Affirmative Action and Issues Flashcards
Affirmative Action?
It’s a set of anti discriminatory measures intended to provide access to preferred positions in society to members of groups who would otherwise be excluded or may be under represented. The idea is to change the social composition of elite positions.
-> Shahu-IV Maharaja of Kolhapur was the 1st to provide reservations back in 1902.
-> 1st Comprehensive caste census was held in 1931 under Commissioner J H Hutton. We are using this data till date. SC/ST data is collected during every census but not of OBC. It was done for the 1st time in 2011 but the data hasn’t been made public yet.
-> Criteria considered during the census in 1931:
1. Temple entry restriction
2. Pollution by touch or proximity
1st list of SC was produced in 1936. Presented SC status is recognised in 3 religions (Hinduism, Buddhism, Sikhism)
-> SC recognition is Indic religion biased however ST/OBC recognition is religion neutral.
Justice Ranganath Mishra (2007) Commission report had recommended SC status for dalits in all religions.
-> KP Manu Judgement (2015) : SC status can be conferred if you reconvert and are accepted back by your community.
KP Manu Judgement
Identification of ST
Lokur Committee (1965):
1. Geographical Isolation
2. Shyness from contact.
3. Backwardness (Social, Economic, Educational)
4. Distinct Culture
5. Primitive traits
But most tribes deserving of ST status today are ineligible as per this criteria so, ideally the criteria should be revised as follows:
- Common community name for group identity
- Distinct language or dialect
- Presence of a core culture pertaining to life cycle, death etc.
- Endogamy
- Low levels of techno-economy
- Backwardness
- Autonomous religious beliefs. (However practice of Hindu faith shouldn’t be a thorn)
- Traditional institutions of social control still exist.
Identification of Backward Classes (SC/ST/OBCs)
SC: A-341 Constitution SC order
ST: A-342 Constitution ST order
OBC: A-342A Constitution OBC order ( Added through 102nd CAA 2018, when NCBC was given a constitutional status )
-> OBCs can be identified by both the centre and the states but SC, ST only at the central level though the list may be state wise.
Body for OBCs, SC/ST
NCBC was established through the NCBC Act 1993.
Composition:
1. Chairperson - Is/Has been a sitting SC/HC judge
2. Social scientist
3. 2 persons with special knowledge of matters relating to OBCs
4. A member secretary
Functions of NCBC:
1. Examine requests by groups for inclusion in the OBC list
2. The government may at any time and shall at the expiration of 10 years carry out a revision of lists and while doing so would consult the commission whose opinion shall ordinarily be binding.
-> NCBC has been elevated to constitutional status through the 102nd CAA 2018 and A-338B and A-342A have been added for the purpose
In the Org Constitution there was a special officer for SC/ST under A-338.
Through the 65th CAA 1990 the special officer was converted into a National commission for SC/ST
Through the 89th CAA 2003 the two commissions were bifurcated: A-338(SC), A338A(ST)
** Through the 105th CAA A-342A was changed and central list was added.
Quota (+/-/Way forward)
+:
1. To correct historic injustice
2. It’s not merely a division of labour but a division of labourers ( Caste class occupation today is considerably broken but it’s mostly for the upper classes not for dalits. 90% of manual scavengers are still dalits, most of the polluting jobs are still performed by dalits)
3. The normal process of development does not automatically bridge the gap between the marginalized and dominant caste groups
4. Caste and class distinctions coincide in India. (Social Isolation and poverty make for a deadly combination)
5. Labour market dualism
6. Untouchability is still prevalent but has assumed different forms. (Honour killings for pratiloma marriages, Separate utensils, Ban on entry into kitchens, No houses on rent)
7. Quotas should not be seen as benefitting one individual or community but as benefitting the whole society by promoting the interests of it’s weakest.
-:
1. Replaces one form of discrimination without another. ( At max it’s compensatory discrimination )
2. Perpetuates caste discrimination and generates hostility. ( Specious argument)
3. Compromises merit. ( Merit is not often inherent but built up. Difference of a few marks doesn’t indicate gaps in talent. Merit is not a neutral characteristic/trait.
