India Policy Watch: Mandal Again
Insights on burning policy issues in India
– Pranay Kotasthane
A Constitution Bench of the Supreme Court is set to announce its judgment on the Maratha quota case. Amongst other issues, the court will decide on the question if state governments can breach the 50 per cent reservation ceiling. This 50 per cent limit comes from the Indra Sawhney judgment of 1993, which legally upheld the recommendations of the Mandal Committee Report.
Legal issues aside, today’s political reality makes this judgment even more riveting. Perhaps all political parties appear to be in favour of going beyond this 50 per cent limit, although in different ways. The NDA government has already increased reservations to ~60 per cent in central-government jobs, central-government educational institutions, and private educational institutions through the 103rd constitutional amendment in 2019. The additional 10 per cent seats are now meant to be reserved for economically weaker sections (EWS) of citizens not already benefiting from reservation. In other words, this quota is for persons from non-SC, non-ST, non-OBC classes, as long as their earning is below a defined income threshold. On the other hand, many caste-based and one-caste-dominated political parties are in favour of breaching the 50 per cent ceiling in order to extend or increase quotas for their caste base. The gap between the court-prescribed ceiling and the political reality has become unsustainable. To use a Ravi Shastri phrase, “something’s gotta give”.
Not to forget, that 50 per cent ceiling number itself is quite contrived. Read what the Indra Sawhney case judgment says:
Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%.
Beneath the legalese, observe the narrative power of numbers at play. Any measured phenomenon creates implicit norms of what is “too high” or “too low”. The 50 per cent limit seems intuitively “just right” or “balanced” — half of the seats have quotas while the other half doesn’t. This powerful narrative largely survived for over 25 years but seems to be falling apart now.
And so it appears that reservations have ceased to be a means to correct for inadequate representation of certain disadvantaged sections. Instead, reservations have become springboards for all groups to demand proportional representation. The implicit norm now is that the State needs to enable representation of groups in educational institutions and government jobs according to their proportion in the population; the question of historical disadvantage has been relegated to an incidental criterion. Moreover, the general equilibrium effect of quotas is that group identities have become sharper and more powerful.
Is there another way out?
There is no doubt that a republic founded in a society with a long history of systematic discrimination will inevitably resort to some affirmative action. But is there a way out beyond caste-based reservations?
Nitin Pai and I had proposed one such alternative a couple of years ago in FirstPost:
Consider this thought experiment. There are no predetermined quotas for any posts. Positions are filled only based on a composite score of all applicants. The composite score is a combination of two measures. The first is an inequityscore — calculated to compensate for the relative disadvantage faced by an applicant.
The second measure strictly represents an applicant’s ability to be effective for the position they are applying for. Selection is on the basis of the composite score. No seats are reserved and yet the score allows for addressing multidimensional inequity much better than current methods.
The inequity score can be used to indicate relative disadvantage along several dimensions: individual, social and geographic. Different factors can be assigned different weightages. For instance, given the salience of caste in the Indian social context, the greater the disadvantage a community faces, the higher the weightage.
In addition, we can incorporate other parameters into the inequity score — parents’ level of education, income levels, rural upbringing, or even childhood nutritional deficiencies. Currently, our system of quota-based allocations does not account for non-caste disadvantages that have a disproportionate impact on life outcomes.
A national commission for equity can be formed to propose and review parameters and their weightages within a cooperative federal framework. It doesn’t have to be one-size-fits-all solution. States can assign their own factors and weightages according to the local conditions.
The second measure — an effectiveness score — can then be kept completely independent of equity considerations. It can take the form of a test, an interview or any other indicator to assess candidates’ ability to perform the job they have applied for. Information about the inequity scores can be masked from evaluators of the effectiveness score.
By filling positions based on a sum of the two scores, it becomes possible to be more comprehensive in addressing social inequities while also creating stronger incentives for an individual pursuit of excellence.
Satish Deshpande and Yogendra Yadav had proposed a similar model for higher education way back in 2006:
An evidenced-based model addressing multiple sources of group and individual disadvantages helps to de-essentialise identity markers such as caste or religion; that is, it provides a rational explanation why specific castes or communities are entitled to compensatory discrimination and undermines attitudes that treat such entitlements as a “birth right”.
In essence, this solution tries to solve for both “merit” and “disadvantage”. The opponents of reservation claim that quotas directly undermine efficiency and merit. The proponents of quotas on the other hand find the notion of merit completely odious. They argue on these lines:
Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.
In contrast to quotas, the composite score solution acknowledges that some assessment of “merit” is inescapable, even desirable. But it also doesn’t ignore the problem that disadvantaged individuals face. Hence, we believe it is a better solution than quotas.
In edition#72, we discussed a framework on “nine competing visions of equality” only to reiterate Deborah Stone’s insightful conclusion:
“equality often means inequality, and equal treatment often means unequal treatment. The same distribution may look equal or unequal, depending on where you focus.”
Essentially, any distribution, however equalising it is in one respect, can be charged as being unequal on another parameter. What matters far more is whether a distribution is perceived as being fair or not. As Starmans et al write:
… humans naturally favour fair distributions, not equal ones, and that when fairness and equality clash, people prefer fair inequality over unfair equality
In the Indian context, quotas come with charges of unfairness. It is time to look beyond them.
PS: A commonplace assertion that “the constitution imagined reservations to last only for ten years at the outset” is a myth. This 10-year clause was meant to apply to reservations of seats for SC/ST groups in the Lok Sabha and Legislative Assemblies. There was no such 10-year limit on reservations in jobs and educational institutions under articles 15(4) and 16(4). I too believed in this urban myth having read it being regurgitated in countless opinion pieces. Hat-tip to an alert Puliyabaazi listener for updating my priors.
Read the full edition here.
Disclaimer: Views expressed on Anticipating the Unintended are those of the authors’ and do not represent Takshashila Institution’s recommendations.