Perpetuation of inequality

BRP Bhaskar
Gulf Today

An attempt to amend the Constitution to ensure fair representation for Dalits and Adivasis in the higher echelons of government service failed last week, revealing once again the hurdles in the path towards an equitable society.

The United Progressive Alliance government, which does not command the two-thirds majority needed for passage of a constitutional amendment, introduced the bill in the Rajya Sabha without mobilising the requisite support. The opposition National Democratic Alliance, led by the Bharatiya Janata Party, took no firm stand on the measure, confident that the government cannot go forward in the absence of a consensus.

A confrontation on the floor of the house between members of the Bahujan Samaj Party and the Samajwadi Party, both of whom support the UPA from outside, prevented discussion and adoption of the measure. Ironically, both the parties are champions of socially disadvantaged sections. The BSP, a Dalit party, wanted the bill to be passed but the SP, which draws support mainly from the other backward classes (OBCs) and Muslims, blocked it as these sections have been kept out of its purview.

Dalits and Adivasis, officially classified as the Scheduled Castes and the Scheduled Tribes respectively, comprise communities which were victims of the inhuman practice of “untouchability” for centuries. They have had the benefit of reservation in government service from 1950 when the Constitution came into force. The OBCs, too, have reservation but that came about under different circumstances and the system operates differently in their case.

To begin with, SC and ST reservation was limited to the entry stage. In 1955, the government provided for reservation in promotions, too, realising that these communities are not getting adequate representation at higher levels in the service. Thirty-seven years later, the Supreme Court ruled that reservation cannot be extended to cover promotions.

The government nullified the judgement through a constitutional amendment. After a couple of skirmishes over the provision, last April the Supreme Court struck it down saying the government must first demonstrate that the groups concerned remain backward and do not have adequate representation in the service and that provision of reservation will not result in loss of efficiency.

Reservation for members of the backward sections in government service and in school and college admissions was in force in some princely states like Kolhapur, Mysore and Travancore and the British-ruled Madras province before Independence. When the Constitution came into force, the judiciary held that such reservation offended its equality provisions. At the government’s instance parliament amended the Constitution to assert the state’s power to make special provisions for the socially and educationally backward sections.

For years this provision was used only for the limited purpose of protecting pre-Independence reservations. In 1989, VP Singh’s government, invoking it, extended reservation in government service to OBCs all over the country. While upholding the provision, the judiciary has circumscribed its application by ruling that the “creamy layer” of these communities is not eligible for reservation.

The central government has identified some sections of Muslims as backward, making them eligible for reservation. While the judiciary has accepted caste as a factor that can be taken into account while identifying socially and educationally backward sections, the relevance of religion in the process is still to be decided finally. The Andhra Pradesh high court recently struck down the state government’s decision to provide four per cent reservation for Muslims within the OBC quota on the ground that the sub-quota was fixed on religious lines and had no other intelligible basis.

There is difference in the approaches of the Executive and the Judiciary to the reservation issue. The former, under elected representatives, takes note of popular sentiments, and is therefore susceptible to charges of appeasing vote banks. The latter, dominated by beneficiaries of the old order, is susceptible to charges of not being sufficiently sensitive to the issue of social iniquity.

The suggestion that there is no evidence of inadequacy of SC and ST representation is ill-founded. Figures given to Parliament recently show that they are grossly under-represented in the higher echelons. What’s more, 25,037 posts meant for SCs and 28,173 meant for STs are lying vacant. These include both direct recruitment and promotion posts.

There is a strong anti-reservation lobby in the country consisting of people who benefited from the old order and want to retain the advantage it confers on them. They have used the merit argument to conceal the inequality of opportunity they are seeking to perpetuate. The Supreme Court has routinely endorsed this argument even though it is not substantiated by any empirical study. -- Gulf Today, September 11, 2012.

Revisiting the women’s reservation debate

KAVITA KRISHNAN
Countercurrents.org

Once again, the debate over Women’s Reservation Bill has resurfaced, in the wake of the President’s speech promising to enact 33% quota for women in assemblies and parliament as well as 50% quota in panchayats. After 13 years of delays and vacillations, the women’s movement and progressive forces are naturally demanding that the Government and main ruling parties, who no longer have any excuse not to enact the Bill, walk their talk this time without any further delay.

