affirmative action

US Supreme Court Strikes Down Race-Based Affirmative Action in College Admissions

The court voted 6-3 along partisan lines, ruling that schools cannot use race as a factor in determining who they accept. Proponents claim race consideration promotes opportunity, opponents call it discriminatory.

The US Supreme Court on Thursday overturned years of precedent to rule that universities and colleges can no longer consider race or ethnicity as factors when they select their students.

The court’s six conservative justices – Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – voted to strike down race-based admissions considerations. Liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, voted to uphold them.

The 6-3 conservative majority found the practice of affirmative action discriminatory – not a tool for ensuring diversity and enhancing educational opportunities for Blacks, Hispanics and other minorities.

Ruling against Harvard, the oldest private college in the US; and the University of North Carolina (UNC), the nation’s oldest public university, Chief Justice John Roberts wrote in the majority opinion, “The student must be treated based on his or her experiences as an individual — not on the basis of race.”

Who brought the case before the Supreme Court?

The case was brought by a group calling itself Students for Fair Admissions, which was founded and is run by anti-affirmative action activist Edward Blum. He previously argued that considering race as an admissions factor was unfair and discriminatory toward white and Asian-American students.

Students for Fair Admissions claimed UNC’s practice violated the US Constitution’s 14th Amendment, which guarantees equal protection under the law. The group also argued that Harvard’s practices were in violation of Title VI provisions of the 1964 Civil Rights Act barring discrimination based on race, colour or national origin.

In Thursday’s case, Blum and his group asked the court to overturn Grutter v. Bollinger, a 2003 decision that allowed schools to consider race as an admissions factor so long as it was very narrowly tailored.

Advocates in favour of the practice say diversity at universities where affirmative action has been struck down by state supreme courts has suffered as a result. Proponents also fear what Thursday’s decision could mean for affirmative action when it comes to workplace hiring.

How have US politicians reacted to the decision?

Democratic Senate Majority Leader Chuck Schumer of New York called the decision “misguided,” saying: “The Supreme Court ruling has put a giant roadblock in our country’s march toward racial justice. The consequences of this decision will be felt immediately and across the country, as students of color will face an admission cycle next year with fewer opportunities to attend the same colleges and universities than their parents and older siblings.”

Republican presidential candidate Mike Pence, who served as vice-president under Donald Trump, said: “There is no place for discrimination based on race in the United States, and I am pleased that the Supreme Court has put an end to this egregious violation of civil and constitutional rights in admissions processes, which only served to perpetuate racism.”

Former Presidents Donald Trump and Barack Obama also weighed in on the ruling with both arguing for and against respectively.

Trump, who appointed three of the court’s conservative judges, called the decision “amazing,” saying Thursday was “a great day for America.”

Obama said that although, “affirmative action was never a complete answer in the drive towards a more just society,” it had given those previously excluded, “the chance to show we more than deserved a seat at the table.”

Affirmative action was never a complete answer in the drive towards a more just society. But for generations of students who had been systematically excluded from most of America’s key institutions—it gave us the chance to show we more than deserved a seat at the table.

In the… https://t.co/Kr0ODATEq3

— Barack Obama (@BarackObama) June 29, 2023

What has the White House said?

Within hours of the decision, President Joe Biden spoke at the White House about its ramifications. In short but impassioned remarks, Biden said he strongly disagreed with the majority opinion, instead agreeing with the dissenting opinion’s claim that, “it rolls back decades of precedent.”

Biden, who said colleges and universities had enjoyed the freedom to decide how to diversify their student bodies for 45 years, argued that schools and the nation as a whole are “stronger when they are racially diverse.”

After encouraging institutions of higher learning to consider the adversity that individual students had overcome to qualify for admission – adversity such as low income upbringings in poor neighbourhoods with disadvantaged schools – Biden said, “discrimination still exists in America, today’s decision does not change that.”

He also sought to defuse the argument that race was allowing unqualified students to gain admission to schools before railing against legacy admissions policies that benefit generally wealthy students whose family members had previously attended a school.

Biden said legacy policies, “expand privilege rather than opportunity,” and he bemoaned the fact that, “the odds have been stacked against working people for far too long.”

In closing, he admonished those listening to “remember that diversity is our strength,” noting “we cannot let this decision be the last word.”

This article first appeared on DW.

Brahmins Claim to Be Victims of Affirmative Action. This ‘Untouchable’ Lawyer Begs to Differ.

An author for ‘The Economist’ says affirmative action in India has pushed Brahmins away to countries outside India. But numbers tell us a story very different from this myth.

When I was a child, my father, a devotee of the Hindu god Shiva, would walk to a nearby temple every Monday to worship his favorite god. We lived in a one-room house in a small village in Gujarat. My father was a farm worker, and his visit to the temple on Mondays was one of the few respites in his life.

One day, in 1976, the temple priest – a Brahmin – told my father that he was no longer allowed to enter the temple. My family belongs to the so-called ‘untouchable’ caste. Yes, the same untouchability that was abolished by the Indian constitution in 1950.

But ‘upper’ caste villagers were feeling increasingly uncomfortable sharing the temple with ‘untouchables’ and the Brahmin priest told my father he was no longer welcome at the temple.

I am a corporate lawyer in the United Kingdom. My life today is a world apart from that one-room house in which five of us lived a crowded and precarious existence at the margin of our village. But I was reminded of this incident – and many other similar humiliations – when I read an Economist article, published on the first day of 2022, in which the author wonders ‘Why Brahmins lead Western firms but rarely Indian ones’.

The article offers three reasons:

1. Business in India favours those with established networks and because Brahmins lack these networks, talented Brahmins have tended to emigrate;

2. A tradition of bookishness has made it easier for Brahmins to pass exams and enter the countries with the greatest opportunities; and

3. Affirmative action in India has pushed Brahmins away to countries outside India.

Conspicuously absent amidst this speculation is any data or research that supports any of these three arguments.

In fact, a 2009 Mint article, titled ‘When will the Brahmin-Bania Hegemony End,’ looked at the caste identity of the CEOs of 57 largest and/or prominent companies of India. Of the 57 companies listed in the article, 16 were headed by Brahmins while the remaining 41 companies were headed by another ‘upper’ caste group – Bania.

Even a casual look at such data proves that the Economist was absolutely wrong in suggesting that Brahmins rarely lead Indian companies. From steel to telecommunication to airlines, Brahmins control many of the richest slices of the Indian economy cake.

As someone who belongs to the first generation in his family to benefit from the affirmative action policy of India, I was especially struck by the laughable suggestion that affirmative action has oppressed Brahmins so much that they have been driven out of the country.

Also read: ‘Caste System Snatched Her Away,’ Say Payal Tadvi’s Parents a Year After Her Death

In the absence of any data in support of this, the Economist simply offers Kamala Harris’s mother. “When the mother of Kamala Harris, America’s vice-president, was seeking a college education, quotas for lower castes had made it far harder for Tamil Brahmins to gain admission. So she applied for a scholarship in America, earned a PhD and became a cancer researcher.”

This is blatantly untrue and in fact fails to corroborate the author’s argument. Kamala Harris’ mother Shyamala Gopalan did in fact complete her college education in India at Lady Irwin College in New Delhi in 1958. It was after this that she went to University of California, Berkeley for her master’s in nutrition and endocrinology. She would go on to become part of a wave of highly skilled professional Indian immigrants in the United States, who would lay the foundation for one of the richest and most influential diasporas – a far cry from the hundreds of thousands of refugees who have sought asylum in the United States from the oppression and war in their home countries.

Gopalan is part of a tradition of thousands of Indians from different castes and religions who seek graduate education in the US following a bachelor’s degree in India: not because they were pushed away by affirmative action policies but because a US education provides better livelihood opportunities and an international exposure.

Illustration: Pariplab Chakraborty

It is the same dream of a better education that took me to Columbia Law School, New York for a master’s in law following a bachelor’s degree from India. But my own educational trajectory has been diagonally different from that of Gopalan and other Brahman students who move abroad in search of international education.

