The politics of social justice in India took a historic turn with the near-unanimous passage of The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 in both the Lok Sabha and the Rajya Sabha early this year. Though ‘sitaron ke aagey jahan aur bhi hain, abhi ishq ke imtehaan aur bhi hain’ (there are other worlds beyond the stars, there are tests of love left), it is the first step for reservations for economically weaker sections (EWS) in higher educational institutions (HEIs) as well as ‘initial appointment in services under the State’. The Bill does not mention ‘upper castes’, as is widely assumed. Technically speaking, it can be applicable for any EWS citizen – irrespective of caste, religion, etc. The promise of justice in India – according to the preamble of its Constitution – was always ‘social, economic and political’, and ‘equality of status and of opportunity’ for ‘all its citizens’. Article 46, in particular, enjoined that ‘the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them’. In practice, however, India has had one of the longest-standing affirmative action programs in the world, focused on redressal of historical discrimination against SCs and STs. Both the metric of justice and equality as well as its applicability has remained limited. Is this Bill poised to address this historical limitation and deliver the constitutional promise of justice and equality?
From a constitutional perspective, to begin with, there is no effort to fulfil the more fundamental and primary promise of justice and equality for all citizens of India. Redressal of exclusion through reservations is a remedial and secondary measure, which should, ideally, be until such time as the primary promise remains unfulfilled. And since there are no efforts in this direction, the secondary measure has come to be seen as the primary one. How often do we have public debates on justice and equality for all? Article 15, clause (1) of the Constitution enshrines that ‘the State shall not discriminate against any citizen on grounds only of religion…’. We know what has been happening in this regard. According to Article 38, clause (1), ‘the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life’. There is not even any discussion on such a social order, let alone the faintest of desires to have a Bill for ‘securing and protecting’ it. Clause (2) of the same Article states that ‘the State shall, in particular, strive to minimise the inequalities in income …’. The passed Bill has introduced an economic basis for reservations. But, what about inequalities in income that promote ‘financial incapacity to compete with the persons who are economically more privileged’, which the said Bill seeks to address?
The politics of justice may have taken a historic turn – the primary promise of justice, as enshrined in the Constitution, continues to be far from it. From the specific perspective of exclusion from HEIs and public employment, which the Bill seeks to redress through reservation, where is the evidence to support the government’s central argument, that ‘the economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged’? Many EWS citizens do get into HEIs and public employment. There appears to be a disconnect between what the government is seeking to address (financial incapacity) and what it is seeking to redress (exclusion from HEIs and public employment). The two are not always interconnected. We need to look at evidence on who gets into HEIs and public employment and who doesn’t – and why. What about the non-EWS who are not able to get into HEIs and public employment? What about the EWS who are able to get into them, but find it difficult to flourish within them? Exclusion and injustice are not restricted to entry alone.
Given the complex patterns of injustice – which is probably why the preamble of the Constitution talked of ‘JUSTICE, social, economic and political’ – we need to come up with a multidimensional metric or basis of justice whose applicability is not limited by caste / tribe or economic background. It should be able to take into account and address the multidimensional, intergenerational injustices and inequalities that individuals, households and communities cutting across caste, tribe, economic status, religion, region, gender, etc. find themselves trapped in. The term ‘incapacity to compete’ from the passed Bill, without the prefix of ‘financial’, appears to be appealing from this perspective for a highly aspirational, rapidly developing country like India. I have argued in my book, “A shot of justice: Priority-setting for addressing child mortality” (Oxford University Press 2019) – which was incidentally released around the same time as the Bill – that the chosen metric of justice should be sensitive to considerations of equity as well as efficiency. Equity cannot be pursued in the back gear and efficiency in the forward gear. When we do that, you take one step forward and two steps backwards. Justice and equality are often conceived from a ‘distributive’ perspective. I think it is time that we conceptualize them from a ‘contributive’ perspective – i.e. enabling everyone, without any distinction, to contribute to their own prosperity, their households, communities and the nation. The metric of ‘incapacity to compete’ seems to fit the bill from a ‘contributive’ perspective as well as the twin considerations of equity and efficiency in the context of complex patterns of injustice. Any ‘Ayes’? By: Dr Ali Mehdia Senior Fellow at ICRIER, New Delhi.