Both upper caste and quota creamy layer cite merit. But their goals are different

The debate on the reservation or quota system in India is never-ending. The Supreme Court of India recently said that “reservation is not a fundamental right”. The court was hearing petitions challenging the Narendra Modi government’s decision to not give reservation to the Other Backward Classes (OBCs) in the All-India Quota seats for admission in medical colleges. The Madras High Court has also repeated this remark on Monday. The Supreme Court has started gently pushing the government to exclude the ‘creamy layer’ among the Scheduled Castes (SCs) and Scheduled Tribes (STs) from reservation benefits.

Whether it’s a court order or a civil-political observation, the common point is that they all intend to take the debate towards initiating a review of the existing reservation system.

India’s so-called upper castes have forever been against reservation because it not only affects their claim to government jobs but also hurts their innate caste-based superiority. Therefore, they want the reservation system to be reviewed. Although, they invoke arguments such as reservation on economic grounds and as justice to the poor, etc., but their larger motive is to see the end of this constitutional practice in India.

But over the past few years, the demand for a review of the reservation system has also started coming from some castes of the reserved category as well, whose complaint is that they are not getting the benefits of quota. So, theoretically, these castes are the beneficiary of the reservation system, by virtue of their inclusion in the list of OBCs and SCs, but practically they aren’t. These are the deprived castes — extreme/most backward castes (E/MBCs) under the OBCs and Mahadalit under the SCs. The members of these castes support the continuation of the caste-based reservation but want some improvement in it too.

Complaints of deprived castes

The main complaint of the deprived castes (E/MBCs and Mahadalit) with the existing reservation system is that they are not getting the benefit of reservation because numerically larger and economically stronger castes of OBCs and SCs are the ones who mostly end up getting the reserved seats. To look into the above grievances, particularly of  E/MBCs, the Modi government formed a commission under the chairpersonship of Justice G. Rohini, which is looking into the sub-categorisation of OBCs. The committee is yet to submit a final report despite multiple extensions in its tenure.

In response to the grievances of these deprived castes, the dominant castes of the SC and OBC groups usually make three common arguments. First, talking about deprivation within the reserved groups is a divisive move. Second, these castes should make themselves capable to avail reservation facility. Third, reservation is not a programme of poverty alleviation but representation.

All three arguments seem hollow to me. The first and second are derived from the same logic used by the upper castes to reject the concept of reservation, saying that it creates divisions within Hindu society; also, it is often argued that a meritorious person doesn’t need reservation to get what they deserve. The last argument of looking at reservation only through the principle of representation is also weak. Reservation in jobs should be seen less as a means of representation, but more as a tool to bring equality in the society.

Suggested measures for improving reservation

There are four measures that have been suggested to improve the existing reservation system: (1) influential castes should be removed from the reserved list, (2) reserved lists should be restructured, (3) the reserved groups should be divided, and (4) creamy layer principle should be applied.

The analysis of these measures from the broader perspectives of social justice reveals inherent limitations within each. 

The first measure makes the mistake of considering the empowerment of some capable people/families of a caste as the empowerment of the whole caste. However, strong families within any caste have their own network, and weak people/families often remain outside that network. This is true for both reserved and unreserved castes.

The second measure talks about removing some castes from one list and adding them to another list, such as the Yogi Adityanath government’s decision last year to include 17 most backward castes in Uttar Pradesh in the SC list. The state governments also took initiatives in this direction. While this method may solve the problem of the underprivileged castes of one list, it has the possibility of further harming the disadvantaged castes of the other list. For example, if the 17 most backward castes in UP are included in the SC list, then the Mahadalit castes in the SC list may become further disadvantaged.

The division, or sub-categorisation, of caste groups is the third measure. Many states have several categories within OBCs while states such as Bihar and Haryana have categories within SCs as well. But unsatisfactory results from these states shows why this is not a good idea. Seats of reserved categories are determined on the basis of roster, which means the number of seats for reserved categories gets reduced considerably if the reservation list is divided. Due to the roster system, the more the reserved categories are divided, the less seats they will get. In fact, in the government departments or institutions where the number of total seats are already few, there will be no seats for reserved categories if they are divided.

The concept of creamy layer, which originated from the decision of the Supreme Court in the Indira Sawhney case on the Mandal Commission report, is seen as the most effective solution for improving the reservation system. But the growing demand for the division of OBC category by the most/extreme backward castes is enough to show that this concept has failed in its purpose. Apart from this, the creamy layer is not an effective way of improving the reservation system because in determining backwardness, it over emphasises on economic empowerment and ignores structural discrimination based on gender, caste, race, religion, ethnicity etc. in the society.

Deprivation/inequality index: Possible solution 

Given the shortcomings in the proposed measures of improving existing reservation, one task of ours is to find out a better measure. In this direction, philosopher John Rawls’ A Theory of Justice helps us a lot, whose difference principle says that any step taken to uplift a person at the bottom of the society is morally right, even if the step is against the principle of equality of opportunity. John Rawls gave this theory in 1971, long after M.K. Gandhi said it in his ‘Talisman’: “Whenever you are in doubt… apply the following test. Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her].”

Long before that, thinker John Ruskin had written about the upliftment of the last person in the society in his book of essays Unto This Last, which inspired Gandhi’s ‘Sarvodaya through Antyodaya’ (inclusive development) as well as Deendayal Upadhyaya’s ‘Integral Humanism’. B.R. Ambedkar had spoken of backward caste members who benefit from the reservation system ‘paying back to the society’, which also needs to be seen as advocacy for uplifting the weakest.

The words of above thinkers show that there has been an agreement to elevate the weakest in the Indian intellectual tradition, but there is a lack of consensus on the identification of the weakest person.

In order to identify the weakest person in the society, the governments need to move towards introducing a deprivation/inequality index based on the person’s gender, educational/economic status of parents, rural-urban residence, medium of education, etc. While reserving public offices, employments and educational opportunities, the priority needs to be given to the weakest person identified on the basis of these parameters. What’s more, the government would not need to make any fundamental change in the present reservation system to implement such a policy.

Based on such an index, the government would be able to determine the most deprived person within every category — reserved and unreserved.

The author is a PhD Scholar of politics at the Royal Holloway, University of London. Views are personal.

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