I am the product of one of the best Indian law schools – National Law School of India University or NLS, located in Bengaluru. Every year, a rigorous entrance examination selects students for admission into NLS. The exam is open to anyone wishing to do their bachelor’s degree in law and attracts thousands of applicants.

As per the affirmative action policies in place across Indian universities when I applied to NLS, 15% of seats were restricted for Scheduled Castes (SC), and 7.5% for Scheduled Tribes (ST). In other words, about 77.5% admission seats were usually available without “reservations.”

For background, remember that ‘upper’ castes are estimated to comprise only about 25% of India’s population. And within that 25%, Brahmins, who hold the status of the highest among the ‘upper’ castes, are estimated to comprise only 4% of Indian population.

Also read: Why Indian Teachers Must Become Anti-Caste Practitioners First

When I arrived at NLS in 1995, it had a total of 80 seats available for first-year admissions. Looking back, I remember at least 33 of my classmates were Brahmins. In other words, 40% of my class of lawyers came from a community that represents 4% of the total Indian population. This is hardly making the case for Brahmins being side-lined by the affirmative action meant for marginalised castes or tribes.

As for the 12 seats guaranteed for ‘untouchables’ and six seats guaranteed for tribals by affirmative action, only eight ‘untouchable’ students and five tribal students were admitted in my class. The remaining seats were given away to the students from the ‘upper’ castes, mainly Brahmins, I learnt. I was one of the six ‘untouchable’ students.

I came to the top law school in India from a poorly run state school in Gujarat. Unlike many of my ‘upper’ caste classmates who had benefited from private schools, education in English, and houses full of books, I came from a house that did not even have electricity for many years. My father was the first in our family to go to school – he made it as far as high school before he started as a farm worker. My mother and grandparents never had any formal education. For many years, we didn’t have toilets in our one-room house. Without the affirmative action that reserved 12 seats for ‘untouchables’, I would not have been able to study at NLS.

In 1995, at NLS, in addition to 18 seats reserved for marginalised castes and tribes, five seats were reserved for foreign students. Many universities in India have this quota. The benefit of this quota usually goes to ‘upper’ caste Indians who have foreign passports.

Indian diasporas are full of upper-caste Indians who, like Kamala Harris’s mother, had the benefit of the cultural and economic capital required to emigrate. Even more conveniently, unlike Indian passport-holders, they do not have to sit for an entrance examination. All they have to do is apply.

In other words, they are admitted without any evidence of merit. While criticising the presence of ‘untouchables’ and tribals because we have a lower bar to enter premier educational institutions such as NLS, the ‘upper’ caste Indians do not blink an eye at fellow ‘upper’ castes who are admitted without any grounds at all for merit.

Illustration: Pariplab Chakraborty

The Economist mentions the tradition of bookishness that has enabled Brahmins to do well in exams. This is not an accident: it’s a tradition that emerges from thousands of years of sitting comfortably at the top of the caste hierarchy in India, dominating the realms of scholarship and education.

This inevitably means that Brahmins can grab a disproportionately high share of educational (not to mention professional and cultural) opportunities available in India and justify it on the basis of this murky merit. Despite affirmative action policies, this continues to be the case in India – at a high cost to the marginalised castes who have had less than a century of affirmative action to compensate for generations of injustice.

Also read: The Spirit of Merit: Caste in JNU Interviews

I attended Columbia Law School and then went on to work in corporate law in multiple countries. In 2004, I was invited to become one of the founders of Gujarat National Law University, Gandhinagar. We were a team of six who worked on this project – the Solicitor General of India, the law minister of the State of Gujarat, the law secretary of the State of Gujarat, the director of the university, the registrar of the university and I. Except me, all the team members were Brahmins.

I was one of the lucky ones. Study after study after study shows that even with affirmative action, Scheduled Caste and Scheduled Tribe students are not able to access educational opportunities.

In 2019, Mint reported that “across most key fields of study, however, Dalit (SC) enrolment in 2018-19 fell short of the mandated quota of 15%, as did scheduled tribe (ST) enrolment (mandated quota of 7.5%). In many large states, including Uttar Pradesh, Bihar, Tamil Nadu and Kerala, fewer than 20% of students enrolled in higher education in 2018-19 were Scheduled Caste or Scheduled Tribe”.

The activist group Ambedkar Periyar Phule Study Circle (APPSC) filed a petition requesting information from the Indian Institute of Technology, one of India’s premier engineering colleges and found that between 2015 and 2019, out of 26 departments, 11 of them did not admit a single Scheduled Tribe student. These departments include Aerospace Engineering, Mechanical Engineering, Climate Studies, Mathematics, etc. This was reported in the New Indian Express on December 8, 2020, which also noted that “out of the 8,827 SC students who applied, only 216 were admitted in the last five years. Three departments admitted only one SC student and two did not admit any SC students. And out of 1,522 ST students who applied, only 47 were admitted in the last five years.”

A similar story was repeated in the RTI data obtained by Egalitarians for PhD admissions at IIT, Delhi during 2018 to 2021. According to this data, the admissions given to students belonging to SC, ST and OBC categories were much lower than guaranteed to them by the affirmative action policies.

Also read: Kerala Varsity Removes Prof Accused of Casteism From Post, PhD Scholar Calls for Expulsion

Numbers like this tell us a very different story from the myth of Brahmins victimised by affirmative action. This kind of hard data, often obtained through bureaucratically painful requests for information, tell us a frightening story about who gets to study by default and who gets to study only because of affirmative action and who does not get to study, even despite affirmative action.

This is also a story of who gets to build India, who gets to make its laws, who gets to shape policy – as well as who gets to tell their stories in the international arena. In other words, the reason that Brahmins lead many Western firms precisely because of the same reason why they lead many Indian firms. They are better positioned to take advantage of opportunity – whether in India or abroad.

And without the affirmative action that brought me to law school, you would not have read this story.

Rajesh Chavda is a corporate lawyer in the UK. He has studied in Columbia Law School, New York, and the National Law School of India University, Bengaluru.

‘Don’t Have Just One Identity’: Transgender People Urge Govt to Rethink Quota Under OBC Category

By clubbing all transgender persons into one category, the government is neglecting the diversity and challenges that exist within the community, activists feel.

New Delhi: The Trans Rights Now Collective has urged the Union government to institute a mechanism for providing ‘horizontal reservations’ to transgender persons instead of including them in the Other Backward Classes category.

The Economic Times has reported that the Ministry of Social Justice and Empowerment recently sought the National Commission for Backward Classes’s advice on the issue of including transgender people in the OBC list.

The move follows the landmark 2014 judgment by the Supreme Court in NALSA vs Union of India. In the order, the SC had recognised the constitutional rights of equality, liberty, and dignity for transgender persons and had directed the Union and state governments to take steps to treat transgender people “as socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments”.

In December 2014, Rajya Sabha MP from Dravida Munnetra Kazhagam party, Tiruchi Siva, piloted a private member’s bill, which provided for “reservation in employment and education for transgender and intersex persons”. This was passed unanimously by the Rajya Sabha.

The bill proposed a scheme of horizontal reservation for transgender and intersex persons – which meant that they would get benefits as a separate class within already existing reservation slabs, similar to the way reservation exists for women or people with disabilities.

The subsequent Transgender Persons (Protection of Rights) Bill 2016, which did away with many progressive provisions in the private member’s bill did not mention reservation. This was met with wide spread protests from transgender people and activists.

TRNC, an organisation working towards gaining educational and employment rights for transgender people, has argued that including transgender persons within the OBC category will be detrimental to large sections of the community.

“The Union government says that it is doing this because the NALSA judgment said so but the NALSA judgment does not call for including transgender persons in the ‘OBC’ category. It says transgender persons should be considered as socially and educationally backward classes. That’s a recommendation from the court, the government has full freedom to decide how it wants to do that,” says Kanmani R., a transwoman and advocate from Delhi.

Also read: India’s Healthcare Systems Persistently Exclude LGBTQ+ People. This Needs To Change.

