Sthabir Khora
The supreme court has fixed 50% as the limit of reservation. It hasn’t enlightened the populace about the rationale and the jurisprudential principle involved in it. While there are academic acrobatics around reservation and creamy layer there is no deliberation around this. It appears that the logic of 50% ceiling on reservation is made up of titanium.
The principle seems to be the principle of equality – 50% unreserved vis a vis 50% reserved. The 50:50 is based on the principle of formal equality. But this leads to a strange situation. Out of hundred percent, 50% reserved category is based on the principle of substantive equality while the other 50 % is based on formal equality. This is a situation where formal equality and substantive equality are given equal weight. But, usually substantive equality is supposed to be better than formally equality and override formal equality. That’s how first of all 50% reservation can be given.
If substantive equality is applied throughout the hundred percent then there is no violation of the principle of equality. Substantive equality applied to the entire 100% means pro rata representation of all cluster of groups (like the scheduled caste is a cluster). However the court definitely is against such arrangement and its opinion is that fifty percent should be free from reservation. This means the 50% reservation free sphere is based not on the principle of equality but some other principle. That other principle must be efficiency.
Once we assume that the 50% reservation free space is based on the principle of efficiency then the whole arrangement becomes not an exercise of the principle of equality but the principle of proportionality. It involves balancing justice (50% reserved category) vis a vis efficiency (the 50 % general category). Once it is formulated like this it’s a bit easier to comment on the proportion of the pie that should be reservation free.
When we utter that something is a balance of two principles (justice and efficiency) obviously it reminds one of John Rawls because his concern was also to balance two principles. He balanced it by making the difference principle subservient to the equality principle. His first principle can be seen as substantive equality because without this there cannot be equal Liberty. Rawls’ equality is so severe that he is not willing to give anything extra to the individual for his or her natural talent because he considers them as simply accident. This clearly implies the subservience of efficiency to equality and therefore justice. He will subject the efficiency to the equality principle rather than the other way round. Efficiency can find a place in his difference principle which is subservient to the first principle.
Justice literature tell us that justice is the ultimate virtue and overrides any other concerns. That justice overrides efficiency will be evident from the kind of questions which we can ask to justice and efficiency. We can ask efficiency for what but we cannot ask justice for what. We can ask efficiency for justice but we cannot ask justice for efficiency. We can trade off efficiency for justice but not vice versa. A dictatorship can be efficient but not just.
Once we settle that justice overrides efficiency and both are not of equal worth, instinctively we can figure out that the sphere of efficiency must be smaller than the sphere of justice. If the sphere of efficiency is not smaller than justice then there is a chance of efficiency trampling down justice. But if we are convinced that justice overrides efficiency then why do we even need efficiency! why not the hundred percent be based just on the basis of justice? Instinctively we feel that this cannot be because justice itself needs efficiency and efficiency also need justice. The need of efficiency is illustrated in the saying ‘justice delayed is justice denied’. This statement illustrates that efficiency is a component in justice. The same compensation received in time is justice and received after much delay is injustice. However it is common sense that only efficiency is not justice. There is also the saying that let justice be done even if the world collapse. This means justice is not expediency and quick fixes. It is the right thing at the right time. You not only want the justice quickly but you also want that ultimately what you get looks like justice and not something else. This is the qualitative aspect of justice and efficiency cannot compensate for it. The qualitative aspect of justice is best illustrated by Eugen Ehrlich’s statement that there is no such thing as one justice only, as there is no such thing as one beauty only. This is the reason why justice (phenomenology) has to triumph over efficiency (positivism).
Sometimes we don’t have to even trade efficiency for justice as both may converge. Ambedkar said that most of the workers of Gandhi’s harijan sevak sangh should be untouchables as they will be interested in improving the condition of the untouchable. If the department of social justice which works for SC/ST consists mostly of SC/ST then there is a convergence of efficiency as well as justice because appointing of such persons itself is an act of justice.
Justice has many facets – social, political, economic. Without political justice other justices are vulnerable. Reservation in government is more about political and social justice and not economic justice.
Once we agree that efficiency is necessary but subservient to justice then what is left for us is to decide the sphere of efficiency which instinctively we know has to be smaller than justice. The only problem is how small the sphere of efficiency must be. It has to be of such proportion that its contribution to the society is much more compared to the price society pays for it in terms of waiving the social justice requirement. Applying Rawls to the Indian context justice can give in to efficiency if the end result is beneficial to the marginalised. Empirically, this involves running a justice audit on any particular Institution like the IIT. It means posing the question that what IITs have taken from Indian society and what they have given in return which has benefited the mass at the bottom. In a hypothetical case, difference principle is applied when the state waives the requirement of reservation to a technical institute which in turn produces the technology which obviates the need for manual scavenging and the need for human labour in the sewers. This a hypothetical example as such exercise (justice audit) has not been done by the academia in India.
After this travel, we come to the supreme court judgement where it says that reservation cannot be applied to speciality and super speciality. That sphere is to be reservation free which is in the nature of speciality and super speciality. Speciality and super speciality has to be a small percentage. It can not be a humongous 50% making the idea of speciality and super speciality ridiculous. Most part and level of the government cannot claim to be speciality and super speciality.
Conclusion
The fifty percent threshold makes sense only when it is seen as an application of the principle of formal equality. It loses its sanctity if the arrangement is seen as an application of the principle of proportionality where one weighs the comparative weights of justice with efficiency.
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Dr Sthabir Khora is Associate Professor in the School of Education, Tata Institute of Social Sciences. His book “Education and Teacher Professionalism” (2011, Jaipur: Rawat Publications) is recommended reading in the M.Ed Syllabus of Punjabi University, Patiala.