The cacophony of misogynistic rhetoric voiced against the Bill since 1996, and revived this time around, has rightly invited outrage. However, let us set aside the anti-women baggage for a while, and re-examine the main case against the Bill, as articulated mainly by parties and leaders claiming to represent the dalits and OBCs. The crux of the debate is: will the Women’s Bill in its present form militate against OBC representation in parliament and benefit only elite, privileged women, and must it therefore include a quota within quota for OBC women, as a precondition for passing the Bill?

Does the women’s quota indeed represent a threat to political representation of oppressed and backward castes?

In the first place, we must note that provision has already been made, in the Bill, for 33% quota for women within the existing 22% SC/ST quota. So Mulayam Singh’s warning to the (dalit woman) Speaker in his parliamentary diatribe against the Bill, that the Bill, if enacted, would prevent her own entry into Parliament, is obviously baseless.
The question of quota within quota for OBC women is more complicated – mainly because of the fact that there is no existing OBC quota at any level in representative institutions. The question of OBC quota in assemblies and parliament is being brought up only in response to the Women’s Bill. Even in Bihar, where the state government headed by the JD(U) (the party of Sharad Yadav, the most vocal opponent of the Women’s Bill) has instituted 50% quota for women in panchayats, there is a quota within quota for women from SC/ST and Most Backward Castes (MBCs), not for OBCs as such.

OBC representation in assemblies and parliament has, by all accounts, increased significantly since the 1980s. If 33% seats are reserved for women, will it result in a decline in OBC representation? Won’t OBC women win seats which OBC men have been winning? No, say the opponents of the Bill – arguing that elite, educated, privileged, usually upper caste women will steal a march over OBC women. The lion’s share of the benefits of women’s quota, they say, will accrue to the more privileged upper caste women.

This argument seems to be founded on a fallacy about the nature of electoral and political mechanisms. In reservation in general, it is true, where it is individuals who compete for limited seats – in jobs or education – it is the more privileged who are likely to corner the lion’s share of quotas. For instance, in the case of OBC quota, intended to correct the underrepresentation of OBCs in jobs and higher education, working class poor and women from these castes are less likely to avail benefits as compared to those from the same castes who are relatively more privileged educationally and economically. But the question arises: while OBCs continue to be underrepresented in jobs and higher education, necessitating the OBC quota, how come they are fairly well represented in parliament and many assemblies? Why has the upper caste domination in Indian politics been decisively broken, without any quota? The reason is that OBC political forces have ridden a wave of popular social mobilization that has asserted itself since the 1980s. Politics – including electoral politics – is all about contending social mobilizations, where the caliber and privileges of individual candidates is relatively secondary. This is the reason why a Phoolan Devi (the former bandit) won electoral battles even without any OBC quota. It is one matter that parties have been reluctant to field such women candidates, thus necessitating a women’s quota, but the example of Phoolan Devi suggests that when given a chance, OBC women have not fared worse than their male counterparts in electoral battles. The same social forces which benefited male OBC leaders has played in their favour too, and their lack of educational privilege has not come in the way of electoral success. The point is that politics is not a personality contest, and there is simply no reason why OBC women should fare badly in comparison with upper caste women once the Women’s Bill is brought into effect. Even the apprehension that OBC women might be denied tickets because they would be seen as less ‘winnable’ than more privileged women, doesn’t hold water. Winnability, in our electoral process, is decided less by individual privilege alone – and more by the position of candidate and party in the social balance of forces. It is this which is the biggest factor in parties’ decisions to field candidates. There is no reason why a party, in a constituency where their position in the social balance would favour an OBC candidate, would choose a non-OBC candidate in case the seat is reserved for women. Reservation for women would not alter the social balance of forces – it would only eliminate the aspect of gender discrimination from the social equation in that particular election.

Why is OBC quota proposed only in response to the Women’s Bill, while it is not seen as necessary in general? Opponents of the Bill retort that it is precisely to counter the threat of growing OBC assertion in politics that the upper caste dominated parties have embraced the Women’s Bill. Again, such an argument is based on a fallacious and superficial understanding of the basis of the increased OBC representation in politics. OBC political assertion reflects the growing assertion of an emergent kulak class in agrarian India. To reduce it to the assertion of the marginalised ‘backward castes’ alone would be to ignore that it also reflects the assertion of a powerful emergent landed class, which represents a more privileged layer within the backward castes, while, however, positioning itself as the voice of the genuine social aspirations of the backward castes as a whole. The ruling class including the dominant national ruling parties have, to a large extent, accommodated this kulak class and its political representatives, which have not proved in any way a hurdle to the economic and social policy thrust of other ruling class parties. The initial expectations from some quarters, that these parties would prove a hurdle to communal politics or to neoliberal economic policy have been badly belied. Tensions might remain between powerful ‘regional’ players and national formations, but the latter, while they might seek to replace the regional outfits, will do so by accommodating the OBC-kulak forces rather than by jettisoning them. Moreover, the Women’s Bill is highly unlikely to overturn the power of the agrarian kulak class in the balance of social forces. Rather, the same political logic and process that has benefited OBC male leaders is likely to benefit OBC women as well.