By clubbing all transgender persons into one category, the government is neglecting the diversity that exists within the community, activists feel. “We are not all OBC category people. We have different caste backgrounds and many of us are facing caste-based oppression within our own community too,” says Grace Banu, founder and director of the Trans Rights Now Collective.

The present proposal is not cognisant of whether a transgender person is from a Scheduled Caste, Scheduled Tribe, or OBC or from the ‘general’ category, thereby making transgender persons from the first three categories choose between reservations on the basis of their caste status or gender identity, the statement said.

Highlighting the need to recognise the existence of multiple identities, Kanmani says, “It’s not possible for one person to have just one identity”.

If transgender people are included in OBC, they will have to compete with multiple groups already included in the category. “Do you really expect transpersons to compete with everyone and still get through?” the statement asks.

Currently, Karnataka is the only state that provides 1% horizontal reservation for transgender people. The reservation of 1% is available in each category – general, SC, ST, and in each of the categories under ‘OBC’. Rule 9 of the Karnataka Civil Services (General Recruitment) Rules, 1977, has been amended to enable reservation for transgender persons.

The Madras high court has, in several judgments, directed that horizontal reservation be provided for transgender persons. In a 2016 decision, in Swapna vs The Chief Secretary, the high court specifically held that reservations be provided to transgender persons in education and employment on a percentage or post basis where at least one post be made available for transgender persons in the different categories of SC, ST, Most Backward Classes, etc., within a period of six months.

Casteism Is Rampant in Higher Education Institutions, but Is ‘Wilfully Neglected’: Study

The study highlights the different ways in which casteism is practiced and often normalised in such institutions.

New Delhi: A recent study says that casteism is not only prevalent but also institutionalised in the Indian higher educational institutions particularly in the technical fields of medicine and engineering. However, these institutions rarely acknowledge the discrimination and wilfully ignore both subtle and overt forms of casteism.

The study, entitled ‘The Steady Drumbeat of Institutional Casteism’, was conducted by the Forum Against Oppression of Women, Forum for Medical Ethics Society, Medico Friend Circle and the Peoples’ Union of Civil Liberties, Maharasthra.

The study focuses on the various ways in which casteism is practiced and even normalised in the current higher education system of the country. It may exist in the direct form of abusive casteist slurs, gestures, comments and physical exclusion or in its indirect ill-informed opposition to the constitutionally mandated policy of reservation and routine biases inflicting psychological harm upon the victims.

It was conducted in the aftermath of the tragic suicides of Payal Tadvi and Rohit Vemula. The study refers to their suicides as ‘institutional murders’, while highlighting the culture of victim-blaming and apathy towards the victims of such institutional murders for calling them ‘mentally weak’ even after their death. Such an approach is also observed in the cases of sexual harassment of women too.

As per the study, persons who share experiences of caste-based discriminations in higher educational institutions get accused of being ‘obsessed with caste identities’ or being ‘over-sensitive’ or ‘paranoid’ about it. This culture of not recognising and dismissing discrimination without the willingness to appreciate the experiences of persons from their own ‘locations’, contributes to the further marginalisation of such persons and their experiences.

According to the study, the Hindu religion founded on caste hierarchy and Brahminical supremacy has been continuously striving to perpetuate the hierarchical caste divisions to establish hegemonic ideological power over Indian society. The rate of inter-caste marriages, even as recently as 2011, was merely 5.82% and there has been no upward trend over the past four decades.

As per the study, the opposition to reservation is used by the so-called high castes to supposedly ‘save merit’ while discrediting, discriminating and humiliating people from oppressed social backgrounds for exercising their due right. However, this argument to ‘save merit’ is totally absent in the case of management quota or paid seats.

In fact, some students who got admitted through reservation were among the top 10 in various examinations, the study says. However, the caste-based discrimination against them doesn’t stop, even after they have proven their ‘merit’.

Further, the study underscores the failure of the implementation and non-compliance of various UGC regulations, government and court reports on the issue by the Indian higher education institutions leading to a large number of drop-outs and even suicides by those affected.

At the same time, the study deals with the issue of privatisation of higher education in India at the expense of public education which has adversely affected the overall prospects for oppressed social groups to break their vicious cycle of exploitation. The lack of the policy of reservation to ensure social justice and representation of the oppressed combined with exorbitant fees makes such private education institutions inaccessible and exclusive.

Seats in private medical hospitals have risen exponentially since 200. Photo: WES

Within even the public education institutions, the representation of such groups is dismal. According to data by the education ministry, presented in 2019 in Lok Sabha, out of 6,043 faculty members at the 23 IITs, only 149 were SCs and 21 were STs- accounting for less than 3% of the total faculty members.

Similarly, out of the 642 faculty members across 13 Indian Institute of Management (IIM’s), only four belong to SC and one faculty member belongs to ST. The same pattern can be found even in Universities offering liberal arts courses such as the University of Delhi which has failed to implement the reservation policy. Out of the total sanctioned strength of 264 professors, it has only 3 SC professors and none from ST backgrounds.

The report has a dedicated section to illuminate caste-based discrimination in medical institutions. It shows how marginalised students are discriminated against from the beginning of their admission process to assessments to their daily social interactions in hostels and classes. Caste-based discrimination is usually hidden under the garb of ‘ragging’ by the college authorities.

The faculty subjects them to unfair practices while assigning them menial roles during their course of study. They are also often purposefully ignored for academic and employment prospects. An earlier report prepared by a committee of the Union government to investigate allegations of harassment of SC/ST students at the All India Institute of Medical Sciences (AIIMS) in New Delhi found 85% of Adivasi and Dalit students felt that internal examiners had discriminated against them while awarding grades.

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AIIMS, Delhi. Photo: PTI

In conclusion, the study offers solutions in the form of strengthening and expanding reservations for socially disadvantaged communities, implementing the various reports and regulations of the past while infusing the study of humanities into technical courses of medicine and engineering. As per the study, this will sensitive students of different social realities which shall translate the constitutional notions of transformative justice and substantive equality into practice.

It asserts the need for anti-caste-based discrimination legislation to take into account intersectional discrimination which shall provide a direction to address caste-based discrimination both conceptually and operationally, similar to the recent reforms on sexual harassment at workplaces.

Reservation in Faculty Recruitment: A Necessity for Merit, not a ‘Premium for Mediocrity’

Invoking ‘merit’ to deny affirmative action has a long history in India. But it is not supported by any empirical evidence.

It is widely believed that the implementation of affirmative action in faculty hiring within government educational institutions will generate a decline in the quality of teaching and research. One would imagine that a belief so widespread among the ‘intelligentsia’ would have some basis in the empirical realities of life.

But such empirical evidence is nowhere to be found.

In fact, some studies have found that the implementation of affirmative action within government organisations generates a mild increase in productivity. The belief that affirmative action hurts excellence is based on the presumption that, in the absence of affirmative action, hiring and promotion of faculty is based solely on merit. Economic theory suggests that this presumption is false.

Invoking ‘merit’ to deny affirmative action has a long history in India; a history which spans the ideological spectrum of Indian politics. There are two variants of the merit argument: the strong and the weak.

The strong variant says that affirmative action hurts efficiency and therefore ought to be avoided altogether. One of the early advocates of this position was Jawaharlal Nehru’s home minister, Govind B. Pant, who put it bluntly: “If we go in for reservations… we swamp the bright and able people and remain second-rate or third-rate.”

The strong-variant of the merit argument proved particularly potent in stalling affirmative action in faculty recruitment. The reasons for this are succinctly explained by sociologist Arvind Shah in an article published in the Economic & Political Weekly. In the article, Shah says, “…to compromise with merit in appointment of a teacher at any level is to subject his students, including those of backward classes, to mediocrity for the entire length of the teacher’s service”. This was circa 1991.

The weak-variant of the merit argument differs from the strong in that it allows for ‘unmeritorious’ recruitment at the ‘lower levels’. The idea behind this is that the higher-level positions are far too important to be left to factors other than ‘pure merit’.

One proponent of this position was Kakasaheb Kalelkar, chairman of India’s first Backward Classes Commission. Kalelkar accepted reservations in government jobs of grades III and IV but objected to any affirmative action in Grades I and II.

