Affirmative Action Off The Reservation

A few days ago I wrote (here) that this is what we have to look forward to (or perhaps keep seeing all around us), if racial preferences are not reined in. I was referring to India, where there is no tradition of or legal protection of individual rights that is comparable to ours and where the Supreme Court of India recently provoked a storm of controversy by excluding a narrow slice of that India forthrightly calls “the backward classes” from “reservations,” its equally forthright term for affirmative action (from positions, etc., “reserved” for the backward classes).

Let’s take a closer look at that opinion, since so many of the arguments here against racial preference seem to me to be pointing us down the Indian road.

Here are some excerpts taken from a recent article in The Hindu that reproduces much of the opinion:

“Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the state is obliged to provide a level playing-field to the oppressed classes,” said a five-judge Constitution Bench headed by Chief Justice Y.K. Sabharwal.

Well, that was easy enough to understand, although it begins to get confusing when providing “a level playing” field obviously means treating some players more favorably than others. But now see if you can understand what follows:

“It is the equality in fact which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond the cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.”

Got that? I think what this means is, having too large a quota (“reservation”) results in “reverse discrimination.” How large is too large? Presumably whatever judges see when they look at “ground reality.”

Or maybe not, since there seems to be a magic number:

The Bench said, “Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense, otherwise it will perpetuate casteism in the country.”

Dealing with the extent of reservation, the Bench, quoting the Indra Sawhney judgment (Mandal case), said the 50 per cent rule should be applied, otherwise the open competition channel would get choked for some years and meanwhile general category candidates might become age barred and ineligible.

In other words (I think), a quota of 49% would help India in “transcending caste,” but a quota of 51% would “perpetuate casteism.” This seems totaly arbitrary (not to mention non-sensical), but maybe the Indians are much more mathematically sensitive than we are, perhaps because there are so many more of them.

Now we get to the nub of the matter:

“We reiterate that the ceiling limit of 50 per cent reservation, the concept of creamy layer [see my previous post, linked above] and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity under Article 16 would collapse.”

The judges said: “The equality of opportunity under Article 16 (1) is for each individual citizen, while the special provision under Article 16 (4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other.”

The Bench said: “The state is free to exercise its discretion of providing for reservation subject to limitations, namely, that there must exist compelling reasons of backwardness [and] inadequacy of representation . . . , keeping in mind the overall administrative efficiency….”

It said: “If the extent of reservation is excessive then it makes inroads into the principle of equality under Article 16 (1). Backwardness and inadequacy of representation are compelling reasons for the State governments to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment, such an enactment is liable to be struck down since it would amount to derogation of the constitutional requirements.”

So, quotas are fine so long as the state “identif[ies] and measure[s] backwardness and inadequacy” to be compensated and so long as they’re not excessive. Each “individual citizen” does have the right to “equality of opportunity,” so long as it doesn’t conflict with the need of members of “socially disadvantaged classes” to have positions reserved for them (so long as not more than 50% are reserved).

I began by suggesting that the Indian legal system was far different from ours, but is it? Our Constitution and legislation recognize an individual right to be free from racial discrimination, but our courts have legitimized (after exercising an inscrutable amount of “scrutiny”) official dispensation of rewards and burdens based on race. We don’t allow “quotas,” but we become misty-eyed over allegedly “holistic” evaluations that lead inexorably, year after year, to a “critical mass” of minority acceptances that is indistinguishable from a quota.

Recall that panel of five Indian judges responsible for this decision was headed by Chief Justice Y.K. Sabharwal. I think “Sandra” must be the American equivalent of “Sabharwa.”