The EWS judgment and the shadow of Pandora

In the recent verdict on reservation to Economically Weaker Sections, a Supreme Court judgment of 2015, which was potentially even more far-reaching for India’s democracy, has been ignored entirely in the current debate

The Supreme Court of India’s recent decision, upholding the constitutional validity of the law granting 10% reservation to Economically Weaker Sections (EWS) of the upper castes, has ignited much debate. Some pundits have affirmed the judgment marks the death knell of caste as a factor in reservation, while others argue that it underscores its perpetual relevance. In all the brouhaha, the media and the commentariat have overlooked another Supreme Court judgment just seven years ago which was potentially even more far-reaching for our democracy but which has been ignored entirely in the current debate.

In a 64-page decision in 2015, a bench of Justices Ranjan Gogoi and Rohinton F. Nariman struck down the United Progressive Alliance Government’s 2014 notification including Jats in the Central list of Other Backward Classes (OBCs). Most significant was the rationale the justices provided: they observed that the state should not go by the “perception of the self-proclaimed socially backward class” on whether they deserved to be categorised among the “less fortunates”; new formulae, they averred, must be found to determine backwardness. The issue, the justices concluded, was not whether reservations were a tool to address millennia of caste discrimination or an instrument of affirmative action; the issue was how to determine who deserved consideration for reservation benefits.

Most significantly, the top court held that caste, while acknowledged to be a prominent cause of injustice in the country historically, could not be the sole determinant of backwardness. It argued in its judgment: “Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness.” It ruled that the State should uncover emerging forms of backwardness in an evolving society.

“The gates would be opened only to permit entry of the most distressed. Any other inclusions would be a serious abdication of the constitutional duty of the State,” the Court warned. It observed that “grave and important” decisions in reference to Article 14 and Article 16 of the Constitution must be made on the basis of “contemporaneous inputs”, which were not available. Most striking were the Court’s observations on what constitutes “social backwardness”. It said that neither educational nor economic backwardness, which the Government referred to, were enough, though both may contribute to social backwardness. “But social backwardness,” the Court observed, “is a distinct concept” that emerges from multiple circumstances ranging from the social and cultural, to economic, educational and even political.

The Court conceded that caste may be a prominent factor for ‘easy determination of backwardness’, but its judgment discouraged “the identification of a group as backward solely on the basis of caste” and called for “new practices, methods and yardsticks” to be evolved. It added the observation that class may be a factor too, since a class is “an identifiable section of society”, but again it may not be enough to justify reservation. Citing its own decision to recognise transgenders as a distinct community with justiciable rights, the Court congratulated itself for identifying a form of social backwardness that had nothing to do with caste or class, in determining their eligibility for government benefits.

This was fascinating philosophically, but it opened up a proverbial can of worms for policy-makers. The most contentious element of the Court’s judgment was its proposition that caste, and the need to right historical wrongs, is no longer sufficient grounds for government benefits. Nor is the self-perception of a caste that it is backward; not even the perception by other castes that it is. New methods, the judgment insisted, have to be developed to identify the backwardness of a group of people.

The Court, drawing a somewhat fuzzy line between ‘past’ and ‘emerging’ forms of backwardness, advanced the presumption of the “progressive advancement of all citizens on all fronts, i.e., social, economic and educational” making history an insufficient guide. You cannot keep citing historical wrongs and propose reservations as a solution to redressing them, the Court decided. This set off a conceptual bomb under the complacent edifice of the reservation system.