The weak-variant of the merit argument can be found within the judiciary too. In Thomas vs The State of Kerala, for instance, Justice Iyer supported affirmative action among clerks on the grounds that here is a “pen-pushing clerk” not a “space scientist or top administrator… on whose initiative the wheels of a department speed up or slow down”.

The weak-variant of the merit argument has not just survived the times, but appears to have grown stronger with them. In 2020, the Ramgopal Rao Committee recommended that the Indian Institutes of Technology be excluded from affirmative action in faculty hiring so that they can compete at the international stage “in terms of excellence, output, research and teaching”. It is as if the mere spectra of caste-based reservations is enough to erode excellence, for the IITs never did implement reservations in earnest.

Also read: How Meritorious and Inclusive Are Our Institutions of Higher Education?

What studies say

Though there are no empirical studies on the relation between productivity and caste-based affirmative action in faculty hiring within universities in India, there are two studies pertaining to other government institutions. Neither study offers any support to either the weak or the strong variant of the merit argument.

The first of these is a 2014 study by Deshpande and Weisskopf on the Indian Railways published in World Development. They examine the implementation of reservation in Grade A and B level positions for Scheduled Castes (SC) and Scheduled Tribes (ST) from 1980 to 2002.

Grade A and B employees make managerial decisions that can have sizeable effects on the productivity of the organisation. Deshpande and Weisskopf found that the implementation of affirmative action did not decrease the productivity of the Indian Railways; if anything it generated a mild increase in productivity.

The second of the two studies is by Bhavnani and Lee, who analyse the effect of reservations in the Indian Administrative Service. Their study, published in the American Journal of Political Science in 2020, uses a detailed data set on the recruitment, caste and careers of India’s elite bureaucrats to examine the implementation of schemes used to build roads, schools and wells. They find that the bureaucrats recruited through affirmative action perform no differently from everyone else in the delivery of public services. Moreover, the result holds irrespective of whether the public services are targeted at the poor or meant for the larger community as a whole.

Why then is the empirical evidence on affirmative action so much at odds with the conventional belief that affirmative action hurts efficiency? The answer lies in the incentives faced by government bureaucrats in making hiring and promotion decisions.

The conventional belief is based on the notion that, in the absence of affirmative action, government organisations hire solely on the basis of merit. In reality, however, the bureaucrats who run government organisations have little to no incentive to hire or promote workers on the basis of merit.

Government organisations are writ with what economists call ‘incentive-compatibility problems’ and higher educational institutions are no exception. Incentive-compatibility problems arise when the incentives faced by the bureaucrats who run an organisation do not align with the goals of the organisation.

In government organisations, the tenures and salaries of bureaucrats tend to be fixed. Bureaucrats are neither punished nor rewarded for the effects their decisions have on the productivity of the organisation. In fact, it is more sensible to think of bureaucrats as serving superior bureaucrats rather than final consumers, irrespective of whether the final consumer is a traveller on Indian Railways or a student at an IIT. This is because the resources controlled by a bureaucrat depend on the decisions made by his superiors within the bureaucracy. The final consumers’ sole influence is through her attendance at the poll booth once every five years.

This influence is terribly weak for a variety of reasons, not the least of which is that citizens cast their votes considering bundles of goods offered by competing politicians. The behaviour of a particular bureaucrat – or even the functioning of a whole government organisation for that matter – is but a grain of sand within the large and diverse bundles of goods voted upon every five years.

All this means that the final consumer, as a voter, is in no position to align the incentives of a bureaucrat with the goals of the organisation. Bureaucrats, in serving their superiors, can engage in behaviours that, though beneficial to themselves, are detrimental to the organisation.

Also read: When Will India’s Educational Institutes Have Their ‘Dalit Lives Matter’ Moment?

The expression of caste preferences in hiring, promotion and access to resources is one such detrimental behaviour. Such caste-oriented behaviour is most likely to be found in government organisations where the higher-level bureaucrats are predominantly of one caste. The IITs, IIMs, and the Indian Statistical Institutes are all examples of such organisations.

Consider IIT Madras for instance. All but one director of IIT Madras, since its inception in 1959, have been Brahmins. The vast majority of the deans and heads of departments, too, have been Brahmins. In such a setting, there is an incentive for junior bureaucrats to woo higher bureaucrats for promotions by expressing – or at the very least tolerating the expression of – caste preferences in the allocation of resources.

Inside IIT Madras, Chennai. Credit: IIT Madras

Inside IIT Madras, Chennai. Photo: IIT Madras

There is little incentive to make the quality of teaching or research matters of primary importance, particularly if these come in the way of caste sentiments. In such a setting, caste discrimination in the form of differential treatment, exclusion from research centres and even humiliation, are not bugs; they are features of a system in which the incentives faced by the bureaucrats do not align with the goals of the organisation.

Caste not only influences the flow of resources among those within an organisation, but it also poisons the very recruitment process by which individuals become faculty members at national ‘Institutes of Eminence’.

Incentive-compatibility problems intrude into the hiring process in three ways. The first of these is in advertisements for faculty positions. Bureaucrats have an incentive to tailor advertisements to call for specific qualifications, which are met by their kin waiting in the wings. Note that the hiring of faculty members is not based on the demand for courses since government institutes are not funded by students.

The second way in which these intrusions take place is in the shortlisting of candidates for interviews. Faculty applicants come with doctoral degrees from various universities and publication in a variety of journals. Neither universities nor journals can be unequivocally compared across disciplines, or even within the same discipline for that matter. Here again, there is a need for judgement and there is little incentive within the system for the judgement not to be directed by one’s caste sentiments.

The third place in which incentive-compatibility problems intrude into the hiring process is at the interview stage. The composition of the interview panel is as much a determinant of an examination’s outcome as the quality of the interviewee. Bureaucrats, therefore, can influence the outcome of an interview by selecting panels that are likely to favour certain candidates over others. The favoured candidates are more likely than not to belong to the castes of the bureaucrats who commission the selection panel.

Overall, there are numerous avenues in faculty hiring and promotions where caste preferences eclipse merit.

In some senses, India has come a long way since the days when Jyoti Basu told the Mandal Commission that caste is of little relevance in his state and Rajiv Gandhi criticised V.P. Singh for implementing the Mandal recommendations. However, the belief among the ruling elite that affirmative action hampers excellence remains unchanged; a belief most potently expressed by the Organiser, RSS’s mouthpiece magazine, circa 1990.

The magazine called affirmative action “a premium for mediocrity”; economic theory suggests that such belief is mere blind faith. In the absence of affirmative action, there is little incentive within government educational institutions to hire or promote faculty members solely on the basis of merit. Affirmative action, therefore, opens the doors to individuals who may have been rejected because of their caste and despite their merit. Naturally, the recruitment of more meritorious faculty members will increase, not decrease, the quality of research and teaching.

Affirmative action and merit are therefore friends, not foes, at least within reasonable bounds.

Vipin P. Veetil is an assistant professor at IIT Madras.

Caste Among Indian Muslims Is a Real Issue. So Why Deny Them Reservation?

While Hindu Shudras and Dalits enjoy the protection of reservation, a Muslim Ajlaf or Arzal, who experiences the same discrimination – if not worse due to their Muslim identity – is not given similar protection by the law.

Traditionally, it is understood that Abrahamic religions, including Islam, are egalitarian and do not advocate caste or any other form of stratification. Scholars often cite Prophet Muhammad’s farewell khutbah where he had famously said, “There is no superiority of an Arab over a non-Arab, or of a non-Arab over an Arab, and no superiority of a white person over a black person or of a black person over a white person, except on the basis of personal piety and righteousness.”

The story of an Ethiopian slave Bilal, who became the first muezzin of the Islamic world because of his beautiful voice and piety, is also cited to buttress the argument. While it is true that discrimination cannot be traced back to Abrahamic scriptures, as in the case of Hinduism, the existence of caste amongst South Asians (irrespective of their religion) is unfortunately a repugnant truth.

