The case against quotas isn’t about meritocracy

The five-member Supreme Court Constitution Bench’s order quashing the Maharashtra law granting reservations in admissions to educational institutions and in government jobs for the Maratha community is quite a complicated ruling. It does not reject the idea of affirmative action, which is what many opposed to caste-based reservations of any kind want, nor does it approve the free run of reservations for different groups. The 50 per cent limitation on reservations pronounced in the 1992 Mandal ruling by a ninemember bench of the Supreme Court is indeed a compromise between the need for affirmative action and the need to set up a cutoff point. But it is not a rigid cut-off point, and there is room to accommodate groups which need affirmative action even if it means breaking the 50 per cent barrier.

In its May 5 verdict, the Supreme Court had spelled out various reasons for disallowing reservations for the Marathas. It said that the move breached the 50 per cent ceiling on reservations and that there were no compelling reasons to do so because the community was adequately represented in all government services. It made the additional observation that the states have no right to determine which group belongs to the backward class, and that this can only be decided by the Central government through the National Backward Class Commission. The state government can only make its recommendation to the Central government. All these issues pass muster legally, but they do not close the possibility of discussion and the tenability of contrary and legitimate viewpoints.

It is but a truism that things are rarely if ever purely legal, and the politics of it all, and not always in the negative sense, cannot be brushed aside. It is on the political ground that the case of reservations for Marathas in educational institutions and government jobs will have to be assessed. And there would be sufficient arguments on the side of those favouring reservations for the Marathas, as well as of those who are opposed to it. And it is a moot point as where does the principle of equality figure in the middle of this political and social tussle.

A look at the three Articles of the Constitution related to equality show that the principle is not a simple one at all. Article 14 is about “equality before the law”, which means “equal protection of the laws”. And while Article 15 prohibits discrimination “on grounds of only religion, race, caste, sex, place of birth or any of them”, it says in Article 15(4) that this shall not “prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”. And power of the State to make “special provision” is reiterated in Article 16, which is about “equality of opportunity in public employment”.

The ideal solution would be when there would not arise the need to make any “special provision” for certain sections of society which has been historically unequal, not just in unthinking ways but in a deliberate and vicious manner. In Indian society, the battle lines have been shifting from that between traditional upper castes to the middle class, middle castes, and again to a battle between the newly empowered middle caste middle classes to the middle classes of Scheduled Castes and Scheduled Tribes. There is the further complication of a battle between the middle classes of different middle castes seeking special provisions. It is not an easy thing for either the political leaders or for the judges to resolve the social disequilibrium.

The reservations issue poses a special dilemma for the Shiv Sena and the BJP, as both subscribe to conservative ideologies of different shades. The Shiv Sena’s belief in the Maharashtrian identity is not sufficient to tackle the demands of different groups like that of the Marathas. Similarly, the BJP’s Hindu identity, which seeks to overlook the clash of castes in the intra-Hindu framework, is of no help in facing up to the demand for reservations by the powerful middle class middle caste groups like the Patidars in Gujarat, the Marathas in Maharashtra and Jats in Rajasthan and Haryana.

It is quite easy to derive satisfaction from the discomfiture of the Shiv Sena and the BJP, but it does not help in resolving the basic challenge of delivering the terms of equality as enshrined in Articles 14, 15 and 16. What is needed is a debate across different sections of society about equality and how the fairness principle as spelled out by American political philosopher John Rawls can be applied. In a memorable passage from his classical treatise, A Theory of Justice, Rawls had stated: “Justice is the first virtue of social institutions, as truth is of systems. A theory. however elegant and economical, must be rejected or revised if it is untrue; likewise, laws and institutions, no matter how efficient and well-arranged, must be reformed or abolished if they are unjust.”

This statement can serve as an ideal touchstone for discussions in the legislatures and courts, in universities and homes for debating the question of equality and how every individual and every section can have access to it. It will always remain a work in progress. There can be no permanent solutions. If today the Maratha community feels the need for reservations in educational institutions and government jobs, there must come a time through remedial laws that it will not suffer from those handicaps. It is a judgment call that the Marathas must take. Also, the leaders of the Maratha community must be able to decide as to who among the community really needs reservations. If every citizen has an equal right to education, and there are enough schools and universities for all, would there be a need for reservations? If there are enough jobs, would there be a need for reservations for government jobs for any community?

The BJP-led Central government can bring in the necessary legislation to break the 50 per cent ceiling in reservations, and all other parties would support it. But it does not provide a solution to the basic issue — education for all, and full employment.

It is quite easy to derive satisfaction from the discomfiture of the Shiv Sena and the BJP, but it does not help in resolving the challenge of delivering the terms of equality as enshrined in Articles 14, 15 and 16.