Examining notions of backwardness, equity
The EWS quota has now been upheld legally and constitutionally. But it still needs to be examined on a sound theoretical and empirical knowledge of discrimination
Reservations for economically weaker sections (EWS) are now a reality. Earlier, this month in a 3-2 verdict, the Supreme Court (SC) cleared a 2019 constitutional amendment bill that implemented this quota. The majority judgments upheld four issues — reservation on an economic basis (the two minority judgments also agreed on this aspect), the exclusion of Scheduled Caste (SC), Scheduled Tribe (ST) and Other Backward Classes (OBC), reservation in private unaided education institutions and a relaxation in the 50% quota cap. The EWS quota is now legally and constitutionally sound. However, whether it is grounded in insights from prevailing theoretical and empirical knowledge on discrimination remains an open question. Three aspects merit attention.
The first is backwardness and egalitarianism. The majority judgment, and the government before that, felt the EWS quota enabled the constitutional goals of creating an egalitarian society while counteracting inequalities. It is obvious that the justification (and even the inspiration) was drawn from similar quotas for SCs, STs and OBCs. But there are crucial differences in the sources of backwardness. The SC, ST, OBC reservations are based on backwardness caused by caste- or untouchability-based discrimination, which translates into a denial of equal rights to property, education, employment and civil rights. On the other hand, EWS reservation is based on a lack of economic capability due to the unequal working of the economic system. Caste discrimination is birth-based and tends to be permanent and hereditary, while economic capacity is temporary and constantly changing. This implies that while SC, ST or OBC suffer from caste discrimination, a high-caste EWS person will have the advantage of caste in employment, education and civil rights. Hence, it is not unreasonable to imagine that high-caste EWS would do better in terms of human development. For instance, data from the national sample survey on higher education from 2017-18 show higher education attainment rate of the bottom 20% income group of high castes (25%) was three times higher than that of STs (7%) and two times that of SCs (12%), respectively. A paper by this author and Khalid Khan shows about 36% of this gap in enrolment was due to caste discrimination and 65% due to economic factors. Another paper by this author, S Madheswaran and BP Vani in the Economic and Political Weekly last year showed that the probability of employment for SCs continued to be low compared to higher castes, and about 73 % of this gap was due to caste discrimination. Thus, EWS among SCs suffered lower education and employment, compared to EWS from higher castes; and at least part of the gap was due to caste bias. If the sources of backwardness differ, the solution must also.
The second is drawing a link between EWS reservations and similar tools for SCs, STs, and OBCs, something that two of the three majority verdicts did. Justice JB Pardiwala said “The new concept of economic criteria may go a long way in eradicating caste-based reservation. It may be perceived as a first step in the process of doing away with caste-based reservation”. Justice Bela M Trivedi said, “At the end of 75 years of our Independence, we need to revisit the system of reservation in the larger interest of the society.” Reservation for higher-caste EWS should be treated on a standalone basis of economic criteria; drawing such parallels between caste-based and economic class-based quotas has limitations and may prove counterproductive to the affirmative action system.
Theories of discrimination and empirical facts do not warrant the replacement of caste by economic criteria. Caste discrimination is undeterred by improvement in economic status, be it in education, employment or accessing civil rights. National Crime Records Bureau data shows attacks on SCs and STs topped 50,000 cases last year, underlining that bias and hatred persisted. It is wrong to suggest that BR Ambedkar supported the idea of withdrawing reservations in 10 years, even for political reservations. As far back as 1919, Ambedkar had forcefully refuted the argument that reservation revitalises casteism and argued reservation promoted equality and encouraged harmony by bringing all castes together at workplaces, educational institutions, public housing and in the legislature, encouraging communication, reducing prejudice and promoting goodwill.
The third is the exclusion of SCs and STs from the scope of EWS reservation. The majority judgment felt that since these sections already enjoy quota benefits, they need not be included. However, data from the National Family Health Survey and national sample surveys makes a case for their inclusion. For instance, in 2017-18, the share of SCs and STs among the illiterate was 13% and 23.6%, respectively, and among the poor, 24% and 17%, respectively. The rate of stunted, underweight, and anaemic children among SCs was 25 % to 27 %, and among STs, 11% to 13 %. The share of those living in slums and those without bathrooms or toilets at home was 24% and 28 % for SCs, respectively, and around 16 % for STs. In all these indicators of deprivation, SCs (with about 16% of the population) and STs (about 8% of the population) exceeded their population share. This is an obvious justification for their inclusion in the EWS category. Thus, it appears the exclusion is unjustified for these communities that evidently make up the poorest sections of society.
The EWS judgment marks a crucial moment in the evolution of India. With the growing privatisation of higher education, it will be important to see how EWS quotas are implemented in private, unaided institutions. Moreover, the apparent relaxation of the 50% cap also holds myriad implications in a society characterised by immense diversity of caste, ethnicity, race, colour, gender and religion, and where demands for representation in the economy, legislature, administration, police, military and other public spheres are only bound to increase. The takeaway from this discussion, therefore, is that verdicts by the apex court also need to be shaped by a sound theoretical and empirical basis.
Sukhadeo Thorat is former chairman, UGC and emeritus professor, JNU
The views expressed are personal