Ishaan Bansal and Prannv Dhawan speak with Prof. Ashwini Deshpande, on the Supreme Court’s recent judgement invalidating 100% reservation in teaching posts for Scheduled Tribes in scheduled areas, and its implications on tribal identity and welfare.

Prof. Deshpande is currently Professor of Economics at Ashoka University and author of ‘Affirmative Action in India’ and ‘Grammar of Caste: Economic Discrimination in Contemporary India’. She was also formerly a faculty at the University of Delhi.

LSPR: The Supreme Court in Chebrolu Leela Prasad Rao and Ors v State of AP and Ors, struck down 100% reservation for tribal teachers in scheduled areas. As an economist who’s worked on affirmative action, what are your thoughts on the judgment? What are the key questions that need to be kept in mind?

The first question is about the percentage that should be reserved for any community. There is no gold standard, I am a supporter of affirmative action, but the precise amount of the quota should be decided based on the evidence of the gap that needs to be bridged which could vary from community to community, state to state and from indicator to indicator. For example, the gaps in education might be different from the gaps in employment. If one really wants to go into detail that is the kind of micro-level analysis required, but typically the courts don’t do that.

In general, I am uncomfortable with hundred percent reservation. The mere fact that a hundred percent reservation worked in favour of tribals does not mean that it is ideal. Jobs or educational positions should not be the preserve of any one community. Take the example of manual scavenging; there is no legal reservation in manual scavenging, yet this job is exclusively done by one community. Why should that be the case? It is the belief that this job will only be done by one community that becomes the basis for stigmatization. So, in my view legally or extra-legally whenever jobs get associated with one community, that’s not the right thing. If privileged positions like that of CEOs are completely occupied by upper-castes, it would not be representative of the population. When we ask for requirements of reservation in privileged jobs, I think there is something to be said about the diversity of representation everywhere, including the bottom-most job and the highest job. In this sense, a hundred percent reservation for any community is problematic.

The wording of the judgement is problematic. It is unbelievably patronizing, and it is offensive in parts. It takes a very linear view of development, and what is considered to be a modern evolved human being versus primitive backward human being. There is an implicit view in the judgement that non-tribal human beings are more evolved, are more complete human beings when compared to tribals.

First of all, this linear view of development is completely ahistorical and incorrect. Secondly, it is also oblivious to the fact that many tribal communities have much more progressive practices and internal laws, than the so-called “mainstream” population. For example, there are some tribal communities that are matriarchal and have greater gender equality. I don’t want to exoticise the tribals, but my point is that a linear view of evolution where non-tribals can be seen as more evolved than tribals is objectionable and offensive. And reservations should not be seen as a way by which tribal individuals are converted into the advanced or evolved non-tribal. So, including them in the mainstream in terms of economic benefits or social adaptability is one thing, but to see them as animals who need to be pulled up by their collars because “they” will fit in with “us” better is the real problem with the judgement.

Whether a community should be given reservation is an evidence-based question. So, when Jats, Marathas, or Patels ask for reservation, the evidence on discrimination should be examined. A paper in Economic and Political Weekly found that Jats, Marathas, and Patels do not lag behind other caste communities. Their outcomes are second only to the Brahmins in Gujarat, Maharashtra, and Haryana. They are much better off than the currently designated OBCs. Therefore, we can’t argue on the basis of the evidence that they should be given reservation.

LSPR: The understanding of tribals and their way of life still remains limited. Even the Supreme Court, as you pointed out, has been extremely insensitive in articulating the judgement. What do you think could be some specific ways in which a policy could address this limited understanding when trying to solve systematic discrimination problems against tribals? What kind of specific things can be done for tribal welfare?

