The Supreme Court judgment in Ram Singh and Ors vs Union of India is a welcome check on the arbitrary ways in which caste groups have been included in the OBC lists. The judgment recognises that the demand for inclusion is driven in some cases by the pure political power of a group. Such inclusions make a mockery of reservations. They deny other backward groups fair opportunity. They muddy the normative objective of reservation policy. By insisting on standards of justification, the judgment will hopefully slow down the tendency to indiscriminately include politically powerful groups under the OBC ambit. The judgment is salutary in its appreciation of changing social realities and the need for more sophistication in thinking about the criteria used to include new groups. But in this judgment, and other recent ones, there are new frameworks struggling to come out. The implications of these frameworks are not clear.
The first is the framework of historical injustice. In one careful formulation, the court says that keeping in mind “only historical injustice would certainly result in under-protection of the most deserving class of backward citizens”. But in a slightly more far-reaching formulation, it says the “attention of the state must be concentrated to discover such [meaning new] groups rather than to enable groups of citizens to recover ‘lost ground’ in claiming preference or benefits on the basis of historical prejudice”. In the context of this case, this is a surprising claim. Historical injustice was never the dominant argument in the case of OBCs. They managed to appropriate a narrative of victimhood and discrimination that, in the fullest measure, belonged to Dalits. That even the Supreme Court manages to conflate them is a measure of the success of that ideological appropriation. The scope of the court’s claim is not clear. Presumably, it does not mean that historical injustice is not sufficient for SCs. If interpreted in the broad way that it is written then the judgment is not just a rationalisation of who gets included in the OBC category; it could be the first judicial step in dismantling the current structure of SC reservation. But the distinction between SCs and OBCs should remain judicially important.
The second issue is the knowledge production framework on caste. One of the issues in contention was whether the government could override the recommendations of the National Commission for Backward Classes (NCBC). Under the NCBC Act, the government can override the recommendations of the commission, provided it has compelling reasons. The court did not find the government’s reasons compelling. Part of the issue at stake is, who is the authoritative producer of knowledge on this subject? There are many entities: professional academic studies, commissioned agencies like the Indian Council of Social Science Research (ICSSR), previous government reports, the NCBC itself as an arbiter of knowledge, submissions by citizens themselves and, in the final analysis, the court taking a call on whether certain reasons are compelling in light of available knowledge. Part of what seems to be at play is the way in which none of these institutions seems to establish its credibility; each is impugning the other on some ground. The NCBC does not trust some academic surveys, ostensibly because they were biased (in a conflation of reason and identity, if a Jat does a survey on Jats, it appears to be suspicious). The state governments weigh knowledge differently, the ICSSR is non-committal, citizen data has to be mediated and finally the Supreme Court decides, without argument, that 10-year-old data cannot be validly invoked (the court clearly has no sense of just how difficult empirical research is).
But there is a deeper problem. There is a range of criteria for backwardness at play, from economic power to social mores. The question of what weight to allot different criteria depends on your assumptions about social change and normative commitments. The significance of data is not independent of a framework. These are never made explicit in a methodologically rigorous way. The court has decided the government cannot be trusted mediate between different knowledge producing entities. But is there any reason to suppose that the court is in any better position? This point is of wider relevance since the court is now doing so much knowledge mediation, without the tools to do so.
The third area is the framework of categories that capture backwardness. In both Ram Singh and the now notorious K.P. Manu vs Chairman Scrutiny Committee, the court seems to be pushing this thought. There are deprived and discriminated groups that are not captured by our traditional categories of caste, nor are those groups confined to one religion. Transgenders are cited as one example. What conceptual framework, beyond caste and religion, will capture them? Manu, however, was caught in other absurdities, that a “reconvert” can claim their former caste status if the “former” caste accepts them back into their fold. Whether or not you are entitled to reservation in this instance depends, not on discrimination and deprivation, but on whether a community accepts you back into its fold. This is distinctly odd. But along with Ram Singh, it is acknowledging the need for new categories.
The court hints at a new paradigm of backwardness that, while not ignoring caste, goes beyond it. It does not want backwardness to be based on perception. Backwardness cannot be determined merely on the basis of comparison with existing groups in flawed lists. More intriguingly, it says backwardness cannot be based on “mathematical formulae evolved by taking into account social, economic or educational indicators”. It is not clear what this means. It seems to rule out most current methodologies for identifying backwardness. On one interpretation, the court seems to be saying that in a proper reservation scheme, mere underrepresentation, though relevant, should not be sufficient. There has to be some judgement on the causes. A community that remains backward because misogyny prevents female education requires different remedies from a community actively discriminated against. But how much space is it opening up for new criteria? Rakesh Basant has, for example, proposed that the level of parents’ education is a good predictor of opportunity and is also easy to operationalise as a criteria for who should get benefits. Would that pass these tests?
In its plea to identify new groups rather than historical ones, the court seems to be moving towards the thought that discrimination needs to be part of the judgement of which groups are entitled. But the irony of reservations is that it counted heads, but never tackled the problem of discrimination. The only thing certain about the reservation debate is that every judgment opens more questions than it answers.
The writer is president, Centre for Policy Research, Delhi, and a contributing editor for ‘The Indian Express’.