A victory for the politics of inclusion

Engraved in stone ... in life?

THE Supreme Court of India has struck a blow for affirmative action in favour of the socially disadvantaged through its judgment on 27 per cent quotas in admissions to central institutions of higher education for the Other Backward Classes (OBCs), or lower and middle social strata.
The landmark judgment upholds the 93rd Constitutional Amendment under which the Central Educational Institutions (Reservations in Admissions) Act 2006 (CEI Act) was passed. This allows the government to institute OBC quotas in central universities, elite technology and management schools, and other institutions.
The court accepted caste as the fundamental, but not the sole, criterion of backwardness. In doing so, it recognised caste as the central axis around which discrimination occurs in Indian society. In keeping with Article 30 of the constitution, it also exempted religious-minority institutions from quotas.
The 5-member Bench delivered four separate judgments. But the verdict's basic thrust is unambiguously against discrimination, and for equal opportunity. The only contention by the petitioners it accepted is that the so-called "creamy layer," or relatively affluent/educated sub-group among OBCs, be excluded from quotas
The court has resoundingly reaffirmed the constitutional value of inclusion and facilitated the entry of OBCs in higher-learning institutionsand thereby, the professions, in which they're badly underrepresented.
The verdict sets out a clear norm for the future of society. It rejects the idea of equality as the equal treatment of groups who are unequally situated and have unequal access to opportunity.
Instead, it recognises that there are entrenched inequalities, based on birth, which produce and reproduce inequalities of status and life-chances at all levelsa situation of cascading iniquities.
OBC reservations will facilitate the equality of results/outcomes and make for a society based on caring and sharing.
Loath to lose privilege, the upper castes resented the CEI Act although it provided for a 54 per cent increase in the capacity of educational institutions and thus preserved their access to them. But the "twice-born" wanted to corner the additional capacity too.
The petitioners sanctimoniously cited the misery of out-of-school children, the necessity of universal elementary education, and above all, "merit."
The implicit assumption is that the low castes don't deserve higher education; they must be satisfied with primary schooling and the menial or clerical jobs this can yield. Society has no obligation to create opportunities for the disadvantaged. This violates the principle of inclusion.
The petitioners also argued that caste couldn't be a criterion of backwardness because the constitution mandates the creation of a casteless, classless society. The constitution does outlaw untouchability, and seeks to abolish caste-based discrimination.
Yet, caste cannot be abolished by legal fiat. That needs radical social reform. What the law can do is bring disadvantaged groups "to the forefront of civil life."
However, as Chief Justice K. Balakrishnan clarified in his judgment, the identification of Backward Classes "is not done solely based on caste." Other parameters are followed too, including "poverty, social backwardness, economic backwardness," etc.
The judges were even more forceful in rejecting the petitioners' argument that the CEI Act was intended to be a "vote-catching mechanism."
The main dissenting judgment was delivered by Justice Dalveer Bhandari, who ruled that an OBC would cease to be "backward" when s/he graduates, and the 93rd Amendment would become invalid if extended to private institutions. His verdict is at a tangent. The others maintained silence on quotas in private institutions, which weren't specifically challenged.
Logically, under the 93rd Amendment, reservations should be extended to private educational institutions too. It's here that 80 per cent of all seats in engineering and medical courses are located. They are sold to the relatively affluent for "capitation fees" and donations. That's where the struggle for a fair distribution of national resources lies.
The government apparently wants to do this in phases, and must be strongly supported. If there's a legal challenge to such extension, it must be resoundingly defeated.
The judgment should help raise the level of debate on "merit" in hierarchical societies. The merit argument is especially suspect in societies, which allow inheritance of private property.
Such privileges related to birth largely determine one's social position. Inheritance means that the affluent are at a vastly higher starting-point in relation to the disadvantaged.
Merit makes sense only when it measures the distance between the starting-point and the end-point. Most upper-caste people enjoy unfair advantage over OBCs primarily because of their starting-point.
The single "objective test" usually employed in competitive exams is a disputable criterion of merit. One's score in it often depends upon familiarity with the type of questions asked and time management, not comprehension.
Merit can only have a limited place in a public-oriented policy of recruitment. Gender, ethnic-regional balance, and diversity are also relevant.
A person born in a highly educated upper-caste family will have a totally different universe of knowledge, social contacts and elite acceptabilityand information about the availability of study courses, colleges, tutorial institutions, career options, etc. S/he can always call "Uncle" so-and-so in different professions for tips.
Typically, such advantage outweighs even differences of wealth/income. Past discrimination continues to produce inequality of opportunity even when there's no discrimination at present. The critical question is how to level the playing field.
Affirmative action is the solution. AA can include voluntary targets for recruitment of disadvantaged groups, special counselling and training, non-quantitative diversity promotion, etc.
Reservations, admittedly, are a rather blunt instrument, but politically, almost the only one available in India.
The quota verdict vindicates the UPA government's advocacy of social inclusion. It should draw some big lessons from it. The CEI Act was part of an initiative to defy the pressure of the market forces and "normal" processes of social discrimination, and put politics in command.
This is of a piece with the UPA's other progressive measures like the National Rural Employment Guarantee Act, which too bypass "normal" processes to promote democratic inclusion.
The UPA should take forward the politics-in-command agenda.

Praful Bidwai is an eminent Indian columnist.