SC’s triple test for OBC quota can start fresh caste conflicts. Govt must step in

Nanavati Commission to Rangnath Mishra Commission—all had their credibility publicly questioned. Research published in peer reviewed journals are seen as more reliable.

Supreme Court in New Delhi | ANI

Uttar Pradesh has become the latest state whose high court has struck down quota for OBCs in urban local bodies. Previously, high courts of Maharashtra, Odisha, Madhya Pradesh, Karnataka, and Patna did this based on a three-fold test criterion set by the Supreme Court in March 2021.

The Allahabad High Court judgment renewed Opposition attacks on the BJP over its commitment to social justice, forcing Chief Minister Yogi Adityanath to set up a five-member commission to look into the issue of OBC quota and also declare that the government could move the Supreme Court. Until then, the urban local body election won’t be conducted.

In this article, I examine the Supreme Court’s three-fold test criterion and argue that it is erroneous to ask state governments to appoint commissions to study backwardness. A growing number of empirical studies—three of which I discuss here—have already proven the benefits of reservation in local bodies.

Three-fold test criterion

A Supreme Court bench of Justice A.M. Khanwilkar and Justice Dinesh Maheshwari established a three-fold test criterion in Vikas Kishanrao Gawali vs The State of Maharashtra on 4 March 2021. The criteria inlcude: (1) setting up a dedicated commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of backwardness in local bodies of the state, (2) specifying proportion of reservation required to be provisioned in local body wise in the light of recommendations of the Commission, (3) total reservation for SCs/STs/OBCs shall not exceed 50 per cent.

The high courts have been insistent on setting up dedicated commissions for conducting empirical inquiry. But one should ask whether government-appointed commissions are competent enough to conduct such studies? When they do, the reliability of such inquiries becomes suspect because it has been seen that these commissions often turn out to be the mouthpiece of governments.

We have seen recommendations of numerous commissions in India such as Nanavati Commission, W.C. Banerjee Commission, Ranganath Mishra Commission, etc.. Their credibility has been publicly questioned. Since there is no mechanism to ensure reliability of such commissions’ reports, there is a growing trend to rely on the research published in peer-reviewed journals.

Since Indian courts insist on knowing the implications of reservation, I discuss three research papers, which have investigated the positive impact of reservation in local bodies. These papers enquire about reservation for Scheduled Castes, Scheduled Tribes, and women; unfortunately, there is no paper that exclusively looked at the benefits of Other Backward Classes (OBC) reservation in local bodies. But the findings of these papers can be extended to OBCs whose most/extreme underprivileged sections often claim to face stigmatisation similar to Scheduled Castes. Furthermore, reservation for women allows OBC women to contest elections.

Reservation changes opinion of upper castes, men

Political scientist Simon Chauchard in his paper ‘Can Descriptive Representation Change Beliefs about a Stigmatized Group? Evidence from Rural India’ published in the American Political Science Review (2014) examines how reservation changed belief and opinion of upper castes towards members of Scheduled Castes in Rajasthan. Chauchard’s empirical study provides “credible causal evidence that reservations affect the psychology of members of dominant castes” — their perceived social and legal norms of interactions. Furthermore, Chauchard argues that the “changes in beliefs [of upper castes] in turn appear to have far-reaching consequences for inter-caste relations, as villagers’ discriminatory intentions also decrease under reservation.”

Rikhil R. Bhavnani’s research paper ‘Do Electoral Quotas Work after They Are Withdrawn? Evidence from a Natural Experiment in India’, published in the American Political Science Review (2009), examines a popular question referred to in everyday discussion in India—does reservation make people handicapped?

Bhavnani investigates whether women’s chances of winning elections alter when the quota is withdrawn. He finds that the probability of a woman winning office in a constituency that was previously reserved remains five times higher than her chance of winning in a constituency that was never reserved.

The study also indicates that reservation pushes families to allow their women to contest elections. Women candidates can increase the turnout of women voters. When women candidates win elections, their performance can force men to change their patriarchal belief against women running public offices efficiently.

“Reservation works in part by introducing into politics women who are able to win elections after reservations are withdrawn and by allowing [political] parties to learn that women can win elections,” Bhavnani writes in the paper.

Reservation works in Scheduled Tribe areas

In their recent paper, ‘Does Political Affirmative Action Work, and for Whom? Theory and Evidence on India’s Scheduled Areas’, published in the American Political Science Review (2020), Saad Gulzar, Nicholas Haas, and Benjamin Pasquale investigate whether reservation undermines or promotes development.

They studied areas where highest positions are reserved for Scheduled Tribes. They find that “reservations deliver no worse overall outcomes, that there are large gains for targeted minorities, and that these gains come at the cost of the relatively privileged, not other minorities.”

They also find improvements in other pro-poor programmes, including a rural roads programme and general public goods. Reservations more closely align benefits to each group’s population share, allaying concerns of overcompensation for inequalities. Furthermore, they find that reservation redistributes both political and economic power without hindering overall development, which contradicts what critics of reservation claim.

The above research papers, published in world’s topmost peer-reviewed journals, clearly demonstrate that reservation policy in India’s local government has multiple benefits. It is high time that the Supreme Court starts taking into consideration this growing body of authentic academic research while passing judgments or comments on the reservation policy. The courts in India have become a prisoner of their judgments, which aren’t based on scientific research. Therefore, the Indian judiciary must not only rely on its previous judgments but also look into multi-disciplinary research when dealing with cases of reservation.

It is quite astonishing that the Supreme Court has entered into a relatively settled debate and its judgment can potentially start a fresh round of caste conflicts, which could be detrimental to India’s peace, tranquillity, and progress. The central government must step in and place these issues in the Ninth Schedule of the Constitution to avoid everyday judicial intervention.

Arvind Kumar (@arvind_kumar__), PhD in Politics, Royal Holloway, University of London, and Associate Fellow of Higher Education Academy (AFHEA), United Kingdom.