4. It benefits the creamy layer. (Argument for better targeting not abolition of quota)
5. Mismatch hypothesis. ( Quotas place backward class students in situations where they can’t cope leading to high dropout rates)
6. It compromises productivity. ( Study by Deshpande and Weiss Kopf )
7. Quotas should not be based on primitive notions like caste but should be class based.
( 1. Quota provisions are mainly to address vertical discrimination and not horizontal, 2. This idea is based on the misplaced assumption that a poor brahmin in a village and a poor dalit in a village face the same kind of circumstances and are equally deprived, 3. Abuse of the EWS criteria indicates the inadequacies in implementing class based quotas.
-> But we now need to move beyond quotas towards a Quota+ policy as they are about to reach their limits:
1. These have primarily benefitted the urban backward but now the focus has to shift to rural India with a fresh round of land reforms.
2. Involve the private sector through tools like diversity index.
3. Supporting the backward class students throughout their academic years.
4. Steps should be taken towards building social consciousness as to what has happened in the past and should be avoided. ( Mandatory teaching of critical caste theory )
Q) Perhaps the quota policy has been successful in uplifting communities economically but less socially?
Indira Sawhney (1992)
Set down guidelines wrt to quota policy and eligibility:
- To avail quota benefits, the group has to be both BACKWARD & INADEQUATELY REPRESENTED
- 50% cap shouldn’t be crossed unless there are exceptional circumstances. ( The court has used the norm-exception framework to justify the cap as opposed to the norm-clarification framework envisaged in the constitution ).
- Identification of backward classes is subject to judicial review
- A-16(4) must always be read with A-335
- Identify and exclude creamy layer from quota benefits.
- No quota in promotion ( A-16(4A) was added by the 77th CAA to get around the court’s judgement )
- Reserved vacancies can be carried forward for a maximum of 3 years after which they shall lapse back into the general quota. And also the 50% cap rule will apply on the aggregate number of seats including the ones being carried forward. ( A-16(4B) was added by the 81st CAA to get around this judgement of the court)
5: The GOI appointed the Ram Nandan Committee (1993) to identify creamy layer amongst OBCs.
-> For government employees: Either of the parents on a constitutional post, Either is a group A direct recruit, Both in group B, Either of tthe two is colonel or equivalent in other services.
-> For Private: Rs 8lac/annum ( Excluding farming, salary, agricultural land ), Demand to raise it to 12lac/annum but this would defeat the purpose of creamy layer as this would cover 90% of the households. Less than 2% households in India have income over 12lac/annum.
** In 2019 the BP Sharma Committee held that the income limit can be enhanced subject to salary income also being included.
> Even the SC has held that creamy layer shouldn’t be based only on income criteria. There’s a fresh suggestion for availing benefits in educational institutions the creamy layer should be fixed as both parents being graduates.
For government jobs it should be 1 person/household.
Targeting of benefits:
1. Periodic revision of lists ( Hardly done. It’s only a one way street )
2. Identify the creamy layer and exclude them from quota benefits
3. Sub-classification
> In 2017 the GOI appointed the justice Rohini Commission under A-340 to sub-classify the 2600+ caste groups in the OBC list.
Presently 50% of the OBCs in the central list have availed <3% of the quota benefits. 37% have not availed any benefits at all. Just 10 communities have taken up 25% of the reserved central government jobs.
Q) Does quota in promotions defeat the idea of equality of opportunity and advocate for equality of outcomes? (A-16(4A) was added )
> A-16(4A) was challenged in the Nagraj Case (2006):
->Upheld 16(4A) but laid down the following norms:
1. Backwardness has to be demonstrated again with quantifiable data. ( The court added a creamy layer filter for SC/ST quota in promotion )
2. A-16(4A) should also be read with A-335
3. The community should not be adequately represented in upper levels.
> Jarnail Singh Case (2018):
-> The court upheld the creamy layer filter but modified the Nagraj judgement to the extent that the government need not show quantifiable data to prove backwardness
> Jarnail Singh 2 (2022):
-> No yardstick can be laid down by the SC for determining adequacy of representation of SC/ST in promotional posts, the government should decide
-> Periodic review of the data on inadequacy of representation. The period should be reasonable and the same has to be decided by the government.
-> No retrospective implementation of the Nagraj judgement.
Issues with OBC quota
Ram Singh Case (2015):
> The apex court struck down inclusion of jaats in the central list of OBCs.
