Wednesday, September 12, 2012

Equality of Opportunity or Equality of Outcome?

Madhav in his response in The Hindu says -- "Most seriously, though, Surendranath’s analysis ignores the crucial constitutional principle at stake here: equality of opportunity. Reservations seek to remedy unequal starting positions, but once introduced in promotions they do the inverse: they treat equals unequally."

Part of my reply is aimed precisely at that claim. Madhav's premise is that equals are being treated unequally by providing reservations in promotion. Empirical evidence does not back Madhav's claim and his response to the empirical evidence is rather circular. He first argued that quotas in promotions were problematic because it would mean treating equals unequally and when faced with evidence that we are not talking of equals, Madhav's response is that reservations are not a legitimate tool to equalise opportunities beyond initial appointments. I don't think he can have it both ways. He must either argue that reservations is not a legitimate method to remedy lack of equality of opportunity or establish that reservations are not needed in this case because equality of opportunity already exists due to reservations in initial appointments. He does neither.

Madhav has certainly not claimed equivalence between SC/STs and OBCs. But the test he has suggested borrows heavily from the test used to determine the creamy layer within OBCs. He seems to believe that we can apply largely similar tests to both groups when determining members who should not receive the benefits of reservation. The consideration of recognition harms must be particularly intense for SC/STs and I believe that in terms of those harms, the problem of creamy layer within the SC/STs is more imagined than real. That is not to say that the demands for internal quotas within SCs in AP, Karnataka, Punjab etc are not valid. Even there, the basis of those demands is not that certain groups amongst the SCs are no longer backward but that the interests of the "more" backward amongst them needs special protection.

This has been fun and challenging but there is certainly a greater sense of freedom on the blog -- one can, in the very least, use first names!


3 comments:

Dilip Rao said...

Like Madhav said, this surely looks like interest group capture. DoPT numbers on p. 38 of their annual report show low representation in groups A & to some extent B, adequate for C and D (perhaps marginally lower for STs). How come no one is willing to talk about reducing if not abolishing quotas for groups C & D now that adequate representation has been achieved? As for groups A & B, where is this evidence you refer to that shows lower numbers are due to not lower recruitment but disproportionately slower promotions owing to discrimination?

The idea of reservations, as I understand, was that empowerment of a few from the community would reduce discrimination against it as a whole. The idea of promotion quotas is what? That higher empowerment of those already in power will somehow reduce discrimination against the rest even more? Of course, it is all perfectly just (and a brilliant way to raise morale of the hardworking and the meritorious) when some end up going far up the ladder (thanks to consequential seniority) while others continue to be stuck at the bottom for no other reason but an accident of birth. Nor is the justification for non-application of creamy layer among SC/STs any more persuasive. Many of the younger generation are children of government servants who grow up in a comfortable environment with the luxuries that middle class life typically affords - far from any setting of poverty & untouchability. Their numbers may be lower than OBCs but nevertheless real and so far as rationale is concerned, as a matter of principle, is beside the point. Tell me again why they should be getting quotas? The concept is aimed at progressively enlarging the numbers of better off within backward classes by excluding those who managed to cross the threshold earlier. How exactly does allowing them to capture the pool promote the acclaimed objective of class equality? The fact that they suffered untouchability whereas OBCs did not is irrelevant because it is not the origin of the problem that matters here but the justification for its solution which happens to be identical in both cases, namely, quotas.

Indra Sawhney & AK Thakur both dealt with only OBC, not SC/ST quotas & had no occasion to rule on the latter. KGB's view of creamy layer was a wrong inference from past precedent; even so, it was merely a dictum. Besides it carried only 2/5 votes & did not become binding law.

Rohit said...

Anup,

Isn't equality of opportunity the equality of outcome that was desired when reservations were first accepted as a tool of affirmative action?

Jaydev Goswami said...

As far as I am concerned, the Indian Constitution ought to stand invalid or suspended.

The powers of Article 13(1) and Article 13(2) and those of Article 368(1), Article 368(3) and Article 13(4) are Contradictory in nature and thus cannot exist in harmony. Therefore two fundamental questions arise:-
i) Whether Article 13(1) and Article 13(2) Overpowers Article 368(1), Article 368(3) and Article 13(4);
ii) Whether Article 368(1), Article 368(3) and Article 13(4) Overpowers Article 13(1) and Article 13(2).

Consequences:-
i) If Article 13(1) and Article 13(2) Overpowers Article 368(1), Article 368(3) and Article 13(4); Consequences that automatically follow are:-
a) All laws inserted under the Constitution of India including amendments to the Constitution of which are in violation of Part III of the Constitution of India shall be repealed.


b) Prominent laws and amendments that could be repealed automatically includes:-
1) Insertion of Article 31B through the First Amendment Act, 1951. 224 laws are invalid under article 31B as per the Supreme Court Verdict in 2007.
2) Amendment of Article 334 every ten years since 1959.
3) Implementation of Mandal Commission Report.
4) Implementation of Verappa Moily Report resulting in the 93rd Amendment Act , 2006.

ii) If Article 368(1), Article 368(3) and Article 13(4) Overpowers Article 13(1) and Article 13(2); Consequences that automatically follow are:-

a) The Constitution of India ought to have been suspended automatically after the 24th Amendment Act, 1971 as it gives ‘Absolute and Uncontrolled Power’ to the Executive and the Legislature relating to amendment of Constitution of India.
b) India ought to have lost status as a ‘Democratic Republic’ after the 24th Amendment Act, 1971 as Article 368(1), Article 368(3) and Article 13(4) gives ‘Absolute and Uncontrolled Power’ to the Executive and the Legislature relating to amendment of Constitution of India which is against the Principles of Democracy as No single body can have ‘Absolute and Uncontrolled Power’ in a democracy.