(Dr. Shashi Tharoor is a two-time MP from Thiruvananthapuram, the Chairman of the Parliamentary Standing Committee on External Affairs, the former Union Minister of State for External Affairs and Human Resource Development and the former UN Under-Secretary-General. He has written 15 books, including, most recently, India Shastra: Reflections On the Nation in Our Time.)
In all the understandable attention paid to the Supreme Court's judgement on Section 66A, the media and the commentariat have overlooked another Supreme Court decision at roughly the same time which is potentially even more far-reaching and significant for our democracy.
In a 64-page judgment, a Bench of Justices Ranjan Gogoi and Rohinton Nariman (who also wrote the 66A judgement, though this one is mainly Justice Gogoi's work) struck down the UPA Government's notification including Jats in the Central list of OBCs. Equally significant was the rationale the Justices provided: they observed that the State should not go by the "perception of the self-proclaimed socially backward class or advanced classes" on whether they deserved to be categorised among the "less fortunates." New formulae, the Court averred, have to be found to determine backwardness.
Most significantly, the Supreme Court held that caste, while acknowledged to be a prominent cause of injustice in the country historically, could not be the sole determinant of the backwardness of a class. "Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness," the Court argued in its judgment.
The Court ruled that the State should maintain a high level of vigilance to uncover emerging forms of backwardness in a continually evolving society. "The gates would be opened only to permit entry of the most distressed. Any other inclusions would be a serious abdication of the constitutional duty of the State," the court warned.
The Government had claimed that the inclusion of the Jats on the OBC list was based on the "compelling factor" that the Centre is obliged to "work in tandem and not at cross purposes" with the States, which had already included Jats in many State OBC Lists over a decade ago. The Court rejected that reasoning, observing that such "grave and important" decisions in reference to Articles 14 and 16 of the Constitution must be made on the basis of "contemporaneous inputs", which were not available. (The statistical data on which the Government had based itself was more than ten years old and the Court felt that it was already "outdated and antiquated" for the purpose).
Most striking are the court's observations on what constitutes "social backwardness". It says that educational backwardness, which the Government referred to, isn't enough; neither is purely economic backwardness, though both may contribute to social backwardness. "But social backwardness," the Court observes, "is a distinct concept that emerges from multiple circumstances ranging from the social and cultural, to economic, educational and even political."
What about caste, since Jats are, after all, a caste in nine northern Indian states? The Court concedes that caste may be a prominent factor for 'easy determination of backwardness', but the judgment discourages "the identification of a group as backward solely on the basis of caste" and calls for "new practices, methods and yardsticks" to be evolved. It adds the observation that class may be a factor too, since a class is "an identifiable section of society", but again it may not be enough to justify reservations. Citing its own decision to recognize transgenders as a distinct community with justiciable rights, the Court pats itself on the back for identifying a form of social backwardness that has nothing to do with caste or class. Its judgement points to the shifting definitions of various groups in determining their eligibility for Government benefits.
This is fascinating philosophically, but it opens up a proverbial can of worms for government policy-makers. The most contentious element of the Court's judgement is, of course, its proposition that caste, and the need to right historical wrongs, is no longer sufficient grounds for government benefits. Nor is the self-perception of a caste that it's backward; not even the perception by other castes that a caste is backward is good enough. New methods, the judgement insists, have to be developed to identify the backwardness of a group of people.
The Court, drawing a somewhat fuzzy line between 'past' and 'emerging' forms of backwardness, advances the presumption of the "progressive advancement of all citizens on all fronts, i.e., social, economic and educational" that makes history an insufficient guide. You can't keep citing historical wrongs and propose reservations as a solution to redressing them, the Court says. What it doesn't do, though, is to take the logic of its own reasoning one step farther, by challenging caste-based reservations altogether.
Still, it has set off a conceptual bomb under the complacent edifice of the reservation system. We have long accepted the logic of reservations in our country as a means of making up for millennia of discrimination based on birth. This is why the Constitution inaugurated the world's oldest and farthest-reaching affirmative action programme, guaranteeing Scheduled Castes and Tribes not only equality of opportunity, but guaranteed outcomes, with reserved places in educational institutions, government jobs and even seats in parliament and the State Assemblies. These reservations were granted to groups listed in Schedules of the Constitution on the basis of their (presumably immutable) caste identities. The addition of the OBC category --after the acceptance by the VP Singh Government of the recommendations of the Mandal Commission -- added more people to the numbers benefiting from reservations, but it didn't change the basis on which they benefited: despite the "C" in "OBC" referring to "classes", the OBC lists contained castes and sub-castes.
So we witnessed the unedifying (and unwittingly hilarious) spectacle of castes fighting with each other to be declared backward: the competitive zeal of the Meenas and the Gujjars in Rajasthan to be deemed more backward than each other would have been funny if both sides weren't so deadly serious. As an uncle of mine sagely observed, "In our country now, you can't go forward unless you're a backward."
The transgender judgement, and the latest one disqualifying Jats, opens the floodgates to far-reaching questions. If caste isn't a good enough basis, and class isn't either, and now lack of education or income doesn't suffice, but the misfortune of being born transgender does, then how do we determine who deserves reservations in our society? The Supreme Court says historical wrongs are passe; the Government needs to establish that a group of potential beneficiaries is suffering backwardness right now. But it doesn't tell us what criteria to apply.
This leaves open all further Government classifications to future Court challenge. That may be what the Court wanted, but they should beware the doctrine of unintended consequences. What if someone goes to the Supreme Court saying that following this decision, the entire existing system of reservations - and every established list of SCs, STs and OBCs -- should be reviewed, since they were all based on historical wrongs and "antiquated" data? Why should only Jat claims be dismissed on that basis, and why not everyone else's? And if that happens, doesn't it open the Court to the logical follow-up question: since the very basis for deciding them has been demolished by the Court, are reservations themselves unconstitutional?
The shadow of Pandora now hovers over the Supreme Court -- but her notorious box may already have been opened by this dramatic, and surprisingly under-reported, judgement.
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