India’s Pernicious Politics of Backwardness
Professor P. Radhakrishnan
When judicial populism, political opportunism, and executive excesses wreck well-conceived Constitutional provisions for social engineering and make them counter-productive, it must be the duty of concerned intellectual activists to caution the nation of the pernicious consequences and work for instilling the much needed social sanity and sensitivity in the dramatis personae. Arun Shourie is one of a kind of this rare breed of activists. In his view those who are making the new India by their innovations, hard work and by striving for excellence must speak up; they must organise. He has spoken up, and organised – as a one-man army through, among other things, his present book.
The book is of the same genre as Shourie’s Courts and Their Judgments (2001), and it can be read as a companion volume on an ongoing internecine and socially ruinous ballgame between judges and politicians.
Shourie begins the book with an excerpt from Jawaharlal Nehru's letter to Chief Ministers, 27 June 1961:
The only way to help a backward group is to give opportunities of good education; this includes technical education which is becoming more and more important. Everything else is provision of some kind of crutches which do not add to the strength or health of the body … I have no doubt that there is a vast reservoir of potential talent in this country if only we can give it opportunity … But if we go in for reservations on communal and caste basis, we swamp the bright and able people and remain second-rate or third-rate. I am grieved to learn how far this business of reservations has gone based on communal considerations. It has amazed me to learn that even promotions are based sometimes on communal or caste considerations. This way lies not only folly but also disaster. Let us help the backward groups by all means, but never at the cost of efficiency. How are we going to build the public sector or indeed any sector with second-rate people?
After dissecting several Supreme Court judgments Shourie has concluded that over the years India’s political and legal classes and intelligentsia have turned Nehru’s exhortations from a prophylactic to an apocrypha, and subverted the very basis of the Constitution for narrow and populist considerations.
Armed with unimpeachable evidence Shourie has argued that far from improving the lot of the underprivileged the judicial and political maneuvering of quotas in the name of affirmative action in government services and educational institutions in various states and at the central level have played havoc on and caused irreparable damage to the system.
Among the array of questions which Shourie has raised are: how did caste-based reservations come to be accepted despite the fact that Constitution had forbidden it, where did the figure of "52 per cent OBC population" come from, why were reservations at entry extended to promotions, do the so-called "backward castes" really need special privileges, what has been the role of successive governments, why did judiciary allow this perversion of the Constitution, how several judges legitimised caste-based quotas and how the court compromised when the government of the day went on changing the basic structure of the Constitution.
His search for answers has identified the political class as the villain in the “falling over backwards” game; and judiciary as the hero in the related judicial jigsaw. For, in the ultimate analysis it is the chaotic proliferation of jurisprudential literature on backward classes and reservations which has emboldened the political class to override and overturn judicial pronouncements as a matter of political expediency.
Stating that courts and judges are not immune from political rhetoric, Shourie has faulted them for exaggerating injustices to legitimize what the politician, has for other reasons, found convenient; for the encouragement they have given to the worst instincts of the political class; and for "judicial populism” which has reduced the credibility of courts. He goes on: `By legitimising a programme based on caste, they have perpetuated a tumour; they have not just slowed down growth, they have lowered norms of conduct, and thereby harmed the very ones whom they wanted to help; they have done worse; they have lent their hand to dividing our people and country.’
Stating that the twin objectives of Articles 15 and 16 were to provide adequate protection to the disadvantaged on the one hand and, through special measures, raise their capabilities so that they would on their own compete with the rest, Shourie has drawn attention to the distortions: The duty to provide adequate protection became the duty to give preferential treatment; the duty to give preferential treatment has become the duty to meet over-riding claims as a first charge.
As Shourie would have, the way reservations have stoked casteism itself shows that, even if discrimination in the past was based on caste, the way to remove it is not base it on caste; the way is to adopt such criteria as would dissolve caste, such criteria as would make people transcend caste and strive to qualify on those criteria; the way is stoke those technological changes, those processes of modernization as will erase caste. In his view the country cannot be drawn out of the abyss through convoluted compromises. The axe has to be put at the root. For this his suggestions include the following:
We should be alert to the way catch-expressions – “the poor”, “the backward”, “social justice” – are being used to undermine standards, to flout norms, to put institutions to work – not for the millions in those categories but for the ones who have fooled those millions with those catch phrases; subject every claim – whether it is made in the name of “the poor”, “the backward”, whosoever – to rational examination; after it has been in effect for a while, subject every concession to empirical evidence; shift back from the figment, equality of outcomes, to equality of opportunities; in striving towards that, compel politicians to move away from the easy option – of just decreeing some reservations, etc. – to doing the detailed and continuous work that positive help requires, the assistance that the disadvantaged need for availing equal opportunities; be alert to the way never-never goals like “social justice” over-extend and eventually undermine the State; shift the debate from “a large State vs. a small State” to a State that performs; refashion policies of the State on truly secular and liberal principles; and make the individual and not the group the unit of State policy.
Though Shourie has chronicled at length the problems of the judiciary vis-à-vis the executive, legislature and parliament in the context of the abuse of the constitutional provisions on reservations, many of the important issues are lost in his discursive journalistic style. As a result, a reader does not get in one place what he perceives as problems and what he proposes as solutions. The book could have read much better after pruning the several ideas and issues repeated ad naseam. Though academics have done a lot of work on the controversial reservation issue, particularly in the context of Mandal, Shourie has hardly made any reference to any of them. As a result, the book is more in the nature of a long journalistic scroll. All the same it does make a very important contribution to place the reservation discourse in perspective.
Falling Over Backwards: An essay against Reservations and against Judicial Populism. By Arun Shourie, ASA and Rupa & Co. New Delhi. Pp. xvi + 380. Rs. 495.
- Asian Tribune -