Not a Hindu problem alone

Most Indians understand caste as a Hindu problem, I was no different. Years ago, while reading Twilight in Delhi, a much-celebrated novel by Ahmed Ali on Purani Dilli (Old Delhi), the reality of Brahmanism in Islam (referred to as ‘Syedism’ in the Islamic context) was unloaded on me like a ton of bricks. One of the major characters, Asghar falls in love with Bilqeece, a girl belonging to a lower caste. Asghar’s father Mir Nihal, a self-identified Ashrafi (a higher caste), strictly warns him never to think of marriage with a girl from a lower caste as it is against their social dignity.

Also read: Reservation Is About Adequate Representation, Not Poverty Eradication

What was this caste business being spoken of in a Muslim household? I embarked upon a journey to study vertical casteism in non-Indic religions, which finally culminated in this piece.

A clear stratification

Indian Muslims are stratified into three main castes. At the top of the pyramid are the Ashrafs (literally, the ‘nobles’, who trace their ancestry to inhabitants of the Arab peninsula or Central Asia or are converts from Hindu upper castes), Ajlafs (literally, the ‘commoners’, who are said to be converted from Hindu low castes) and Arzals (literally, the ‘despicable’, who are said to be Dalit converts).

In short, Ashrafs are the Brahmin equivalent, Ajlafs are the Vaisya equivalent and Shudras, and Arzals are the Atishudras or Dalit equivalents of Islam.

Muslims hold pigeons during a march to celebrate India’s Independence Day in Ahmedabad, India, August 15, 2016. Credit: Reuters

Muslims hold pigeons during a march to celebrate India’s Independence Day in Ahmedabad, India, on August 15, 2016. Photo: Reuters

The Hindu Dalits and the Muslim Ajlafs/Arzals are, as they say, united in common grief. Both, the Sachar Committee Report and the Ranganath Mishra Committee Report have brought to light several abuses and discriminations that an average Muslim Ajlaf/Arzal face every day, including social segregation, untouchability, limited or no access to education, and underrepresentation. The old Bahujan movement’s slogan ‘Dalit-pichda eksaman, Hindu ho ya Musalman’ stands vindicated by these reports.

A colonial hangover

It was the Census of India, 1901, for the first time, officially recognised such stratification amongst Muslims, listing 133 social groups wholly or partially Muslims. The 1911 Census listed some 102 caste groups among Muslims in Uttar Pradesh, wherein at least 97 of them came from the non-Ashraf category. The term ‘Scheduled Caste’ was coined by the government of India (Scheduled Caste) Order, 1936 (hereafter 1936 Order) to refer to those groups that were known as “depressed classes” till then.

After throwing off the British yoke, the Indian legislators crystallised the concept of ‘scheduled caste’ by way of Constitution (Scheduled Castes) Order No. 19 of 1950, (hereafter 1950 Order). It is pertinent to note that both the 1936 Order (latently) and 1950 Order (patently) made the assumption that caste was unique to the Hindus.

Also read: Fragmented Identities: (Re)living the ‘Partition’ Today

In fact, the 1950 Order, in its Paragraph 3, expressly sets out, “Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu [the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste.” This essentially means that barring Hindus, Sikhs and Buddhists, no person practising any other religion can claim to be a ‘scheduled caste’ and consequently, the benefits thereof.

Nothing can be farther from the truth. Both Ajlafs and Arzals share the same morose predicament with their Hindu counterparts, the Dalits. As aforementioned, this assertion has also been attested by the Sachar Committee and the Ranganath Mishra Committee, both of which, in fact, recommended that certain caste groups amongst the Muslims be given the status of ‘scheduled castes’.

Though certain Muslim castes are recognised as Other Backward Classes (OBC) under the 27% quota, the disability, however, that they suffer due to the 1950 Order cannot be redeemed by this consolation prize. The ‘Schedule Caste’ status is amenable to a higher degree of affirmative action by the government, because of the constitutional promises of reservations.

While both classes of persons, the OBC and the Scheduled Caste, enjoy reservations in educational institutions, jobs, etc., reservation of electoral constituencies is only available to Scheduled Castes, who get the protection of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, which OBCs do not enjoy.

The net result of this is while the Hindu Shudras and Dalits enjoy the protection of the above, a Muslim Ajlaf or Arzal who goes through the same struggles and faces the same discrimination, or even worse because of the additional incidence of being a Muslim, is not given similar protection.

Of laws and prophets

The records of the Constituent Assembly show that the founding fathers also worked under the assumption that non-Hindus are somehow insulated from caste hierarchies. The raging debate of the time was limited to separate electorates for Muslims and their inclusion in the concept of ‘backward classes’ (which later came to be known as OBCs).

The Supreme Court and various high courts have been relatively more receptive than other constitutional wings on the issue, they have remained non-committal nonetheless. The jurisprudence of the constitutional courts may be divided into two distinct phases.

The first day of the Constituent Assembly of India. Photo: Wikimedia Commons

In the first phase, the constitutional courts held that an individual’s caste would entirely cease to exist upon conversion to a religion like Islam, as non-Indic religions like Christianity and Islam do not recognise the caste system. Consequently, the protection and affirmative actions in relation to Scheduled Castes will not apply to them. This jurisprudence saw a tectonic shift in the 1970s when the Supreme Court in Arumugam v. S Rajgopal adopted a distinct interpretation of vertical caste and ruled that caste does not cease but is “eclipsed” upon conversion. With Arumugam (supra), the test for “retaining” caste after conversion became a question of “fact”.

Also read: ‘Perverting the Constitution’: The Case Against 10% Reservation

However, all of this jurisprudence came from individual claims by people wanting to retain their caste after conversion. No one had challenged the constitutionality of the policy of excluding the non-Hindus itself. The only available pronouncement on the issue of the constitutionality of the 1950 Order was in Soosai v. Union of India in 1985.

In this judgment, the Supreme Court accepted that the caste continued even after conversion. It, however, sought for more material to show that the handicaps of persons of Scheduled Castes had remained the same even after conversion to Christianity. In Soosai (supra), the Court was not satisfied with the material placed before it. Accordingly, the Supreme Court decided in favour of constitutionality.

Bettering the Soosai judgement

In the post-Soosai (supra) era, several petitions have been pending before the Supreme Court, dating as far back as 2004, which have challenged the constitutionality of the 1950 Order. The Chief Justice of India Sharad Arvind Bobde in January 2020 made observations that the social exclusion of Christians and Muslims from the Scheduled Caste requires consideration.

It is to be noted that Soosai (supra) was not a constitutional bench judgement, and the pending petitions present themselves as a marvellous opportunity for the Supreme Court to correct the historical wrong which could prove to be a watershed moment in the rights-based jurisprudence of India.

The Supreme Court of India. Photo: Reuters

The core question before the Supreme Court would be whether the 1950 Order is offensive to the principles of equality under Article 14 of the constitution, failing the test of reasonable classification, as it creates two groups, being Hindu, Sikhs and Buddhists as one integrated group, and others, for the purposes of affirmative action and without having intelligible reasoning for doing so (as even Muslims and Christians also face similar caste-based discrimination). The question of justice for Dalit Muslims is a test case for the Indian constitution’s proclaimed ideals of equality.

Gandhi extolled Dalits with the expression ‘Harijans’ (god’s people). He had clearly missed out on their Muslim counterparts. Jawaharlal Nehru had said, “We are little men serving great causes, but because the cause is great something of that greatness falls upon us also.” Justice Bobde’s court will serve a great cause if they can reverse this injustice. In doing so, it will make better the Constituent Assembly, Soosai and Gandhi great too.

Pratik Patnaik is a lawyer and policy commentator based in New Delhi.

Bihar’s Election Has Shown That When it Comes to Politics, Social Justice Is Here to Stay

Although much work is left to be done, the mahagathbandhan’s campaign which focused on social justice alone, has clearly struck a chord.

The following is an overused date (not data) point but is very effective as a symbol of what was happening in 1990 in north India.

Mandal met Kamandal (thus, caste assertion confronted the Hindutva question) on October 24, 1990, as Bihar’s chief minister Lalu Prasad Yadav stalled Lal Krishna Advani’s temple ride in Samastipur Circuit House.

