Lack of education apart, the latest reservation for the 'backward' may, above all, be proof that our legislators continue to struggle with ideological constructs that are both anachronistic and debunked. Allow me to explain.
On January 14, 2019, the Central Government notified the 103rd constitutional amendment which confers States with the power to make "special provision(s) for the advancement of any economically weaker sections of citizens in addition to the existing reservations and subject to a maximum of 10 per cent of the total seats in each category".
These special provisions included reservation in higher education and for appointment in certain categories of jobs. The amendment is premised on Article 46 in the Directive Principles of State Policy which places an obligation on the State to "promote with special care the educational and economic interests of the weaker sections of the people". Since 'reservation' seems to have been on the menu right from independence, is this a case of new wine in old bottles or is it just more of the same old?
To contextualize, the Constitutional Assembly took the view that systematic historical oppression entitled backward castes to be compensated with an advantage that would assist them in rising out of decades of persecution. Economic backwardness in isolation had no place in this discourse. Seventy years later, and after much social churn, the legislature continues to expand the proportion of reservation for various classes of individuals without logical coherence in a classic case of legislative creep. How many more amendments will it take for us to realize that reservation laws are incapable of serving their ostensible purpose?
Since the birth of the Constitution, a series of amendments have expanded the state's discretion to engage in affirmative action. The 93rd Constitutional amendment inserted Article 15(5) which empowered the state to make "special provisions by law for the advancement of socially and educationally backward classes in so far as such special provisions relate to their admission to educational institutions".
The distinction drawn in the 103rd amendment is "economically weaker sections". Is the classification of economically weaker sections radically different from educationally backward classes that merit a new sub-section? Don't 'educationally backward classes' presuppose 'economic weakness'? Or are there 'economically weaker classes' who are not 'educationally backward' that require the benefit of reservation? The legislature has in its customary fashion left these questions unaddressed.
That apart, an examination of the legality of the 103rd constitutional amendment raises serious concerns. The Supreme Court of India [Indra Sawhney v. Union of India, AIR 1993 SC 477], among other things, (a) limited the State's powers of reservation to 50% of the available seats in any given category and (b) held that economic criteria cannot be the sole basis for providing reservations. The Court's reasoned if economic backwardness alone were to be the test, the poor from all casts and communities would compete for the reserved quota undermining its objective. The 103rd amendment has directly violated this principle.
If everyone is oppressed, then nobody is. Besides, reservation is designed to right historical wrongs, not redistribute income from the rich to the poor. From this perspective, what is Reservation for economically backward classes but redistributive taxation on steroids?
Illegalities apart, the ideological underpinnings of the 103rd amendment are deeply flawed. Is inequality inescapably harmful? Modern intellectuals do not offer unqualified support. In 2015, Harry Frankfurt argued that inequality per se is not objectionable; only poverty is. If an individual lives a long and fulfilling life, then whether they drive a car or a bullock cart is morally irrelevant. What is essential is that every individual should have enough.
The concept of reservation is based on the fallacy that wealth and opportunity are a zero-sum game. There is no reason why others must have less for some people to end up with more. For example, since the industrial revolution, wealth has expanded exponentially.
According to the World Bank, global per capita GDP has grown in every year from 1961 to 2015 except 2009. Proponents of inequality such as Thomas Piketty claim that "the poorer half of the population are as poor today as they were in the past, with barely 5 percent of the total wealth in 2010 just as in 1910". What they fail to consider is that the total wealth today is significantly higher than in 1910, and if the poorer half do indeed own the same proportion of wealth, they are still far richer.
There is an inevitable correlation between economic development and inequality. India and Brazil have both experienced robust growth with a widening gulf between the rich and poor. Wealth is frequently a reward for the tangible delivery of extraordinary value to society generally, be it sunflower oil or iPads.
It is thus difficult to adopt the position that the accumulation of wealth and its natural corollary of inequality are iniquitous. Unless demonstrably shown to result in abject poverty and deprivation, there seems little justification for any state to systematically uplift the economically weaker on the mere principle of it.
Perhaps this is why our corporate laws have no difficulty recognising the primacy of private shareholder in driving the creation of private wealth. The corporation's legally defined mandate is to pursue relentlessly its own economic self-interest.
Recognition of the sovereignty of shareholders value is nothing if it is not an endorsement of the inevitability of wealth concentration. Dealing with the consequences is confined to issues that directly conflict with competition and labour laws. In such a legal structure, reservation cannot conceivably be a viable modus operandi for redistribution of income, which is why the Constitution does not allow for it.
Bear in mind also that the ideological construct underlying reservations for economic backwardness fundamentally undermines the public posture of a government that projects itself as an economically growth oriented one. There is a very good reason that AAP's redistributive policies aren't at the forefront of BJP's electoral pitch.
All this said, it remains to be asked if this amendment will have the effect of curbing poverty? In India, the right to education is a fundamental right with primary education for children up to the age of 14 to be provided by the state free of cost. So it's not laws and rights that block the road to progress. This new species of reservation may swap the poorest for the less than poorest but at the end of the day, it seems obvious that hat swapping doesn't enlarge the education cake.
There is the distinction to be made between a 'right to participation' and an 'ability to avail' a benefit. The problem with inculcating students into higher education without gauging their capability is that they are often unable to exploit the opportunities presented to them. Often, students enter universities on "quotas" for the purpose of obtaining degrees in the hopes of landing jobs. Yet, when students do transition into jobs, they are often inexperienced, underdeveloped thinkers and incapable of performing at a high level. Academic underachievement translates directly into an absence of employable skills.
The irony of this constant privileging of "college degrees" is revealed in the fact that some of the most successful people didn't even receive a higher education. Gautam Adani barely finished one year of college before dropping out to enter the world of business. Our very own Prime Minister is a self-proclaimed tea-seller. And how can anyone forget the Sachin Tendulkar's success story? Successful people rarely credit their university education with their ideas. Higher education doubtlessly galvanises innovation and success, but it does not purport to combat poverty.
In conclusion, it is self-evident that the legislative history of reservation pivots not on whether its existence is justified but on who should benefit from it. At some point, lawmakers need to acknowledge the ideological fault-lines and address the burning constitutional question: when and how can we cure the Obsessive Compulsive Reservation Disorder?
The writer is a practicing lawyer and an associate at the Gurgaon based law firm 'NSouth, Advocates'.