Bengaluru: The Supreme Court on November 7, 2022 upheld the validity of reservation in public employment and education for Economically Weaker Sections (EWS), specified as persons not already covered under the existing 49.5% reservations for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC), and whose family's gross annual income is below Rs 800,000 and eligibility based on property ownership. The 103rd Constitutional Amendment bringing about the EWS reservation had been passed by Parliament in January 2019, and was subsequently challenged in court by multiple petitioners. The apex court's judgement clarified that SCs, STs and OBCS were excluded from EWS reservation, lest they receive "extra or excessive advantage".

What are the implications of the verdict for India's reservation policy, until now a caste-based system which provided entitlements and benefits for economically and socially marginalised groups historically discriminated against on the basis of their caste? We asked Ashwini Deshpande, professor of Economics, and founding director, Centre for Economic Data and Analysis (CEDA) at Ashoka University in the National Capital Region. Deshpande said the Supreme Court's verdict poses challenges for tackling poverty and economic inequality for India's most vulnerable communities.

Edited excerpts:

The Supreme Court has upheld the validity of EWS reservation, or the '10% quota', through a 3:2 verdict, altering India's caste-based reservation policy. What are some of the major implications of the verdict?

By stipulating a quota for non-SC-ST-OBC families earning Rs 8,00,000 (Rs 8 lakh; nearly $9,800) per annum or less, the government is effectively creating a quota exclusively for upper castes who are not in the top 1% of the income distribution. This means that, despite this quota being presented as being based on economic criteria and not caste, the reality is that this is very much a caste-based quota, targeted towards castes that do not suffer any social discrimination. On the contrary, these castes rank the highest on the social scale of ritual purity.

It is an extraordinary travesty – for the first time in India – that the groups that are disproportionately poor (i.e. have the highest proportion of below poverty line (BPL) individuals) are excluded from a quota that is, in principle, meant to target economic deprivation regardless of caste.

Given the lack of recent data on household income, does the verdict really help the poorest who fall under the EWS criteria? How many households would qualify to be eligible under the present terms?

The EWS cut-off is such that it captures many more than just BPL families. The term 'EWS' is a complete misnomer that takes attention away from the fact that this does not actually target genuine economic deprivation.

First of all, we need to recognise the so-called 'EWS quota' for what it actually is. The income limit of Rs 800,000 per annum does not target "economically weaker sections". India does not have reliable income data. Along with Jitendra Singh [a researcher], I have been using Centre for Monitoring Indian Economy's Consumer Pyramids Household Survey data. We found that only 2.3% of households had total household income greater than Rs 800,000 in 2019. This is very similar to another estimate which indicates that in 2015, 98% of all households earned an annual income of Rs 600,000 or less.

We should be clear that poverty or economic deprivation is an acute disability and must be remedied. The question is: are reservations in state-run institutions of higher education and public sector jobs the right instrument to remedy poverty? No. Poverty is an economic feature which can and has been solved through economic measures. For starters, higher economic growth since 1991 has lifted a very large number of people out of poverty. There are welfare measures like the Mahatma Gandhi National Rural Employment Guarantee Scheme or the Public Distribution System that provide succour to BPL individuals. Are these measures enough? Does India need a more targeted attack on poverty? Yes, of course! Also, we need to identify factors that push people into poverty. Political scientist Anirudh Krishna has argued that Indians are "one illness away" from being pushed below the poverty line.

The importance of ensuring adequate food, clothing, shelter, access to healthcare, education, sanitation and most of all, decent livelihood options and the right to a life of dignity cannot be overemphasised. The question is: does the 10% quota take us closer to these goals? The answer is no.

In addition to the EWS income criteria of Rs 800,000 those families who own more than 5 acres of agriculture land, a residential flat of 1,000 sq ft and above, residential plot of 100 sq yards of municipal area and 200 sq yards and above in notified municipalities and other municipalities respectively are excluded from the EWS reservation. Does it help target the EWS reservation better to the poorest people?