1. Historic injustice cannot be the only ground for claiming quota benefits. (But it’s the only basis on which SC/ST get quota)
2. Social groups deserving quotas must be a matter of continuous evolution just as the court identified transgenders as backward class in 2014 ( The court here is confusing between constitutional framework for horizontal discrimination it. 15(1) & 16(1) with that for vertical discrimination which are 15(4) & 16(4) )
3. Self perception can’t be a permissible criteria for deciding backwardness
4. Affirmative action should be based on contemporary quantifiable data.
Maratha quota:
> 16% quota not in OBC but separate was announced in 2014 in both government jobs and educational institutions.
> The Bombay HC upheld the SEBC Act(2018) but reduced quota to 13% in government jobs and 12% in educational institutions
> Jaishree Laxmanrao patil case (2021):
1. The SC struck down the SEBC Act stating that quota went beyond 50% without any exceptional circumstances.
2. With the introduction of A-342(A), the state governments have lost the authority to identify OBCs.
Ram Singh Case (2015)
> The apex court struck down inclusion of jaats in the central list of OBCs.
1. Historic injustice cannot be the only ground for claiming quota benefits. (But it’s the only basis on which SC/ST get quota)
2. Social groups deserving quotas must be a matter of continuous evolution just as the court identified transgenders as backward class in 2014 ( The court here is confusing between constitutional framework for horizontal discrimination it. 15(1) & 16(1) with that for vertical discrimination which are 15(4) & 16(4) )
3. Self perception can’t be a permissible criteria for deciding backwardness
4. Affirmative action should be based on contemporary quantifiable data.
Jaishree Laxmanrao Patil Case (2021)
Maratha quota:
> 16% quota not in OBC but separate was announced in 2014 in both government jobs and educational institutions.
> The Bombay HC upheld the SEBC Act(2018) but reduced quota to 13% in government jobs and 12% in educational institutions
> Jaishree Laxmanrao patil case (2021):
1. The SC struck down the SEBC Act stating that quota went beyond 50% without any exceptional circumstances.
2. With the introduction of A-342(A), the state governments have lost the authority to identify OBCs.
General Quota
Provided by 103rd CAA (2019):
> A-15(6) and A-16(6) were added.
Issues:
1. Quota goes beyond 50%.
2. For quota you need to satisfy two conditions as per the Indira Sawhney Judgement. You should be inadequately represented and you need to be backward but the general quota is overrepresented.
3. Quota framework is fundamentally meant for vertical discrimination and not horizontal. The SC has also held on several occasions that economic criteria can’t be the sole basis for deciding backwardness.
> Janhit Abhyaan vs Union Of India:
The SC upheld the quota for EWS stating quota beyond 50% is not a violation of BSD (3:2)
Janhit Abhyaan vs Union Of India
> The SC upheld the quota for EWS stating quota beyond 50% is not a violation of BSD (3:2)
Is Reservation a FR?
Mukesh Kumar Case (2020):
> The court held that the provisions that mention affirmative action ie. A-15(4, 5, 6) and A-16(4,4A,6) are all in the nature of enabling provisions and doesn’t compel the state. The state is so desires can eliminate reservations all together.
> > But If A-14 (Equal protection of laws) is read along with A-46, then a FR to reservation can be distilled.
Mukesh Kumar Case (2020)
> The court held that the provisions that mention affirmative action ie. A-15(4, 5, 6) and A-16(4,4A,6) are all in the nature of enabling provisions and doesn’t compel the state. The state is so desires can eliminate reservations all together.
Caste Census
> Every caste census from 1951 to 2011 published data on SC/ST but not on other castes. Today we have only the 1931 census to rely on for data on different castes. Thus to fill this data gap a socio-economic caste census was carried out along with regular census in 2011. The findings of the same have not been made public.
+:
1. Not knowing the numbers of various OBC communities prevents the creation of targeted interventions for their welfare.
2. A-340 also requires that such data be collected
3. Helps in proper revision of lists.
4. Apex court has always insisted that affirmative action should be based on contemporary data.
5. Exercises like Justice Rohini Commission are difficult to go through with without adequate information.
-:
1. Will promote casteism
2. It would sharpen caste divides and implications for national unity. (Racial data however is collected in the US)
3. Census as a subject is in the union list (Entry 69)
4. Census act (1948) does not provide for caste census. ( But it doesn’t prohibit it as well )
5. It amounts to invasion of privacy. ( However it was the govt which opposed including privacy as a FR )
