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Halfway to justice

The 50 per cent reservation mark is a principle of political morality....

Written by MADHAV KHOSLA |
July 16, 2010 3:08:14 am

Earlier this week,the Supreme Court passed orders on legislation in Karnataka and Tamil Nadu that provide for reservations in excess of 50 per cent in public employment and education. The cases dealt with challenges to the Tamil Nadu Backward Classes,Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointment or Posts in the Services under the State) Act,1993,and the Karnataka Scheduled Castes,Scheduled Tribes and Other Backward Classes (Reservation of Seats in Educational Institutions and Appointments or Posts in the Services under the State) Act,1994. The court permitted the laws to continue in operation,and much has been made of its apparent sanction for quotas in excess of 50 per cent. In reality,however,the court’s orders are interim in nature,and it would be premature to predict their impact on the final judgment.

Nonetheless,the spirited debate that the issue has invited gives us a useful opportunity to reflect upon the 50 per cent lakshman rekha. The Constitution has a unique approach to addressing equality: Articles 15 and 16 adopt an asymmetric anti-discrimination principle. Consequently,the central legal concerns in India are less about whether reservations are per se constitutionally permissible,and more about the relationship between these specific enabling provisions and the universal equality guarantee in Article 14,the identification of beneficiaries,and the intrusiveness of affirmative action measures. Once this constitutional scheme is appreciated,it appears that the 50 per cent limit on quotas is not a necessary ingredient of equality. It is tempting to view the limit as a policy question which,despite enormous ramifications,has little to do with the Constitution.

This argument remains unpersuasive,however,because it fails to recognise that the limit expresses an important principle of political morality: it sets the equality norm. In other words,exceeding the limit changes the foundations of our equality guarantee; the forms of discrimination that formal equality ought to protect and the exceptions it must seek to accommodate. The 50 per cent ceiling is not simply an attempt to allow for a certain degree of representation in the general category; it is an effort to limit the extent to which our society embraces proportional representation. Crossing the Rubicon towards a proportional representation model moves the focus from equality of opportunity to equality of outcomes; it narrowly limits access to public employment and education to identity-based considerations.

Earlier this year,the 50 per cent limit on reservations was at issue in Union of India vs Rakesh Kumar. The case dealt with reservations for Scheduled Tribes in panchayats in scheduled areas and involved an inquiry into the constitutional validity of the panchayats (Extension to the Scheduled Areas) Act,1996. The court upheld reservations in excess of 50 per cent on the rationale that panchayats in scheduled areas warrant exceptional treatment. In doing so,the court did not address how the Constitution structures the equality norm.

Reservations are typically viewed through the lens of distributive justice. The emphasis is on determining the most equitable distribution of benefits and burdens.

But reservations in panchayats involve representation and so may also be analysed in an alternate conceptual fashion. To wit,through the prism of democratic theory. Thus,a critical issue in Rakesh Kumar was how such reservations would impact political participation. The court skirted this issue,regarding it to be merely “an incidental consequence of the reservation policy.”

In Indra Sawhney,the court cautiously expressed the possibility of exceptions to the 50 per cent limit but remained inarticulate on its conceptual foundations. Reversing the equality norm moves beyond substantive equality; it is not simply a matter of degree and requires new justifying reasons for support.

In cases like Rakesh Kumar the burden is even higher,for distributive justice is not the sole criterion that merits examination. It is unclear how the court will address these issues as it considers Tamil Nadu and Karnataka’s laws. Mediating the tension between compulsory quotas and equal opportunity is no easy task,but explicating the equality norm that the 50 per cent limit embodies could be a good beginning.

The writer is a research associate at the Centre for Policy Research,Delhi

express@expressindia.com

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