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Down reservation road

The government’s move towards quota-based promotions reopens the debate on the meaning of equality

Written by MADHAV KHOSLA |
August 15, 2012 12:56:00 am

The government’s move towards quota-based promotions reopens the debate on the meaning of equality

Last week,the government decided to amend the Constitution and nullify a Supreme Court decision delivered earlier this year,that struck down caste-based reservations in promotions in public employment. The government’s move does not signal a fresh controversy. It comes against the backdrop of two decades of amendments relating to public employment reservations,and reopens the debate on our understanding of equality as a political ideal.

Article 16 (4) of the Constitution enables Parliament to make reservations for a backward “class of citizens” in public employment. As has been the case with other constitutional provisions relating to reservations,the debates on this provision have centred around questions like who should benefit from special treatment. The word “class” rather than “caste” was used — could “caste” be a factor in determining backwardness? After the 1st Amendment to the Constitution in 1951,it seemed that caste could play some role; it could be used as a means to uplift backward groups but not one for discriminating invidiously.

In Indira Sawhney vs Union of India (1992),which arose out of Mandal,the SC granted the state considerabole leeway in determining which groups should be identified for special treatment and how backwardness should be understood. It even permitted the use of caste as a dominant criterion,one that could be used as the starting point to determine backwardness. But it placed an important limitation on the state: the scheme of special treatment,of the asymmetric use of caste,must fit into a conception of equality. Reservations were certainly part of the idea of substantive equality,but they too had an internal logic. Thus,the court held,reservations in promotions in public employment could not be permitted,since the justification for reservations was unequal starting positions and the aspiration was the creation of a level playing field. As this was achieved by entry-level reservations,the court found the normative rationale for promotional reservations to be wanting.

In 1995,Parliament responded to this and amended the Constitution to permit promotional reservations. The Constitution now contained Article 16(4A),which made this possible. This was followed by a further controversy — the “carry forward” problem. Could vacancies in reserved seats be carried forward into future years? Indira Sawhney adopted a halfway house approach to this,holding that carry forwards were permissible but could not exceed 50 per cent of the total vacancies available for posts in the following year. Again,Parliament amended the Constitution to nullify this requirement. Typically,if reserved seats are unfilled,the demands of state capacity require those seats be filled by other general candidates. Now,as a result of the amendment,either posts would be unfilled with carry forwarding being extended indefinitely,or more posts would have to be created to accommodate the carry forwards.

The next controversy arose because promotional reservations had given rise to a peculiar phenomenon. The SCs/STs began to dominate higher civil service jobs,to an extent that far exceeded their prescribed quotas. Why was this so? As Rajeev Dhavan’s important work captured,SC/ST candidates rose higher in the hierarchy because,they claimed to be senior as a result of them being promoted earlier. SC/ST candidates sought entry into a non-reserved promotional post on the ground that they were eligible for both such posts and quota posts,and “accelerated promotion” to a lower post had given them an “accelerated seniority”. For years,the SC had held that accelerated promotion could not result in accelerated seniority. This was,effectively,a double promotion,and the SC evolved a catch-up rule prescribing circumstances under which seniority could and couldn’t be regained by a non-quota candidate. Again,Parliament amended the Constitution. The 85th Amendment altered Article 16 (4A),which now enabled “reservation in matters of promotion,with consequential seniority”. Along the way,Parliament also amended Article 335 — which requires reservation claims to be considered along with concerns of efficiency in administration — to permit the lowering of standards of evaluation for SCs/STs.

The SC’s decision to strike down the UP Government Servants Seniority Rules was not based on reservations in promotional posts; the Constitution was already amended to make this possible. Rather,the court found that the state had failed to demonstrate that the groups benefiting were inadequately represented in the state. Amending this requirement hits at the heart of,and further dilutes,the normative underpinnings of public employment reservations.

For some time,there has been growing concern within affirmative action discourse over our identification of backwardness. We structure backwardness entirely around caste rather than economic criteria,despite the fact that however much a person advances in life her caste cannot change. There is nothing like backwardness in the abstract — it all depends on the average in society,which is in part our reason for the 50 per cent cap — but we seem to have little clarity on the concept even in the particular. Courts have rightly invited much criticism for failing to seriously identify the link between beneficiaries and the special treatment they receive,equating,for instance,SCs/STs with OBCs.

But what the present controversy reveals appears to be more serious. Not only have we perhaps got backwardness wrong,but we are now in real danger of jeopardising the idea of equality itself. There will always be good and urgent arguments for and against affirmative action. But what we have now are forms of affirmative action that fail even on their own terms; they are absent of their internal logic and serve as tragic instances of the defilement of the constitutional ideals on which this nation was built. As we embrace this reality,we must wonder what it means to be without an idea of equality and whether membership can be sustained in such a political community.

The writer is at the department of government at Harvard University

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