The book explores the complex history and evolving jurisprudence of affirmative action in India. It delves into the historical context, legal interpretations and contemporary challenges of this policy, making it a valuable introduction to the topic for readers seeking to grasp its multifaceted dimensions.
THE history of affirmative action, more commonly referred to as ‘reservations’ in India, spans several decades and generations in our country.
Even prior to the enactment of the Constitution in 1950, the idea of reservations had emerged in colonial India, with Princely States such as Mysore and Kolhapur, as well as the provincial governments of Madras and Bombay, addressing the question of caste inequality through affirmative action.
The incorporation of reservations in the Constitution underArticle 16 for public employment (which was subsequently extended to education underArticle 15) wasnoted by scholar Marc Galanter to be a “branch of Indian constitutional law that was built from scratch … with little guidance or borrowing from abroad”.
Affirmative action grappled with the reality of a country riddled with inequalities of class and caste, among others, and aimed to provide substantive equality to address the historical injustices and oppression faced by the backward and marginalised sections of our society.
The incorporation of reservations in the Indian Constitution is noted to be a “branch of Indian constitutional law that was built from scratch … with little guidance or borrowing from abroad.”
Post the enactment of the Constitution, the debate on reservations has branched out in many directions.
With the increase in stakeholders, the forms of reservations have diversified, the rules and their formulation have become increasingly complicated and politicised, and their interpretation has turned into a constant site of contest between the legislature and the judiciary.
Lawyer and author Abhinav Chandrachud’s book These Seats are Reserved: Caste, Quotas and the Constitution of India, traces the journey of reservations in India and deals with the numerous questions in the jurisprudence of affirmative action, which is constantly changing and evolving.
Outlining the debate
The book, which is spread over seven chapters, puts a special emphasis on the historical background of reservations in India.
The author unravels this background by focusing on the various sites of contest— the Constituent Assembly debates, the Parliament, the Union and state executives and the judiciary.
In seeking to explain the current predicaments on reservations, the book outlines the contours of the debate historically. It elaborates on the views of leaders such as Jawaharlal Nehru and B.R. Ambedkar from the Constituent Assembly debates who had differing perspectives on reservations and its position within the constitutional framework.
The book explores the shift in the terminology for the beneficiaries of reservations which has evolved from ‘backward’ and ‘depressed’ classes in colonial India to ‘Scheduled Castes (SC) and Tribes (ST)’ and ‘Other Backward Classes (OBCs)’ over time.
The book raises and addresses numerous questions regarding the nature and form of affirmative action.
Why were reservations limited to the public sector and not extended to the private sector initially?
What are the criteria for measuring the ‘backwardness’ of a class of people? When it comes to reservations, should the goal be adequate or proportional representation?
These questions have surfaced repeatedly before courts in India, and the legal position on many of them remains unsettled.
Over time, courts have purposively read the provisions on reservations from the viewpoint of substantive equality over formal equality.
The author addresses other emerging questions on reservations in India – In light of sub-quotas being allowed for the Other Backward Classes , is there a need for sub-classification within the Scheduled Caste and Tribe communities?
The former recognises the historical oppression and injustice faced by the backward classes and accounts for the same through remedial measures such as affirmative action.
While covering the case law on reservations, the author also critiques the findings of important bodies such as the Kaka Kalelkar and Mandal commissions, which were instituted in 1953 and 1979 respectively to provide a framework for identifying ‘socially and educationally backward’ classes.
Reservation is a complex area of policy making and is burdened with technical jargon that captures its various rules and regulations.
‘Roster system’, ‘sunset clause’, ‘creamy layer’ and ‘carry forward rule’ are among the numerous terms which the author simplifies for the reader by explaining their significance and working.
Towards the tail end, the author addresses other emerging questions on reservations in India. In light of sub-quotas being allowed for OBCs, is there a need for sub-classification within the SC and ST communities?
Should horizontal reservations for women also attract ‘creamy layer’ restrictions? Does conversion to other religions restrict members of the SC or ST community from being beneficiaries of caste-based reservations?
Reservations: A contextual analysis
The book serves as a strong primer on the topic of reservations in India, which has developed a dense and complicated jurisprudence filled with questions that have no straightforward answers.
The author makes this jurisprudence accessible to the average reader with a simple and articulate style of narration.
In covering the major cases on reservations, the author attempts to holistically cover all the viewpoints presented before the courts. Ultimately, the book presents a bird’s eye view on how the courts have progressed with reservations over time while also noting down the inconsistencies and irregularities in their interpretation.
The contextual analysis provided in the book engages the reader with the history and politics of reservations. The increasing politicisation of reservations is highlighted, wherein political parties have used it as a means for consolidating vote banks under the garb of promoting equality and addressing historical injustice.
There are uncomfortable questions in the book which probe into the working of reservations and challenge their efficacy in achieving substantive equality for the beneficiaries.
Do the benefits of reservations reach out to every member of the marginalised communities or remain restricted to their ‘creamy layer’? Is there a need to reform inter-state migration rules which end up excluding SC and ST communities that don’t fall under a particular state’s list?
These questions point towards the need for a clear and consistent framework for policy making in reservations. This legislative vacuum leads to cases being filed before the courts which, in turn, leaves crucial matters prone to the incoherence and inconsistency of the court’s interpretation, as pointed out in the book.
The book highlights increasing politicisation of reservations, wherein political parties have used it as a means for consolidating vote banks under the garb of promoting equality and addressing historical injustice.
While flagging these concerns, the author goes a step further to explore possible solutions to these conundrums. There are arguments that encourage sub-quotas within quotas, timely revision of lists and creamy layer restriction to prevent the monopolisation of the benefits of reservations by any particular community of people.
Other arguments highlight the limitations of reservations, which are encumbered by education and employment, impacting only a minority of the population.
It reflects the need for bottom-up measures, such as the strengthening of public schools and welfare schemes covering health, education and sanitation, among many others, which can reach out to a larger base of people belonging to the backward communities.
The book is concise and backed with thorough research, which is reflected in its bibliography. The bibliography serves as a strong reference point for the literature on the various facets of reservations in India.
The book remains an introductory work on reservations but effectively addresses the numerous facets of reservation while also presenting the debate on it from the different ideological viewpoints.
For a detailed study of affirmative action, scholars such asMarc Galanter,Thomas E. Weisskopf andSukhadeo Thorat can be referred to, as they have systematically studied and analysed reservations in India through numerous scholarly articles and books.
Lately, there have been numerous developments in the discourse on reservations around the world.
The book reflects the need for bottom-up measures, such as the strengthening of public schools and welfare schemes covering health, education and sanitation, among many others, which can reach out to a larger base of people belonging to the backward communities.
In India, there have been growing calls for conducting a caste census, which can help in the effective targeting ofquota benefits.
Conversely, the US is facing a setback with its Supreme Courtlimiting affirmative action in higher educational institutions in a landmark judgment involving Harvard and the University of North Carolina.
With so much happening on this front, this book is a fine introduction for anyone who wishes to understand the intricate history and jurisprudence of affirmative action and make sense of its latest developments in India.