whose condition demands it, it should have no problem in demonstrating the same. Today, the state is arguing that it should not have to demonstrate backwardness or inadequacy in representation; tomorrow, it could use this power for preferentially supporting groups that are neither backward nor inadequately represented. It is impossible to reconcile the state’s claim with the basic doctrine of equality. The state must defend any action that discriminates among citizens; it cannot escape that burden. This question of law is an elementary one, but the present moment is a further reminder of the more general form that our equality discourse has taken in India.

THE SINGLE-MINDED focus on reservations has not only limited the form of discrimination that is addressed within our legal framework, but also the kinds of victims and beneficiaries that are involved. We have, for example, no appropriate mechanism for dealing with discrimination in the private workspace. Class has entirely dropped out of our narratives on substantive equality, raising the troubling question of whether all of our current policies are convenient ways to divide the spoils among elite actors within different groups and keep the poor in their place. If we care so deeply about backward caste groups, why do we not even pause to wonder about whether the benefits to members of such groups are eaten up by those who might be placed in more advantageous social and economic positions within the group?

The reality of reservations in India is an open secret. It is accepted by many that the link between reservations and substantive equality has broken down, that such policies are now ways to placate different groups rather than create the conditions for meaningful inclusion, that such policies interact with caste-based politics in specific ways that further both and thereby take us away from the aspiration to transcend caste, and that when citizenship is built around groups competing with one another rather than around individual freedom, popular energy shifts away from state accountability to citizen rivalry. Yet many who might acknowledge some of these facts would also accept that the reality of caste-based discrimination in India is horrific, and that, even if our schemes of reservations are imperfect, perhaps this is all we have for the moment to address this reality.

One can sympathise with this acknowledgment but also see that an air of pessimism and cynicism is bad for politics and constitutional law. There can be little debate about the reality of caste- based discrimination or about the necessity for reservations as a general matter. The debate must instead be on the form that it takes and how best it can be used to further its ends rather than be hostage to passing political exploits. Without a conversation on that, the Indian equality doctrine risks becoming a caricature of its founding mission, and the reality on the ground risks remaining the same if not growing worse, for the extant narrative has little space for institutional changes that alter long-term opportunities. In noting that, it is also worth mentioning that the intellectual position of fixing outcomes without even attempting to build a narrative around fixing opportunities is not merely one that gives up on the enterprise of genuine equal opportunity. It reflects a deeper malady of the mind: the belief that however many opportunities are given to low-caste members, such members are doomed to fail.

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