by Asang Wankhede
The gradual process of extending reservations in India to dominant groups has not been comprehensively researched . Affirmative Action for Economically Weaker Sections and Upper-Castes in Indian Constitutional Law provides the first systemic analysis of the legislative and judicial discourses on the extension of Indian affirmative action policies of reservations to upper-castes groups and the newly devised Economically Weaker Sections (EWS) category. The book seeks to provide a descriptive, analytical, and critical account of the design, nature, and possible implications of extending reservations to the upper castes and EWS. It documents the proliferation through an analysis of executive, legislative and judicial developments. The monograph asks how these developments can be coherently explained with reference to the legal understanding of reservations by mapping the latter onto discrimination law theory.
The book’s main findings show, first, that there has been a gradual shift in the constitutional policy of reservation to communal quotas. Reservations have now been displaced with communal quotas by modifying the entire basis of reservations from historical discrimination to a caste-based communal representative policy.
Second, EWS reservations lead to norm indeterminacy as these extend affirmative action without a corresponding protected ground of discrimination under art. 15(1) which provides for an exhaustive list of the grounds for discrimination of religion, race, caste, sex, place of birth or any of them. The 2019 constitutional amendment does not revise the list of grounds in the constitution. It fails to include variations of class/economic disadvantage, property ownership, and material backwardness as a ground besides caste, race, religion, sex, etc. EWS appears as a protected group within the general category/unreserved category, defined without a corresponding protected ground and corresponding protected characteristics.
Third, the recent 2019-Amendment does not rely on an intersectional understanding of poverty and instead adopts a discriminatory and narrow conception of economic disadvantage which is defined only using family income limits and property ownership. Such markers are thus upper-caste, gender, income, religion, and property fixated. In the jurisprudence of the Indian Supreme Court, poverty deprivation has been conceived broadly using multidimensional substantive equality theory. (eg State of Maharashtra v Indian Hotel and Restaurants Association (AIR 2013 SC 2582)Society for Un-aided Private Schools of Rajasthan v Union of India (2012) 6 SCC 1 Poverty deprivation in Indian discrimination law is intersectional, as an economic disadvantage is construed along with other status deprivations associated with it and along with its severe presence in status groups.
We can understand this shift and displacement in three phases and two concurrent processes.—
• First, reservations were understood by the Constituent Assembly and the judiciary as the method to overcome historical disadvantages and geographical exclusion which Dalits and Adivasis faced due to untouchability and social exclusion, respectively while still giving prominence to equality of opportunity principle.
• In the Silent Phase (1950s—1990s), there remained an ambiguity on who were ‘backward classes’(BCs) to be identified based on social and educational backwardness. The practice of Indian states practice in designating BCs was often porous to allow dominant groups to be identified as OBCs, for example, in the case of the Lingayat and Vokalliga communities in Karnataka.
• The foundational problem remained that of considering same normative umbrella of group beneficiaries of reservation quotas despite different experiences of discrimination. This silent phase allowed for the continued inclusion of some dominant groups within OBCs The de facto impossibility of excluding dominant groups ensured that the revision to the state lists was mostly in the form of inclusion and not exclusion.
• In the second, invisible phase, (1992-2019) reservations were extended to OBCs through a de facto adaptation of the state list by the central government which ignored the Mandal Commission Report’s multidimensional approach to group identification. It is here that the shift in constitutional policy of recognising middle-castes groups following the logic of ensuring proportionate caste representation in quotas gained momentum. Indra Sawhney judgement rejected this but allowed the presence of dominant upper-castes as part of OBCs. (Office Memorandum No. 36012/31/90-Estt. (SCT) dated September 25, 1991.)
• The third re-invigoration phase (2019-current) led to the enactment of the 103rd Constitutional Amendment, 2019 based on the Sinho Commission Report 2010. It did not answer, while formulating the policy, why economic disadvantages were addressed only within non-reserved groups and not other status groups of SC/STs and OBCs who were excluded from the EWS quota.
• My book shows that such quotas for the Economically Weaker Section (EWS) quotas are de-facto reservations for ‘upper-caste, middle-class Hindu men.’
Two concurrent processes defined this shift in constitutional policy First, the rescinding magnitude of redressing historical discrimination as the central aim of reservations; and second, the counter force of increasing coverage of dominant, upper-caste groups within reservations. The continued state-level interventions to bring dominant upper castes within the ambit of reservations are a major contributor to these concurrent processes, as seen for instance, in the case of Maratha reservations in Maharashtra.
Affirmative Action for Economically Weaker Sections and Upper-Castes in Indian Constitutional Law thus critiques the proliferation of reservations in favour of dominant caste groups. It argues that the expansions to such groups using the logic of socio-educational and socio-economic disadvantage lay a dangerous foundation for doing away with caste-based reservations in favour of Dalits altogether in the future.
Pluralist Agreement and Constitutional Transformation 