The BJP president had started a rath yatra in Veraval near the Somnath temple and had hoped to end it in Ayodhya, making a powerful symbolic and political point. The objective was to inject some temple into politics and push religion dressed as history, ‘asmita’ and ‘garv’ into electoral dynamics.

L.K. Advani during his 1990 rath yatra, flanked by Narendra Modi, who was then an RSS pracharak. Photo: Reuters/Files

‘Other Backward Classes’ or OBCs organised around marginalised castes – which were backward socially, economically and educationally – were engaged in a battle for dignity at that time.

This was after Prime Minister V.P. Singh had dusted up the Mandal Report and decided to implement it, reserving 27% of government jobs for OBCs. The chorus was about reserving government jobs, but the background score was distinctly about social status. In the way that ten years prior to this sequence of events, B.P. Mandal’s Commission had drawn up lists including Hindu, Muslim, Christian, Sikh and other OBCs in the net, it had cut into the BJP’s plan to slice India along the vertical line of Hindus versus the rest.

The cry for social status soon became about social justice and politics in north India has never been the same again.

Exactly 30 years on, with a very diminished Nitish Kumar thanking Narendra Modi, Ram Vilas Paswan no more and Lalu Prasad Yadav’s path out of jail appearing uncertain, was this the last Mandal election in Bihar?

First of all, caste as a mobilising unit to secure representation is not about ‘lower’ castes alone.

On the contrary, ‘higher’ caste organisations like the Kayastha Conference of 1887, the Dusadh Mahasabha (1891) and the Bhumihar Brahman Mahasabha (1896) had all sought to protect their own and secure representation. Nor was the Mandal point (1990) the first time that the idea of social justice was overtly inserted into north Indian politics.

The fracture in the Congress hegemony, first clearly visible in the 1967 elections, was about OBCs seeking to exit the party fold and carve out their own space. In the 1970s, the emergence of the socialists too was much about social justice. Rammanohar Lohia’s slogan, ‘Picchde paanve sau mein saath (backward classes must get 60%)’, galvanised a generation. It was about proportionate representation as per their population, though the OBC population was never really measured after the 1931 Census.

Also read: OBCs Haven’t Been Counted Since 1931 Census. In Maharashtra, Demand For Separate Column Grows

Bihar felt the full impact of this movement, with socialist leader Karpoori Thakur in his second stint as chief minister implementing an empowering formula, reserving positions in government service, according social status, making ‘backward’ castes aware of the need to assert their numbers more widely.

Congress and Kisan stalwart Charan Singh spoke up for the middle castes in neighbouring Uttar Pradesh from outside the socialist fold. Across Bihar and Uttar Pradesh – parts of the country that had seen little or nothing by way of social movements for according dignity to those socially discriminated against – politics was and remained the best ‘social movement’ there was to stage these battles and secure wins.

As the storm whipped up by Mandal in north India threw up Lalu Prasad, Mulayam Singh Yadav, Mayawati, Nitish Kumar and gave Ram Vilas Paswan muscle, in a nod to the idea of social justice, the BJP itself was forced to ‘Mandalise’.

Initially stunned by OBC leaders breaking its pipe dream of a vertically integrated scheme under Hindutva, BJP ended up walking the Mandal line by reconfiguring the mosaic in its own way, and giving leaders like Kalyan Singh, Uma Bharti and others pride of place. Though Narendra Modi never invoked his own caste overtly in election campaigns before 2014, his invocation in that election was a nod to the salience of social justice.

Also read: Why It’s Wrong – and Irrelevant – to Question Modi’s Backward Caste Credentials

Tejashwi Yadav was less than one year old when his father, then chief minister, had stopped Advani’s Toyota Rath and got him detained. Tejashwi’s emergence as a 31-year old at the head of the single-largest party in Bihar, where the Congress and Left parties accepted him unquestioningly as the ‘CM-face’ from the very start, spoke of a campaign where all participants knew the dynamics at work.

RJD leader Tejashwi Yadav addresses an election rally ahead of Bihar Assembly elections, at Hilsa in Nalanda District, Friday, October 23, 2020. Photo: PTI

Tejashwi allowed the social justice platform to acquire more heft and breadth by speaking of economic justice to not only throw the net wider, but allow the slogan to evolve into a more durable one. Emboldened by the Left parties under his umbrella, the call was something with a shelf-life beyond the assembly elections, apart from forcing the incumbent BJP and Nitish to scramble and run a me-too campaign.

Across his 247 rallies, and often more than 15 hours a day in the only chopper that the RJD had, Tejashwi never denied his caste or the framing of his politics for what it was.

Needled continuously if he was leading an ‘M-Y combine’, he would patiently invoke the alphabet saying he had the “full A to Z with me”. On the other side of the divide, seeing clearly what social justice means to Bihar, the BJP did not think it wise to give up on Nitish Kumar in the campaign, saying constantly that he was the NDA’s chief minister candidate.

Nitish Kumar, the oldest of the Mandal leaders to hold office, had also deepened his hold by empowering and creating the Mahadalit category or the Extreme Backward Castes, promising them their due, both in terms of representation and empowerment.

Chief minister Nitish Kumar during the last leg of the campaign for the assembly elections, in Araria district, November 4, 2020. Photo: PTI

There is no getting away from ‘social justice’, which has come to stay in Bihar’s politics.

For all the power of the BJP’s campaign, its unprecedented financial resources, the maximum Facebook ad-spend and 72,000 WhatsApp groups later, RJD remains not only the single-largest party but the only force that came within whispering distance of forming the government in Patna.

Also read: Mood in Nitish Kumar’s Stronghold Could Explain His Focus on Lalu Prasad’s Rule

After 15 years of BJP-Nitish dominance and sushasan, the per-capita income is Rs 31,287 annually or one-third the national average, the literacy rate the third-lowest in the country, economic activity the lowest for such a big state, with manufacturing here just 1.3% of the country’s share. And according to the Periodic Labour Force Survey in 2018-19, well before the pandemic, unemployment in Bihar was 10.2%, nearly double that of the national average of 5.6%.

The scale of what needs to be done is evident.

State authorities say 23.6 lakh migrants have returned to 32 districts of Bihar during the pandemic and this has only worsened the situation. If here, despite the din raised by the ruling party to invoke boasts over Ayodhya or Article 370, the slogans raised unequivocally by Tejashwi for “padhaai, kamai, dawai, sichai” (education, earning, medicine and irrigation) can keep snapping at the well-heeled, then at least Social Justice 2.5 may well be around the corner.

Social justice has miles to go to get to Social Justice 3.0 and learn from its advanced southern version, in Tamil Nadu, Karnataka or Kerala, where the push upwards of backward castes, first via social reform movements, led to a demand for more representation and eventually to more direct material benefits for the majority of the population and remarkable human development indices.

The feisty scholar Jeffrey Witsoe’s much discussed book from 2013, Democracy Against Development, has explored the innards of social justice in the state and what the thirst for representation and ‘development’ means, their intersections, accommodations and clashes in Bihar.

It is clear how much of the “silent revolution” is yet to get a voice, and there is much more work to be done.

Seema Chishti is a writer-journalist based in New Delhi.

Why Prashant Bhushan is Wrong to Oppose Reservation in the Higher Judiciary

The argument that it is the quality of the individual that matters, and not the caste, is flawed and myopic. The entire selection process for judges is entrenched in patriarchy and casteism. A collegium filled with upper-caste men will primarily select their own kind.

Prashant Bhushan is a truly remarkable person, someone many of us admire and respect for his sense of justice and dedication towards constitutional rights and democracy at large. Unfortunately, his position on reservation in the higher judiciary is problematic and needs to be addressed. In the midst of his regrettable prosecution for contempt of court, he said in an interview to the National Herald last month, and I quote,

“I’m not particularly in favour of reservations in the higher judiciary. I am certainly of the view all the relevant qualities in a judge need to be considered, including their sensitivity to caste discrimination, sexual discrimination in our society. Even to protect those very people you want to protect by reservation, it’s not necessary to have Dalit judges. If they are deserving, they would come through the normal course too. Higher judiciary is meant to protect the Constitution and rights. Therefore, it’s a place where you need the most appropriate people who can do the job with sensitivity. It’s not necessary that only a Dalit judge will be sensitive to Dalit issues. Justice Krishna Iyer was much more sensitive than Justice K.G. Balakrishnan.”