Ans: Not really. If you see the details of the eligibility/exemption criteria in the FAQ document, you will notice that a) the cut-offs are very high [86% of agricultural operational land holdings are small and marginal i.e. less than 5 acres] , and b) the requirements to produce documentation are very onerous. There would be errors of exclusion of genuinely EWS persons, as well as errors of inclusion. Let me explain.

Errors of exclusion: Think of someone genuinely poor, having to struggle with all this paperwork. Income certificate, assets certificate, which have to collate all the assets owned by those defined as "family". The requirement to prove that one is "EWS" according to multiple criteria suffers from a problem that is common to several other contexts in India. Proving that one does not have X or Y asset is more difficult than proving one has that asset. (On a personal note, when my father passed away, my brother and I gave affidavits to the bank to certify that we were his legal heirs. The bank asked us to prove that there wasn't another sibling who could claim to be a legal heir. It was a nightmare to prove the non-existence of another sibling!)

Errors of inclusion: There are also numerous loopholes and ambiguities that could lead to the inclusion of individuals who don't qualify under the current set of criteria. For instance, the answer to Q. 4 in the FAQ document says that if a grandparent is the owner of a property that has not been distributed among the parents of the applicant, that property cannot be counted as "family" property. Think of a college applicant whose grandparents are alive, have not legally distributed them to their children (parents of the applicant), and have assets that would normally disqualify the applicant. Such an applicant would be counted as EWS! Also, what happens if the parents are legally separated or divorced? The applicant could be the ultimate heir of both parents' assets (and thus not be EWS, but if only one parent's assets are counted (in case of single parents), that would put that person into the EWS category.

Thus, the multiple eligibility criteria would make targeting more difficult, with the possibility of errors on multiple counts.

The intent of reservation, when it was introduced in 1950, was social justice for the oppressed and marginalised communities, and was based on the idea of compensatory discrimination. Does the EWS reservation also subscribe to these ideas?

I am going to call it the 10% quota, because for reasons I explained earlier, it is incorrect to call it the EWS quota. This measure is of historic significance not because it advances the original raison d'être underlying quotas for marginalised and stigmatised groups, but because it completely overturns the original logic of reservations. In 2019, my long-standing co-author Rajesh Ramachandran and I argued that "reservation for the most oppressed groups was conceptualised as a policy of compensatory discrimination, as a remedial measure for contemporary handicaps faced by individuals due to historical discrimination and deep stigmatisation on account of their untouchable caste status," in an Economic & Political Weekly paper.

The 10% quota takes as its basis economic deprivation, which is a transient feature, i.e. individuals can fall into or climb out of poverty, and excludes from its ambit the poorest groups. Thus, it completely disregards B.R. Ambedkar's point about why India needed caste-based compensatory discrimination: it was needed because a system of formal equality (one person, one vote) was being superimposed on a structure of deep inequality (represented by the caste system). An important feature of the caste system was that those regarded at the very bottom were deeply stigmatised on account of their birth. For them, untouchability was not a transient feature, which they could fall into or get out of. This was a classic case of inequality of opportunity, and reservations were seen as an instrument to level the playing field.

Why do we see support for EWS, which is based on an economic criteria, from political parties, unlike the protests against the Mandal Commission recommendations and the critiques of caste-based reservation which call it an issue of 'merit'?

This absence of protest reveals the true intent of this quota. The Mandal Commission recommendations were violently opposed as they gave entry into privileged, decision-making positions, to groups that were hitherto poorly-represented. There is plenty of research showing that the low representation, and in some cases absence, of the most marginalised caste and tribal groups, is neither accidental nor due to some inherent lack of 'merit'. We should note that merit is not an objective measure like height or weight. 'Merit' should be properly understood for what it embodies. Individuals born into privileged families get the best education, exposure to books, travel, access to good health – most of all, networks and social capital – a combination of factors that end up making these individuals more 'meritorious'. Those that are denied these opportunities due to birth are not inherently inferior. There is no reason to believe that under similar circumstances, children born into stigmatised groups would grow up to be less meritorious. Equally, we should recognise that hereditary reservations, or nepotism, can favour those born into privileged families, even if they are low on intrinsic merit or ability.

