By RAJEEV DHAVAN
The Union governments new-found policy of quotas in professional institutions smacks of vote-gathering populism, claims to fulfil social equality and threatens caste tensions in the name of justice. No one can doubt the importance of social equality to Indian governance. Affirmative action is a constitutionally ordained part of Indian governance. The equality of the Constitution has little value if it cannot (a) prevent discrimination and (b) help the disadvantaged through affirmative action. The two key areas of equal opportunity in India relate to education and public employment. In both areas, populism has taken over.
Affirmative action was in the original Constitution of 1950 and affirmed for education by the first amendment of 1951. But affirmative action does not consist of quotas alone. It consists of a whole range of supportive activities at primary and other levels, extra help, scholarships and social benefits. No doubt quotas are a part of affirmative action. In 1963, the Supreme Court in Balajis case fixed a limit of 50 per cent for education, which was adopted by the Mandal case (1992) for public employment. But, even though a 50 per cent quota is permitted, we should remember that quotas are not mandatory and that 50 per cent is a maximal limit. It is not necessary to compulsively move towards 50 per cent, still less so as a political gimmick without sufficient reflection.
Just as the American Constitution is not race blind, Indias Constitution is not caste blind. That controversy is over. The Supreme Court rightly decided that caste could be a consideration for defining backwardness. To the extent that this might entail some tension between the forward and backward castes or groups, Indias polity will simply have to grin and bear it. Indeed, in the Mandal riots of 1990-92, the tension became unjustifiably volatile and hostile. But there is a lesson to be learnt from it.
Faced with the worst form of endemic racism, the American supreme court in the Michigan cases (2003) has virtually ended quotas but affirmed other narrowly tailored affirmative action. The Indian debate has gone in the reverse direction. All other forms of affirmative action have been marginalised. Those policies are in disarray. Corruption haunts other forms of affirmative action expenditure. There is an obsession with quotas.
India is committed to some system of quotas in both education and public employment. The question is for whom, how and to what extent. Firstly, where seats are limited, the for whom question remains important. If a preference is called for, the primary beneficiaries have to be SC and ST over the other backward classes (OBCs) even though both form large vote banks. Indeed, Justice Krishna Iyer rightly spoke of a super-classification amongst the backward classes enabling preference for SC and ST as preferred beneficiaries. So far, in relation to IITs, IIMs and other government institutions, the Centre followed this super-classification by restricting quotas to SCs and STs. Its decision to extend quota benefits to OBCs is pure and simple politics. OBCs should be allowed benefits other than quotas.
Secondly, the how question remains important. Apart from supportive programmes other than quotas, there is a tendency to lower eligibility standards for quota candidates. In Preetis case (1999), the Supreme Court noted how quota candidates were sought to be permitted in one state even if they got zero in eligibility tests! Quota-based affirmative action combines efficiency with justice only if the two competing candidates are more or less equal. In such a case, preference is given to the quota candidates without compromising standards or competence. The possible combination of quota and incompetent eligibility is lethal.
Thirdly, the 50 per cent limit cannot be stretched to its outer limits. Within the outer limits are also preferences for residence, institutions, political sufferers, disabled and others. The 50 per cent limit is already overcrowded. Quotas are an annual affair. They are as much an opportunity for merit as for quota candidates. The idea of reservations is to advance the disadvantaged. It is not to punish merit candidates many of whom could be equally poor. One girl from Bangalore ruefully described future admissions as a race in which the quota candidates are already at the winning post. Fifty per cent is too high and too inegalitarian. Even if OBCs are within quotas, the overall reservation should not be more than 20 per cent. But is the government prepared to scale down SC and ST quotas to benefit the OBCs? At present, there is no discerning policy. There is only a general vote-gathering largesse showing little application of mind.
Fourthly, there is the question of the creamy layer of all groups who sponge the quota. The creamy layer should be excluded for both SCs and STs as well as OBCs. Finally, there are financial fees adjustments to be made if 50 per cent of all admissions cannot pay normal fees to meet even the annual revenue expenditure. This is a matter of concern that cannot be ignored.
So far, Arjun Singh has limited himself to government institutions. The 93rd Amendment (2005) will also include quotas in private institutions. This is a practice run for serious problems that loom ahead.
The writer is a senior Supreme Court advocate.
at 11:56 AM