First, tribals are a heterogeneous group. There is huge diversity within tribal groups in terms of their customs, ways of life, etc. So, reservation is only one thing, the point of having the Fifth and Sixth Schedules of the Constitution is to protect and respect the ways of life and practices of tribals and their integral relationship with forest and forest produce. The Forest Rights Act and the Fifth and Sixth Schedules of the Constitution are the two components of our constitutional legislative structure that protect the rights of tribals. The people should have the right to live with dignity, regardless of their community. Whether they are tribals, migrants, or Dalits, they are human beings who are entitled to dignity. Secondly, tribals who want to get into mainstream government jobs should be given a chance. Additionally, if there are tribal communities or individuals that do not want to get mainstream government jobs, but instead, want to retain their forest-based way of life, they should be free to do so. Reservation alone only targets the problem of government jobs, but reservations are complemented with other constitutional provisions that are important to protect their rights.

LSPR: Legal scholars have pointed out that this government measure was not reservation per se, and that this was a government order under the Schedule V of the Constitution. Activists have also highlighted that these appointments were done to accord autonomy of the Scheduled Tribes residing in the Scheduled Areas to govern their own education because there was evidence of lack of accessibility for tribal students. What do you think about these concerns?

If that is the case, it is a different story. But I really do not want to comment on 100% versus 98% versus 99% reservation. My main problem is with the way in which the judgement is worded. What is the evidentiary basis for asking that person has a claim to affirmative action? And what is the evidentiary basis for not giving it? For example, when Jats ask for reservations, they also make claims on very weak evidence. My point is, whenever a case goes to court on reservations, the commitment to looking at the evidence is typically not very strong. Supposing the evidence indicates that tribal teachers will be better equipped to do the job of tribal education, then the courts cannot completely dismiss their claim to affirmative action.

However, it is when hundred percent reservation becomes law that complications might arise. I would personally prefer a judgment saying that, predominantly, tribal teachers should be employed. This stance would give a chance to good non-tribal teachers who can communicate in the local language. One can argue that tribal identity is a priority, but the candidates’ suitability for these teaching jobs is an important characteristic that would also determine appointments.

But we can safeguard tribal autonomy without giving hundred percent reservation. If safeguarding autonomy is imperative, the worldview, i.e., the way in which we view tribals, becomes very important. As I said before, this is what I find problematic with this judgement.

LSPR: The Court’s judgement is also important for the question of reverse discrimination. The judgment holds that the government order was in gross violation of the Equality Clause (Article 14) of the Constitution. What are your thoughts on counter-discrimination measures being adjudged as ‘discriminatory’?

Affirmative action, which is a tool for eliminating discrimination in the society, is sometimes termed as reverse discrimination by the elite classes. My take is that affirmative action does reverse discriminate. But it should be called compensatory discrimination.

Let’s suppose that there are two groups, A and B, and there is a set of jobs. It is very clear that job markets are very competitive, particularly the market for government jobs. It is identical to the allocation of scarce positions. If there is discrimination, members of Group A will never be able to get into coveted jobs. So, when you observe the representation in jobs, it will always be members of Group B who land these jobs.

People might say, well, this is not discrimination, it’s just the way it is. They might argue that members of Group B are performing better than members of Group A. It can also be said that discrimination is not the factor preventing members of group A from being hired. So, if a policy prescribes the mandatory hiring of a certain number of members of Group A, a claim can be made that they are not sufficiently qualified in the competitive job market for this opportunity. However, reservation provides compensation for historical disadvantages by mandating the employment of the best among Group A. This reservation seeks to redress the effect of factors that led to the denial of access to social mobility.

If historical discrimination—not current, active discrimination—excludes individuals from being appointed at these positions, this explains why members of group A are less qualified. It may be because they have been facing discrimination from childhood. They don’t get into schools that give them a good education. They don’t have access to extra-curricular resources, their parents don’t travel abroad, there are no technical facilities or libraries in their schools. Their parents are less educated. These factors accumulate to produce a situation that by the time they go into the job market, members of the disadvantaged sections of the society cannot compete on an equal footing with members who are more privileged. How will this situation change?