Even before I go into this debate, it is important that I reflect on my own tentativeness in addressing this issue, though I wanted to do so as soon as I saw the interview. I believe that it was my own caste privilege and a hidden sense of liberal loyalty that stopped me. Is the timing right, I wondered? I explained away my hesitation as respect to the individual and his living legacy. How much of these words are attached to our respective positions in social hierarchy, I do not know, but I am certain that somewhere below lurks the ugly notion of ‘common cause’. When someone like Prashant Bhushan argues against reservation in the higher judiciary, liberals who disagree must stand up. Otherwise there is no difference between the parochial mob and us. I failed.

The gruesome rape and murder of a Dalit woman in Hathras and the inhuman behaviour and connivance of the police and state government in the attempted cover up demonstrates that no institution is devoid of casteism; that casteism is rampant. The violence we witnessed and continue to see is the cumulative of the normalisation of various discriminative practices in every one of these institutions. This is not the first time that we are witness to such barbaric community and institutional behaviour; unfortunately this may not be the last. If anything, it points to a truth: power remaining in the control of just a few groups of people negates or acutely limits the extent of fairness. For anyone to believe that somehow the higher judiciary is above this reality is either naïveté or unrecognised caste-blindness.

Also read: Reservation Is About Adequate Representation, Not Poverty Eradication

The argument that it is the quality of the individual that matters, and not the caste, is flawed and myopic. Will not a woman in the higher judiciary give the bench an important perspective? The most decent man is still not a woman, and hence would have never experienced misogyny and patriarchy. This still does not necessarily mean that the woman will be less patriarchal, but it will certainly enable a conversation that is normally beyond the grasp of a man. A male Supreme Court judge needs to continuously learn about sexuality and gender, and the presence of women and trans people as colleagues will make the institution that gives meaning to the Constitution far more embracing and progressive. When it is truly representative of the people, it allows for the contestation of views. Greater representation leads to a balance in the power of the collective voice, empowering judges from marginalised communities to be more forceful in expressing their opinion.

It disturbs me that many upper-caste liberals who would make the above argument for women do not do so for minorities, Dalits and Adivasis. Let us also not forget that when we have more women on the bench, it allows many more girls to dream of that possibility. If we had many more Supreme Court Judges who are Dalits or Adivasis, the imagination of young people from those communities about what is possible expands. As a society, when we provide an environment that enables the marginalised to dream for the highest offices, equality blossoms.

Also read: When It Comes to Dalit and Tribal Rights, the Judiciary in India Just Does Not Get It

Even a judge with an impeccable record, who believes that he is dispassionate, can see things based only on his life experience. Hence the more socially privileged he is, the more limited his life experience. Therefore it is necessary that, in a democracy, we have people with different life experiences as part of the higher judiciary. The system must structurally compensate for social blinders. In Indian society, the trajectory of an individual is inextricably connected to his or her caste. Hence for Prashant Bhushan to imply that the caste of a judge is irrelevant is erroneous.

Let us also not forget that the entire selection process is entrenched in patriarchy and casteism. A collegium that is filled with upper-caste men will primarily select their own kind. Prashant Bhushan’s argument that the deserving will come through the normal course — that they will find their way to the Supreme Court if they are good enough — is dangerously close to the commonly held upper-caste argument of merit. It is no different from people with caste privilege saying that Dalits who are really talented will make it to the elite colleges; that they need no reservation.

What is this idea of ‘deserving’? Are we to just accept that judges, unlike all other human beings, are bias-less? We have to understand that words like ‘merit’ and ‘deserving’ are smokescreens that enable the powerful to keep control and maintain status quo. Only affirmative action can counter-balance the coloured lenses of our esteemed judges. We cannot make individual choices about when affirmation is less or more important. Such arbitrariness in thought only marks our discriminative nature. There will always be good judges and bad judges but we cannot have judges who are more or less social clones.

Also read: SC/ST Act: A Hostile Environment and an ‘Atrocious’ Interpretation

But, as others have pointed out, at the foundation of this lies the opaque collegium system. It functions under the whims and fancies of a select few, where caste and gender considerations are often arbitrary. Decisions are taken behind closed doors and unlike other state action, is not amenable to the demands of public transparency. Admittedly, affirmative action cannot be implemented under these conditions. Reservation in the higher judiciary will be transformational only if dovetailed with a transparent selection process; otherwise there is every chance that it might only entrench existing barriers.

What was also hurtful in Prashant Bhushan’s answer was his juxtaposition of Justice Krishna Iyer and Justice K.G. Balakrishnan to claim that a Brahmin man can be more sensitive to caste issues than a Dalit man. This is not only inappropriate but also a bad analogy. If we were to look at the track records of all the upper-caste judges and place them in front of Justice Krishna Iyer’s, most will fall far short. So what does this say about other upper-caste judges? We never ask this question, do we? Why are we not shocked that, in the past 70 years, the number of judges from the Dalit community in the Supreme Court is in the low single digits, that there has been none from an adivasi community, and that the number of women is still very low.

None of this will change unless we consider a policy of reservations. If someone argues that our courts have done pretty well, in spite of being dominated by upper caste men, I will argue that we would have done far better if we had had greater diversity in our judiciary. The courts are there not only to protect the marginalised; they are there to expand the contours of our understanding of the constitution. More Dalits, Adivasis, women, and queer judges would result in a cultured court.

We should keep in mind that our precious constitution is what it is because, at the helm of its creation, was a man who knew what it meant to be discriminated against.

T.M. Krishna is a musician, author and activist.

Does ‘Merit’ Have a Caste?

See merit as a ‘neutral’ ideology justifies exclusion and discrimination.

The recent incident of casteist slurs used by a Kolkata-based college student, against one of the key initiators of Dalit feminist discourse in West Bengal Professor Maroona Murmu of Jadavpur University, tells us the endemic nature of caste-based violence in academic institutions in India, and West Bengal is no exception to it. Caste violence has been continuing in West Bengal as a matter of ‘public secrecy’ – by practicing daily caste rituals without explicitly talking about them, unlike many parts of India.

The student attacked Murmu by calling her a ‘meritless’ ‘quota professor’. This episode mirrors casteist stigmatisation in the most nuanced form – whereby the policy of reservation is juxtaposed against the perception on merit.

A few months ago, some IIMs had approached the Union government wanting to be listed as ‘institutions of excellence’ and thereby doing away with the reservation policy. Like the Kolkata-based college student, many students and faculties of India’s elite institutions, which provide ‘first world services at the third world rate’, have often made anti-reservation remarks by calling it the ‘murder of merit’. The anti-reservation ideologues claim that reservation undermines the quality of education in India, and in the name of historical wrong, it causes injustice in the present day.

It is in this context one should raise concern about the two crucial but interlinked issues – one, what is merit and secondly, why reservation?

The word ‘merit’, according to Oxford dictionary means, the ‘quality’ of being good and of deserving praise or reward. At a policy level, this definition is by and large a neutral definition. Once this neutrality is accepted, then one can measure the ‘quality’, and in most cases it is done through examination.

Also read: Jadavpur University Professor Files FIR Against Student for Casteist Slurs

In India, access to higher education isn’t scheduled as a fundamental right and one has to desire to be in higher education. Moreover, the essential and yet normalised feature of higher education is based on a principle of ‘exclusion’ and discrimination, as argued by sociologist Satish Deshpande. Merit as a ‘neutral’ ideology justifies this discrimination which is materially practiced through examination. As Deshpande points out, it is not how ‘well’ but how much ‘better’ one has performed in the examination. Thus, examination or merit necessarily has a relative side as well. This brings me to the second question – why reservation.

