Affirmative action and its limitshttps://indianexpress.com/article/opinion/columns/affirmative-action-and-its-limits/

Affirmative action and its limits

Andhra HC judgment redefines the complex relationship between religion,caste and reservations

Andhra HC judgment redefines the complex relationship between religion,caste and reservations

The recent judgment of the Andhra Pradesh high court that sets aside a sub-quota of 4.5 per cent for “socially and educationally backward classes of citizens belonging to minorities” within the 27 per cent reservation for OBCs reminds us of the contested notion of backwardness in the Indian context. Highlighting serious concerns regarding the ways in which social backwardness is officially measured in the postcolonial era,the judgment seems to evoke the complex relationship between sociological categories such as religion and caste,and the legality of affirmative action policies.

Broadly speaking,the judgment raises four sets of issues: identification of backwardness on a secular basis,homogeneity of minority communities,procedures adopted by the government and lack of empirical evidence to justify the government’s move. Since these issues are not given adequate attention in public debate,it is important to re-read this verdict in its entirety before discussing evidently known positions of various political stakeholders.

Let us begin with the PIL filed by R. Krishnaiah that questioned the constitutional validity of two office memoranda (OMs) issued by the Government of India in December 2011. The PIL asserted that the sub-quota reservation is minority religion-based and is,therefore,in violation of Article 15(1) and Article 16(2) of the Constitution.

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Accepting this plea,the judges say: “on the plain language of the OMs,it seems to us quite clear that the sub-quota has been created only on grounds of religion and nothing else. This is clearly impermissible in view of the specific language of Article 15(1) of the Constitution as well as Article 16(2) of the Constitution”. Now the question arises: is it possible to create a clear dividing line between religious belonging and backwardness of any social group in our policy discourse?

It is important to note that Articles 15 and 16 of the Constitution,which lay emphasis on the state’s adherence to the principle of equality,could also be interpreted in a completely different way. For instance,Article 16(4),which talks about the state’s commitment to affirmative action in favour of the identified “backward class of citizen” is given an open-ended explanation in the famous Indira Sawhney case by the Supreme Court. The court observed: “If the real object is to discover and locate backwardness,and if such backwardness is found in a caste,it can be treated as backward; if it is found in any other group,section or class,they too can be treated as backward”. Following this explanation,the National Commission for Religious and Linguistic Minorities (NCRLM,also known as the Misra Commission) argues that “minorities should be regarded as backward” because backwardness is a religion-neutral term.

These two examples clearly show that religion is not taken as a defining principle in determining the backwardness of any community in contemporary policy discourse; instead,the religious affiliation is recognised as an important aspect of Indian communities that plays a crucial role in the constitution of social hierarchies and functioning of societal power structure. The AP high court verdict,thus,misses this India-specific form of secularism that employs what political philosopher Rajeev Bhargava calls the notion of “principled distance” in relation to the matter of religion.

The high court makes another interesting observation. It notes that minorities are highly diversified social groups that cannot be treated as a homogeneous category for reservation. It is true that “minority” is not a uniform category. But the official order of the government did not create a new category of “minority” in the existing system of reservation at all! On the contrary,the already identified OBCs were divided into two categories and a sub-quota is reserved for those communities that belong to minorities and have already been identified as backward on a non-religious basis in the past. It is important here to remember that the Mandal Commission also discussed the question of minority religions,and worked out a criterion for identifying non-Hindu OBCs. That is the reason why there are many non-Hindu communities in the existing Central and state OBC lists. The Mandal Commission report recognises the fact that minorities constitute 8.4 per cent of the total OBC population. The court,it seems,overlooks this aspect and offers a mechanical interpretation of the text of the official order.

The third set of issues is about the procedure adopted by the government. The court argues,“there is a statutorily prescribed mode for identifying backward classes,namely through the National Commission for Backward Classes Act (NCBC Act),and therefore,that procedure must mandatorily be followed. The Central government cannot unilaterally add to the list of backward classes nor can it cull out a more backward class from the list,without reference to the NCBC”. This line of reasoning is again quite problematic. The statutory function of the NCBC,Section 9(1),is to consider the requests for inclusion of any class of citizens as a backward class. In this sense,the NCBC Act categorically establishes the procedure to include and exclude certain communities in the OBC list. Since the government did not add or exclude any community in the OBC list,the NCBC Act does not pose a procedural conflict in this case.

Finally,the court also notes that “absolutely no empirical evidence is placed before us to enable us to conclude or to support the requirement of carving out a special class of beneficiaries from the existing backward classes”. Interestingly,the court does not look at the “empirical evidences” produced by the Misra Commission report that clearly reveal the relative backwardness of minority communities,including those who are given reservation as OBCs. As a result,the court fails to recognise the larger recommendation of the Misra Commission about a comprehensive survey of Indian communities to know the changing socio-economic status of SCs,STs and OBCs.

This critical assessment of the judgment,I suggest,must not be placed in the established binaries of secular/ communal and/ or backwardness/ development. The issues raised by the judges are crucial and therefore should be taken as reference points to initiate an empirically informed national debate on backwardness and affirmative action,especially in the context of globalisation.

The writer is associate fellow,Centre for the Study of Developing Societies,Delhi