Affirmative action reverse discriminates by compensating for the disadvantage and discrimination that an individual from marginalized communities faces in many spheres of life. It compensates them in a certain way, in a small way, not in all social contexts of stigmatization, discrimination, etc. But at least, in the limited sphere of public education and jobs.

LSPR: What kind of evidence and research exists with respect to providing reservation to tribals? Can a case be made that developmental outcomes improve as a result of reservation for tribals from past studies?

Yes, but the reason there is a difference in analyzing reservations for tribals compared to OBCs or SCs is the presence of the Fifth and Sixth Schedules and Forest Rights Act which form a huge part of the protective apparatus that is meant to guard and protect the tribal ways of life, and tribal autonomy. Therefore, a simple comparison between education or job indicators is not the correct way to go about it. One really needs to understand the Fifth and Sixth Schedules. You do not have something comparable for Dalits because they are not geographically isolated. Within every village, there might be a Dalit basti, but Dalits are at the bottommost rung of the Hindu caste society. Tribals, on the other hand, are often distinct from the Hindu caste society. Many of them are Hindus, they practice Hinduism as their religion.

Also, there are many tribes, not considered Scheduled Tribes, that are not given reservation. That is why I think if you want to look at tribals, looking at reservations in jobs and education alone is just a tiny part of the whole story.

LSPR: The judgement includes some observations about revising the reservation lists because the benefits of reservation policy are being cornered by the most affluent classes among the reserved communities. Numerous social justice activists have said that this betrays a resentment towards affirmative action. What are your thoughts on these observations generally? How do you think affirmative action policies can be ‘redesigned’ better to serve their objectives?

On the question of rethinking affirmative action, I think we need to understand the objective or the purpose behind reservations. We need to remember that it was an idea to make social and economic opportunities more accessible for historically disadvantaged communities. In addition to economic backwardness, there is a huge dimension of social stigmatization, which is one of the key reasons for affirmative action.

Some say that income mitigates the stigma attached to one’s ascribed identity. If that were the case, it would have been a completely different paradigm. We are living in an age where widespread public protests are happening in the United States against police brutality and the murder of George Floyd. It has become very clear that George Floyd was not poor, but he belonged to a certain race that the prejudicial law enforcement system stereotypes as ‘criminal’. The point is that once you are black, you are black, regardless of whether you are poor or rich. It is an immutable social identity and an axis of discrimination.

There is a famous story about Oprah Winfrey and her visit to a high-end boutique in Paris. Oprah Winfrey is one of the richest individuals in the world, and she is widely recognised in America because she is such a big celebrity. But in Paris, when she went to this boutique, the saleswoman didn’t recognise her. What she saw was a black customer. So, when Oprah asked for a particular handbag, the saleswoman’s response was something like, “Oh, it’s very expensive.” She did not realize that Oprah could have bought the entire shop and all the shops down that road several times!

That’s how stereotyping and discrimination works: all that the saleswoman could see was a black woman demanding an expensive purse, and even if she looked rich, how rich could she be, right? I’m not saying this is a case of atrocity, but it demonstrates the point that in the case of communities which are highly stigmatized, income does not ameliorate societal disadvantages and prejudices. Moreover, there is no evidence that income removes stigma.

So, when we talk about the creamy layer in the context of the Scheduled Castes and the Scheduled Tribes, I think we need to seek evidence which indicates that individuals from these communities are not stigmatised when they rise up on the income scale. There is no evidence of that, whereas, in the case of the OBCs, the reason that it’s okay to have a creamy layer exclusion is that the basis of the reservation is economic backwardness, not stigma. For Dalits and Adivasis, it is not just economic marginalization, they are battling stigma and discrimination that even the so-called “creamy layer” of these groups continues to face.

Prannv Dhawan is a IV Year BA.LLB (Hons.) Student at NLSIU Bangalore. Ishaan Bansal is student of Ashoka University and researcher at the Centre for Economic Data and Analysis. This interview was conducted on June 2, 2020.