Sharad Yadav, in a recent interview in Tehelka, rephrased his ‘parkati’ brand of argument against educated, urbanised women leaders, in more palatable and even words. He said Sita-Savitri were usually seen as representative of Indian women, and he instead wanted the Draupadis – women who dared to fight Mahabharatas for justice – to find political representation. “If the weaker sections of the society are not included, only people like Sushma Swaraj and Brinda Karat will be seen in the Lok Sabha, not the true Draupadis who represent the real India,” he said. Brave words. But there is a problem: Brinda Karat, a prominent leader of the left-led women’s movement, cannot be called an advocate of ‘Sati-Savitri’ even by her worst detractors. In contrast to the considerable efforts of the women’s movement and the Left-led women’s groups, what has Sharad Yadav or his party ever done to mobilize the Draupadis against patriarchies? The accusation of being ‘elite’ and cut off from Indian culture and social reality is a favourite one to level against women’s movement activists – and Sushma Swaraj would happily join Sharad Yadav in thus branding the women’s movement as un-Indian! Such accusations ignore the fact that if women’s movement leaders from middle class, educated backgrounds represent one kind of relative privilege in respect to their working class sisters, politicians of ruling class parties – including OBC leaders from kulak backgrounds, also represent considerable class (and gender) privilege, and are not unmediated ‘natural’ representatives of ‘deprivation’. The idea that educated middle class women – as leaders of the women’s movement or as representatives in political are somehow less authentic and less representative of the ‘real Indian women’ needs to be challenged very strongly, because such arguments are inevitably deployed to legitimize patriarchies in the name of ‘Indian culture,’ falsely suggesting that ‘authentic’ Indian women are those who accept and embrace such patriarchies.

It is not our case that ‘OBC parties’ and leaders like Sharad Yadav or Mulayam are more anti-women than those from the Congress or BJP. Rather, they are pitting the OBC agenda against women, not simply because they are anti-women or even because they feel more threat from the Women’s Bill, but because they perceive a political benefit in flaunting purported concern for OBCs. Sharad Yadav, for instance, is clearly seeking to use the Women’s Bill issue as a timely tool in his bid to pose as OBC messiah and step into the shoes left vacant by the decline of Laloo Yadav. Today, in any case, there is no unity even in the camp of OBC leaders and parties, on the ‘quota within quota’ position. Nitish Kumar of the JD(U) has strategically chosen not to endorse his party colleague Sharad Yadav’s stand on the Women’s Bill. In Parliament, Mulayam Singh too said not a word about ‘quota within quota’ for OBC women, choosing instead to suggest the even weaker mechanism of a party-wise quota of 20% tickets to women candidates.
In his speech in Parliament, Mulayam Singh said that with 22% reserved for SC/STs, and 33% for women, there would be no space left for upper castes and backward castes. He said that leaders like Advani, Joshi, and others had reached the Lok Sabha through hard struggles, and the Women’s Bill would ‘destroy this leadership.’ He also employed the usual misogynistic spectre of women in parliament relegating men to domestic work, saying “those thumping tables today will tomorrow be left thumping mattresses at home,” and lamented the ‘state of affairs’ where women like Sonia, Mamata, Jayalalitha and Mayawati were calling the shots everywhere. Interestingly, these arguments were clearly targeted not just at OBCs but specifically at upper caste leaders (even naming them), and even more interestingly, his implication that women elected through quotas would not be the product of ‘hard struggles’ and would destroy able leadership, actually echoes the meritocratic arguments posed by protestors against OBC quotas. Clearly, be it Sharad Yadav or Mulayam, the arguments against the Bill are not just emanating from ‘concern for OBC representation’, but rather these leaders have complex and distinct motivations that have necessitated different articulations and emphases at different political junctures.

