Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
–Manisha Bhau, B.A., LL.B Student (Hons.), National Law University, Delhi
Despite reports that the numbers have nearly halved, India is still home to about 364 million people leading lives without access to basic healthcare, nutrition and sanitation. There are a multitude of reasons behind India’s rampant poverty, and recently the Government of India amended the Constitution to allow states to enact reservation laws for the economically weak sections (‘EWS’).
The aim of this post is to enlarge the debate beyond the question of constitutionality of the 124th Amendment and to analyse the efficacy of the Amendment as a policy for economic upliftment and the wisdom of conflating the reservation with poverty removal programmes. The question is whether reservation is the right policy to support the poor, especially because of the role that caste plays in India in its overlap with poverty and the inability to come out of it.
Affirmative action (‘AA’) policies can be either group-based (such as reservation for Scheduled Castes (SCs) and Scheduled Tribes (STs)) or class-based (such as EWS). The suitability of AA depends on the rationale behind it. There are different rationales, including efficiency and diversity in different countries depending on their national context. Michele S. Moses looked at various rationales in France, South Africa, India and USA to argue that the justifications should be rooted more in social justice than the economics of efficiency. There can be more than one rationale to a policy, but the ones in addition to social justice are based in the respective national history.
While other countries can adopt different rationales suited to their history and social conditions, India would have to account for its caste-based social structure. Moses correctly identified that “India is concerned with forward-looking social justice along with remediation (for past wrongs)”. The caste system, a unique phenomenon of the Indian sub-continent because of its constitutive role in economic underprivilege cannot be removed from a debate on AA.
If one were to look at the object of EWS reservation (keeping aside all political motives), it is to correct the difficulties in access to opportunities as pre-determined by class status. This is radically different from the rationale for reservation under Article 16 of the Constitution of India, which is to rectify the under-representation of the scheduled groups. The two policies do not have the same normative basis and they have manifested in the Constitution independently and to the exclusion of one another, which means that a SC/ST cannot claim a position reserved under EWS. Therefore, henceforth, the term ‘poor’ refers to those of an economically weaker status but not belonging to SC or ST.
The primary mishap of Indian politics is the conviction of the government and the upper castes that ample provisions have been made to remedy past wrongs through reservation, and to the detriment of merit. However, research shows that discrimination continues in wages, jobs and employment in both urban and rural areas despite AA laws. The expectation of social discrimination eroding prevails alongside adaptation of new forms of retaining assets and networks by the middle/upper castes. Discrimination which operates the shadow of law overpowers improved economic status achieved by some members of the SCs/STs.
William Darity Jr, on examining group-based AA versus class-based AA, has also stated that the very objective of AA is to make institutions and employment more representative and diverse, and not redistribution, though that might be a concomitant effect. Policy-makers need to appreciate the distinction between AA for increasing representation and anti-poverty policies owing to the unique objectives and expected outcomes. Economic redistribution cannot be achieved through reservation as it does not offer any solution to the phenomenon of poverty. It simply picks a few granting them an opportunity while poverty as a reality persists.
On the other hand, when reservation operates for caste groups it is expected that with more representation their social exclusion as a group will be corrected. This is precisely where reservation will fail to cure economic inequality, as it was never formulated to correct individual backwardness in the first place. It can only ensure that a group is given a space which the society renders them incapable of attaining otherwise, which is discrimination manifested through exclusion. Economic disadvantages are individual deprivations rooted in government’s failure to provide a minimum standard of living. The effectiveness of reserving seats, as correctly envisaged under Article 16, is in the fact that irrespective of who gets the reserved position, the SC/ST group as a whole comes out of the caste hierarchy.
One would not have to think much before finding the answer for why, despite the apparent limitations of reservation as a poverty programme, political parties envision an end to inequality through it. It is caste-b/ased politics that has made Indians overly reliant on reservation for all forms of inequality without a conceptual understanding. Dipankar Gupta wrote how reservation is about creating such resemblance among people from different groups that they are not stopped from acquiring socially valuable skills because of accident of birth. He added that:
[O]n no account should the removal of poverty be made synonymous with reservations. Reservations are only meant to create a measure of confidence and dignity among those who didn’t dare dream of an alternative life.’ For those with a lower economic status, but not an SC and ST, the struggle is not dictated by accident of birth but by incapability to convert their traditional benefits into jobs in the urban market and similar assets in the modern world, and their incapability is not caused by a history of discrimination, humiliation and alienation which causes this incapability. Their blockades will not cured by reservation as their inabilities never stemmed from group-based or social aspects in the first place.
This is not to say that reservation itself will end casteism but only that it is a necessary condition for doing so. It also has to be borne in mind that a majority of the poor in India come from the lower castes, and if the intent is truly to uplift the poor and not to corner seats for the general category, then seats reserved for EWS should be open to all for lessening caste monopoly and breaking the correlation of caste and class.
Additionally, recourse to reservation suppresses the fact that only a small section of jobs are actually covered under reservation and that the vicious cycle of poverty has more to do with wages, job security, bonded labour, ineffective agrarian policies and poor quality of government schooling. The government deflects its responsibility of appraising real causes of poverty and implementing effective anti-poverty schemes.
To the extent that the Indian government wishes to uplift the economically backward among the SCs and STs, these two policies can be merged by administering a class-based approach within the group-based approach through caste-conscious economic gradation/prioritisation. For instance, a certain percentage within the reserved category could be set aside where priority would be given to the economically backward. Other examples are concessions and education subsidies targeted towards those SCs and STs who are not well off.
Suggested Citation: Manisha Bhau, Special Undergraduate Series—Reservations Based on Economic Criteria: A Policy Assessment: Will the government succeed in bringing an end to poverty with reservation?, Int’l J. Const. L. Blog, Nov. 23, 2019, at: http://www.iconnectblog.com/2019/11/special-undergraduate-series—reservations-based-on-economic-criteria:-a-policy-assessment:-will-the-government-succeed-in-bringing-an-end-to-poverty-with-reservation?
 Omvedt, Gail. “‘Twice-Born’ Riot against Democracy.” Economic and Political Weekly 25, no. 39 (1990): 2195-201. www.jstor.org/stable/4396810.