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On September, 26 last month, Supreme Court reserved judgement on Economically Weaker Sections (EWS) quota in admissions, jobs after hearing both sides in the case for nearly seven days. The debate centered on the constitutional permissibility of economic backwardness as a criterion for reservation and affirmative action to the children of such families. While Article 16 of our constitution grants equal opportunity in matters of public employment, equal opportunity and fair opportunity are not always coterminous, especially where reservations or affirmative actions are premised on omnibus ascriptive criteria like ethnicity, race, caste, religion, etc. for two main reasons; Firstly, it fails to honours the state-citizen contract in the liberal democracies per se, rather than the State-and omnibus class/race contract, that eclipses the true spirit of the natural/fundamental rights theory that emanated from the recognition of the unalienable individual rights to- life, liberty, dignity, and property. Secondly, such an omnibus categorization ignores the internal power and resource asymmetries among members/families of marginalized groups.

The popular touchstone of any positive state discrimination and its policy efficacy since the 1970s is American political philosopher John Rawls, ‘A Theory of Justice (1971)’.  The Rawlsian quest for justice with fairness is envisaged in the two principles with lexical priority. The first/liberty principle articulates that, “Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Social and economic arrangements, however unjust, don’t change overnight and any such narcissistic and utopian follies had only resulted in untold suffering and evil for humanity. Not surprisingly, for Rawls, the liberty principle is sacrosanct, non-negotiable and trumps over the second principle in entirety.

The second principle is the lodestar of affirmative actions for the marginalized or vulnerable citizens and not communities per se in modern societies in general and liberal democracies in particular. It states that “Social and economic inequalities are to be arranged so that they are both –firstly, attached to offices and positions open to all under conditions of fair equality of opportunity, secondly, to the greatest benefit of the least advantaged.”

Equality of opportunity is banal rhetoric in absence of fairness and coterminous ‘equality of outcome’. This can be achieved by minimizing two factors viz. ‘natural lottery’ and ‘social lottery’ over which people have no control but which decisively affect their lifetime economic prospects and overall well-being. A child may be born in a favoured race or gender this ‘natural lottery’ may give tailwinds to his educational attainment and career choices. In some cases, the ‘natural lottery’ is further supplemented by the ‘social lottery’ that refers to the person born in more or less nurturing families and social circumstances. The presence of both natural and social lotteries, or one or none of the either, have profound bearings on the educational attainments, career choices, life expectancy etc. of a person.

In the backdrop of the global phenomenon of rollback of the government, resulting in poor or little access to quality public services namely education, healthcare, and nourishment (prenatal and postnatal) that help to unlock the potential of its economically straitjacketed children, economic deprivation emerges  as the starkest basis of injustice.

Unlike the ascriptive basis of affirmative action, economic criteria for affirmative action and reservation is the most uncomplex, temporal, and empirical criteria to uphold the principle of fair equality of opportunity in conjunction with the greatest benefit of the least advantaged.

It is uncomplex for it does not mask the internal asymmetries among the omnibus criteria viz. ethnicity, caste, race, religion etc. for these monolithic identities through historical and cultural reasons may include favoured and resourceful subgroups in each of the aforesaid criteria that may thwart ‘fairness’ in the delivery of social justice.

It is temporal and therefore passes the test of Rawls’s difference principle- greatest benefit of the least worst-off, for it firewalls the social justice for down–and–out fellows through  anew dispersal of affirmative actions based on family economic backwardness.

The legendary American management consultant, educator and author Peter Drucker rightly observed that “you cannot manage what you cannot measure”. The unaddressed maladies of affirmative action can be ethically managed with economic criterion, as it is empirical in your face with gross annual income below Rs 8 lakh, etc.

In absence of ring-fencing the ‘talent and social potential’ of the students of economically weaker families from the vagaries of natural and social lottery, it will perpetuate expressive State discrimination towards EWS students whose potential(s) are straitjacketed not only due to economic hardships of the family but astounding competition from the progeny of well-heeled, educated, and helicopter parents from the general category students on the one hand and exclusion from the scholarships, fees-waiver, and age relaxation available to similarly economically placed students in other categories. 

These pieces are being published as they have been received – they have not been edited/fact-checked by ThePrint.

Also read: YourTurn/SubscriberWrites: Why we must defend everyone’s right to disagree, but not let it divide us beyond repair