We do not oppose a ‘quota within quota’ on principle, nor do we reject it on the spurious argument that ‘women’ are an undifferentiated category uninflected by caste and class. In fact, it would be our greatest concern that women from oppressed castes and classes get their share of representation. What are objectionable are the attempts to use the OBC issue as a smokescreen to stall the Women’s Bill. To employ an analogy: would it not have been highly objectionable if the implementation of Mandal recommendations on OBC quotas in jobs and education had been stalled for years on the pretext that a quota within quota for OBC women, or for that matter economically deprived OBC students and youth, was a precondition, to accommodate the apprehension that these sections might be less able to benefit?

The need of the hour now is to pass the Women’s Bill in its present form without a moment’s further delay. If indeed experience reveals that women’s reservation is resulting in any appreciable decline in OBC representation, OBC quota in assemblies and parliament, in general as well as within the women’s quota, can be accommodated through amendment.

Kavita Krishnan can be reached at kavitakrish73@gmail.com. The above article is based on the editorial of the weekly news magazine of the CPI(ML) (Liberation), the ML Update, Vol 12, No. 24, 16-22 June 2009.

Significance of SC verdict on reservation in institutions of higher learning

by Indira Jaising

The judgment of the Supreme Court upholding the Constitutional validity of the Central Educational Institutions (Reservations in Admissions) Act 2006, was delivered today by a bench of five judges, unanimously upholding the validity of the Act.

This means that the government will now be able to reserve 27 per cent of seats for candidates from 'Other Backward Classes' in IITs and IIMs (and other central educational institutions).

The judgment is a resounding vindication of our Constitutional values and is rooted in the history of the struggle for Independence and the major concern of our Constitution for the abolition of discrimination based on caste, which characterised our society.

What was at stake was future directions in a country beset with caste prejudice and social stratification. The judgment gives a clear signal that the future lies in inclusive growth, inclusion of SC/ST and backward classes in the halls of higher learning.

What is more important, it rejects a facile notion of 'equality' as requiring equal treatment of those unequally situated. Rather, it is based on a notion of equality that recognises the vast inequality that exists in Indian society, an equality of status and opportunity in all fields of life.

This interpretation of 'equality' holds great potential for social change in the matter of distribution of national resources, based on need and historical disadvantages, rather than on market forces. It also has important implications for women who have been demanding reservations in Parliament, in state legislatures and will put to rest any argument that any such reservations will result in inequality of
results.

Considering the law was unique, in that it actually increases capacity in these institutions, by increasing the number of seats, one wonders, what was behind the objection to the law. The forward classes stood to lose no seats, something that is commonly objected to.

This was a law that created an additional 27 per cent seats to be filled in by the backward classes. It actually proposed the building of a new capacity in the institutions to be made available to OBC candidates. Clearly therefore, the petitioners were demanding that this newly built capacity should also go to the open general capacity.

Though dressed in Constitutional rhetoric and political cynicism, the bottom line was a fight over national resources and how they should be distributed. It was a battle to defend class and privilege closing the doors to those other excluded, to enter the realm of higher education.

Those who opposed the law argued that what was important was basic and primary education and not higher education! What after all, is basic education meant for, if not to enable a person to aspire to the highest attainable standard of education, employment and enterprise? Or were they perhaps suggesting that education for them must be confined to A B C -- enough to enable a SC/ST and OBC candidate to be a peon in a government office, or a clerk, or worse a domestic?

Crocodile tears were shed in court for children on the streets and on child labour, suggesting basic education as the solution to the problem. The other major argument was that to take caste into consideration as a factor to determine social backwardness was unconstitutional, since the mandate of the Constitution was to abolish caste.

The argument was convenient to say the least and legally inaccurate. What the Constitution attempts to abolish is the discrimination and disadvantage attached to caste, not caste. Caste cannot be abolished with a magic wand or with a Constitutional mantra. What it need is strategies to benefit excluded cases including the provision of higher education.

The combined effect of these arguments was to project their petitioners as progressive people, who believe in the need for primarily education for all and in the abolition of caste.

Fortunately, the court was able to see through the smoke screen, and a smokescreen there clearly was. All the time, one got the impression that the real contesting parties were not present before the court. Perhaps one got a clue from the fact that the 93rd Amendment to the Constitution which enabled this law, also enables the making of reservations in the private sector.

And judging from the arguments that were addressed, I got the impression that a surrogate battle was being fought by foreign universities and private educational institutions, all of whom are entering in to the field of education in India in a big way. Perhaps they were the real objectors to the law, though absent from the court.

The Supreme Court wisely avoided answering the question whether reservations can be made in private institutions, stating that the question will be decided only as and when a law is made making reservations in private institutions. This means, the issue is left open for an appropriate day.