Societal structures and their interactions have significant impact on what we are. Even if one asserts that merit is a neutral category, social relations are yet not neutral, rather they are shaped largely by economic and cultural structures. Both these structural inequalities end up creating differences among humans’ capacities and moral stamina.

To get a better rank in an examination (especially in higher education) and thus be identified as meritorious, one needs many types of resources – economic (better primary education and training, freedom from other work) and social and cultural (networks, contacts, esteem, confidence and guidance) – and hard work. All these different resources are a function of social relations, and are interlinked.

Is our society equal in terms of distributing resources, be they economic or cultural? Even after seven decades of independence, many empirical studies suggests that the caste-based graded hierarchy still divides us along the line of occupational and social habitations. Not only does it determine the nature of work one performs, but also the human’s ‘worth’ is termed by caste.

In every sphere, the lower castes seem to be falling short of attaining a life that can be called a life of dignity. Thus, even after reserving seats for lower caste people, we manage to isolate them in schools, in university spaces, in workplaces, in parliament, in markets (one significant aspect of this is reflected when Dalit capitalists formed the Dalit Indian Chamber of Commerce and Industry), or in housing societies. Access to primary and higher education, drop-out ratios, teacher/faculty appointments, research output and the nature of research are all determined by the social reality of caste. Even economic mobility doesn’t let one to forget her caste position in our society.

Given this fractured social reality of Hindu society, how can one cultivate merit? Can merit be developed independently of one’s social reality? Any well-wisher for ‘national unity’ and ‘progress’ can’t argue that merit exists in a vacuum. Rather a meritorious life, i.e. a life possessing the quality to be good, accepts social reality and works towards improving it. Anti-reservation ‘merit’ is a myth and an individual profit-driven project, and does not initiate social ‘progress’. If for the upper castes education is a means to ensure a comfortable life which is individualistic, then positive discrimination for the lower castes is an act of social change. Thus in the Indian context, social justice becomes a meritorious gesture.

Also read: Caste Violence, Hindu Politeness and Rural Peace

Elite academic institutions are no exception to this social reality. The reason for these institutions being so outrightly anti-reservation is because these institutions are largely run by upper castes. For instance, as per data gathered through an RTI in 2018, total sanctioned posts for faculty numbers of 18 IIMs are 784, among which 590 are from the general category, 27 are OBCs, eight are SC and two is ST. There are 157 unfilled posts.

Given this composition of premiere institutions like IIMs, which claim to provide world-class education, it is easy to see why the ‘neutral’ category of merit is used for upper caste domination. Ironically, one can say without giving access to people from marginalised sections, these institutes have reserved posts only for the upper castes by using merit.

There are times when we encounter someone from a downtrodden family (either economically, caste-wise or both) who has been able to enter these institutions or get a good job with or without reservation; these ‘exceptional’ and rare instances are often celebrated and reported by the mainstream media as well. What is interesting to note is that firstly, these exceptional moments create a legitimacy for claiming that merit is neutral and therefore justify upper-caste dominance in these institutions; and secondly, in these instances we ignore the ‘afterlife’ of merit. This means not just doing better in examinations but also continuous performance after that, which is largely ignored.

In this afterlife of merit, new sets of trauma begin – by victimising the lower castes and tribes through differentiated treatment, condemning their existence through casteist slurs, nepotism, humiliating them by not recognising their skills. What happened to Murmu is just the latest addition to this list.

While for upper castes, progress signifies getting a degree or a job, for a lower caste or tribal intellectual, there is a continuous evaluation from society, even if the latter has been actively contributing towards the academic world. This social burden already took the lives of Chuni Kotal, Rohith Vemula, Payal Tadvi, Balmukund Bharti and many others. These individuals became exemplary through their death, which is not an individual death but the death of collective confidence and dignity, in the name of the ‘neutrality’ of merit.

Rajat Roy is Assistant Professor, Department of Political Science, Presidency University, Kolkata.

Essential Reading: Lessons for a Savarna From Ambedkar’s ‘Annihilation of Caste’

The understanding that even today an individual’s worth is ascertained by his caste is what serves as a punch to the gut.

I was first introduced to the Annihilation of Caste (AoC) by a stray remark at Presidency College’s famous quad – a perpetual hotbed of arguments. I was in the second year of undergraduate course and struggling with my own opinions on affirmative action policies.

Coming from what is termed an ‘upper-caste’ progressive household, caste had never really played a role in my life till then. Like so many of my generation, I was aware of its existence but not of its consequences. What I did not realise back then was that this absence of caste itself was a manifestation of my privilege. Discussions with many of my classmates broadened my opinions – but not as much as this one single book would.

Reading the Annihilation of Caste was an acute revelation, and this when I was no longer a complete stranger to the issue. Arundhati Roy, in her introduction to AoC, impeccably summarises what it feels like to read Dr. Ambedkar as a savarna.

“…I felt as though somebody had walked into a dim room and opened the windows. Reading Dr Bhimrao Ramji Ambedkar bridges the gap between what most Indians are schooled to believe in and the reality we experience every day of our lives.”

Dr. Ambedkar delivers powerful arguments in a lucid and scholarly fashion. He deconstructs every facet of the Brahmanical system with such sharp logic and rhetoric that there is no rational counter to his arguments.

Also read: How Events at Presidency From a Decade Ago Have Never Quite Left Me

But at the same time, one can feel his indignation and anger at the years of unwarranted oppression, meted out to millions of people in the name of religion. It forces you to face your own privileges and biases. It is not just the centuries of horrific oppression; rather, it is the understanding that even today an individual’s worth is ascertained by his caste is what serves as a punch to the gut.

To this day, merit is defined by whether you gained admission to an institution through affirmative action or not. Inter-caste marriages are still frowned upon and we hear of countless incidents of oppression. In such times, AoC remains an essential read.

Over the years, I have been repeatedly shocked by young people from affluent, savarna households who confidently claim that caste-based discrimination is hardly present in young, urban India. They deem it as some regressive, rural concept that does not call for affirmative action policies. The irony is that they do this while using hurling casteist slurs so casually in their everyday communications that it makes one’s skin crawl.

However, it would be easy to put the blame on individuals alone. We must also address the fact that along with the society as a whole, our education system, where one could hope to plant the seeds of change, has not only failed to address the caste conflict, it has also perpetuated it steadily.

To deny the existence and manifestations of caste is perhaps the biggest injustice that our education system has done to us. This ignorance is also dangerous: one cannot fight for what one does not know.

Also read: ‘He Made Me Hate Myself’: My Story of Being Bullied By a Casteist Teacher

In classrooms, especially those in private schools, caste conflicts and discrimination is hardly discussed. The textbooks do an unbelievably poor job in this regard – we just learn about the varna system, and some fleeting references which are now to be dropped altogether.

Students are asked to write essays on the evils of several social practices like the dowry system, and are taught about apartheid or the American Civil War – but it is as if caste discrimination never did exist. The situation worsens in most higher education institutions that, despite guidelines and laws, have failed to protect and promote Dalit students.

There is no doubt that our education system needs drastic reform. But given the socio-political scenario, it seems we still have a long road to tread. Till then, it remains our own responsibility to educate ourselves.

What is shocking and sad is that AoC remains relevant even eight decades after its publication. We, the urban, educated and “woke” savarnas support various causes from across the world. It is time we woke up to this spectre that has been haunting our own society for generations. We are quick to quip at every injustice, every wrongdoing, but shy away from something so close to home – perhaps because we keep benefiting from our caste privilege in some way or the other. Even while writing this, news of an assault of a Dalit man for touching an upper caste man’s motorcycle came in. It is time we all read Dr. Ambedkar.

It is time we acknowledge our privileges and wake up in solidarity to all those this system has oppressed for centuries.

Anushka Mitra is pursuing a PhD in Economics at the Department of Economics, University of Texas at Austin. She has previously attended Delhi School of Economics (M.A. Economics, 2014-16) and Presidency University, Kolkata (B.Sc. Economics, 2011-14). The experiences mentioned in this article are from her time at Presidency.

Featured image credit: Annihilation of Caste: The Annotated Critical Edition/Navayana