The dominant upper caste discourse sees individuals from marginalised and stigmatised groups as inherently inferior, with lower ability/merit. This discourse is completely blind to the structures of advantage and opportunity that produce "merit". It completely disregards inequality of opportunity.

Earlier reservations were opposed on the grounds that they lowered the merit of efficiency of institutions by allowing entry of individuals who were less capable. The 10% quota, because it is meant for upper castes, does not elicit a negative response as upper castes, who dominate the public discourse, see the poor as unfortunate victims of circumstances, therefore deserving of sympathy and help, rather than as inherently incapable.

The judgement emphasises the need to create 'casteless and classless society', and to ensure that reservation does not continue "for an indefinite period of time so as to become a vested interest." Does the judgement achieve these goals?

Actually, the 10% quota, because it departs from the principle of compensatory discrimination, does not at all move India in the direction of a casteless society. It makes caste salient by excluding poor individuals from certain caste categories.

Until the 10% quota, compensatory discrimination – which is caste-based – can be justified because it recognises deep and significant social disabilities that afflict individuals on account of the accident of birth – as the family in which we are born define our circumstances at birth over which we have no control – and compensates for that disadvantage through preferential policies. We should note that the reservation system is applicable to a tiny sliver of jobs (formal, permanent public sector jobs) and to public colleges/ universities. Thus, the succour it provides is small but it has managed to create a small but visible Dalit and Adivasi middle class whose voices have amplified issues around caste-based discrimination and kept the problems in pubic view. The recognition of a problem is the first step towards its solution, and reservations have produced a group of people whose collective voice and narratives have served as a necessary reminder of the gravity of caste-based disadvantage and discrimination.

To move towards a casteless society, we need a clear-headed and dispassionate analysis of the myriad contours of marginalisation and stigmatisation: How are these manifested? In which spheres? What would be the best policy mix (of which reservations would be a tiny part) that will attack the multi-headed being?

This would be a good point to remind ourselves that reservations are not a magic wand designed to solve all problems related to disadvantage, discrimination and representation. At best, they can be one part of a multi-faceted solution.

Will the verdict, in your opinion, have a bearing on the government panel's deliberations that has been formed to decide on the inclusion of Dalit Christians and Muslims under the SC category?

The Union government yesterday argued against extending these reservations. The claim is that Dalits who converted to Islam or Christianity do not face stigmatisation or discrimination, as formally, these religions do not have a caste system and do not practice untouchability. While it is true that elsewhere in the world, Islam and Christianity are not organised around a caste system, in South Asia (not just in India), these religions have caste-like divisions. These have been noted in several publications. A short summary can be found here. The only way to assess disadvantage and discrimination should be through a systematic study of data and evidence. This was also reportedly stated by the Centre, when it told the Supreme Court if all the converts are arbitrarily given the perks of reservation without examining the aspect of social disability, it would cause a grave injustice and would be an abuse of the process of law, consequently affecting the rights of the SC groups.

By this logic, a denial of these reservations without a systematic assessment of data would be equally arbitrary.

Having said that, there is debate even within pro-reservation groups on whether reservations should be extended to Dalit Muslims and Christians. Ambedkar's vision was to keep the instrument of reservations targeted towards the most deserving – those who suffered the indelible stigma of untouchability. Over time, there has been dilution of this vision as the instrument has been extended to multiple groups.

This could be an important moment for us to step back, collate as much evidence as possible, and assess the contemporary state of socio-economic disadvantage of various groups. A timely 2021 census would have provided the much-needed data. The release of the National Sample Survey consumption expenditure survey data (and resumption of the five-yearly rounds) would have enabled us to assess the progress on poverty reduction. In the absence of hard evidence, we would be left with speculation, preconceived notions, stereotypes and no headway towards substantial policy solutions targeted to reduce disadvantage and discrimination.

Note: The interview has been updated with a question on non-income based eligibility requirements in the EWS reservation and if it helps target the poor better.

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