In this stunning decision of the Supreme Court of India, one recognises the power of a Constitutional Court. The judgment is a vision statement, a road map for development, a road map for inclusive growth. It is time for us to acknowledge frankly that the so- called benefits of globalization and privatization have not reached the lower levels of society, but remained in the privileged hands of a few, for whom the world begins and ends with fashion, Bollywood and cricket.

At a time when prestigious foreign universities are looking to set up shop in India, it is only natural that they need to know where they stand on the reservation issue as it will impact deeply on their finances. Education will become more out of reach than it is already for the backward classes. The Supreme Court judgment corrects an existing imbalance in this regard.

What requires special mention is arguments advanced by the team working for the government. Solicitor General Ghulam Vahanvati argued that we need to acknowledge that equality in the Article is not about treating likes alike, but about compensating the backward to ensure equitable distribution of scarce resources.

Gopal Subramanium placed the debate in historical context and pointed out that American judgments freely thrown about in court by the petitioners, could not be relied upon. The Indian Constitution was based on an understanding of the direction of social change desired by the Constitution makers.

K. Parasaran, former attorney general for the Union of India, returned the Preamble to its rightful place, emphasising the Constitutional goal of equality of social status.

Appearing for one of the States, Andhra Pradesh, I pointed out that under the federal structure that the States have identified backward classes and taken special measures for their advancement for more than a century.

In support of the Constitutional challenge, all that was argued is that the law was a measure in 'vote back' politics. This is cynicism carried to its extreme. It is unfortunate that we have reached a stage in political debate which is bipartisan and cynical. This time, all political parties had supported the passage of the law in Parliament.

The cynicism came from the counsel in court, mouthing what one would expect to hear from politicians. Very few political parities had the courage of their conviction to defend the law in court, one of them being the Rashtriya Janata Dal through Ram Jethmalani.

The petitions, however, invited the court to hold that the law was a measure of 'vote catching' and the unanimity over its passing was sought to be projected as an exercise in self interest rather than in the interest of the OBC. It is to invite court to decide on prejudice, not on Constitutional vision. Fortunately that view did not prevail.

It is true that the judgment calls upon the government to exclude the 'creamy layer.' This seems to be in line with the Mandal judgment, which also mandated the exclusion of the creamy layer in employment. It was argued for the Union of India, that in order to avail of the benefits of higher education, one needs to be in a stable economic position to arrive at the level or competing for those exams. To exclude them would be to deny the class as a whole, the benefit of those who could become leaders and peer group motivators.

However, that was not to be. Given the exclusion, there is a case for upward revision of the income limit for deciding backwardness, given the passage of time and inflation. The exclusion of children of former and sitting MPs and MLAs seems to be motivated by the assumption that they are already at a high level of achievement. While this may be true of those who inherit their MP status from parents, it is not necessarily true of others.

I recently represented Haribhau Radhord, MP, the only member Parliament from the Nomadic and Denotified tribes, who has been fighting a lonely battle for including these categories for reservations in employment.

It is too much to expect that the privileged will give up their fight so easily, but what the judgment does is give legitimacy to the struggle for justice of the OBC, a legitimacy which was denied to them in the smoke screen of 'vote bank politics' and political bargaining between the leaders of these communities.

Many a battle between the Health Minister and the Director of All India Institute of Medical Sciences has its origins in the known opposition of students and faculty of AIIMS to reservations. Who can forget those images of striking doctors supporting the director and opposing reservations?

During the arguments, I was being told, "Do you know, so and so is the head of medicine in the hospital? He is SC. No one goes to him." The suggestion was that the SC doctors are not good at their work. For me, it was evidence of the deep-rooted caste bias against the best and most qualified of the SC and ST.

We need to celebrate that fact that Indian society is on the march in the direction of social change and upward mobility for the dispossessed, despite the well funded, well disguised and well argued case of the forward class doctors of AIIMS.

The court has been able to separate the grain from the chaff and look at the reality of the situation. The judgment will change the lives of many formally excluded sections from the halls of higher learning and
privilege.

Advisedly, the court did not go into the question whether reservations can be mandated in private colleges. However, it is an idea whose time has arrived, a law waiting to be passed, a constitutional challenge waiting to happen. I would like to be there then to defend the law, as I was this time round.

Indira Jaising is a well-known Supreme Court lawyer. This article by her has been distributed by the Rights Support Movement