Book review: Abhinav Chandrachud,These Seats Are Reserved: Caste,Quotas and the Constitution of India

Critics of affirmative action often associate their arguments with nationhood consolidation and the establishment of a shared common identity and sense of belonging. In contrast, the advocates of affirmative action politicise this differently and argue that there is a socially-grounded inconsistency between ‘formal’ equality of opportunity and the underlying practices of humiliation based on caste, gender and religion. The demand for special representations or treatment has always remained a contentious issue in colonial and post-colonial Indian states. How did classifying disadvantaged groups come into being? What are the ways in which backwardness has been defined and identified? What will happen to a caste status when an individual converts from Hindu to non-Hindu religion? Moreover, how does the Supreme Court of India grapple with the question of ‘exception to the principle of equality of opportunity’?

Chandrachud addresses many of these questions concerning the nature of preferential treatment, notably reservations. He discusses the stigma of untouchability associated with depressed classes in British India straight away in chapter 1 (p. 6). He observes that backwardness based on illiteracy and poverty does not qualify individuals to be part of depressed classes (p. 8) while, unlike religious affiliation, social considerations and untouchability criteria became a ‘necessary’ condition for depressed class membership (p. 9). The preferential consideration emerged from the concrete context to enable a certain category of backward people to represent their concerns and secure their presence in legislative assemblies, public offices and educational institutions. However, over time this mushroomed into something much bigger.

Chapter 2 traces the emergence of categories like Backward Classes and Other Backward Classes (OBC) through the lens of the historical-legal and Non-Brahmin movements in the early twentieth century (p. 19). To concretise the opportunity, the prince of Kolhapur, Shahu Maharaj, passed a resolution on 26 July 1902 that 50% of seats in his administration would be reserved for the backward classes (p. 25). A similar reduction in Brahmin representation in government offices was made in 1920 by the Justice Party in Madras Province and by the Mysore government in 1921 (pp. 27–9). The identification and identity of Backward classes in Kolhapur, Madras and Mysore were primarily defined by the criterion of being ‘other than Brahmin’. While the term ‘backward classes’ systematically included untouchable castes and aboriginal and hill tribes, the expression of ‘other’ in backward classes did not acquire full-fledged definition under the colonial government, which did not lay down any strict criteria to determine who are the OBCs (p. 30).

Chapter 3 explores Ambedkar’s proposed set of formulas and principles for affirmative action. To defend the representation through reservations, Ambedkar argued that reservation is an exception to the principle of equality of opportunity and should be restricted to a minority of seats (p. 34). The idea of minority and their rights in Ambedkar’s thought is strongly coherent with the actual social and political weight. For him, ex-untouchables or scheduled castes belong to special minority groups. Even at the round table conferences (1930–1932), he did not accept the notion of ‘numerical’ as the only criterion for determining a minority group. His principle was that social standing or social discrimination is the real test for determining a minority group. Another dimension of reservation was ‘adequacy of representation’ (p. 38). The term ‘adequate’, rather than ‘proportionate’, is an essential criterion to determine the representation of minorities (p. 39). However, the framers of the constitution used the words ‘not adequately represented in the services under the State’ in Article 16(4) of the constitution (pp. 39–40). Chandrachud argues that despite the absence of the term ‘backward class’ in the article, the framers of the constitution intended to extend reservation to the backward communities regardless of how numerically large they might be (p. 40).

Chandrachud uses chapter 4 to discuss how the Supreme Court held caste-based reservations in educational institution unconstitutional in the case of State of Madras v. Champakam Dorairajan in 1951. Also, in the same year, the court struck down a particular communal government order in the case of Venkataramana v. State of Madras (pp. 54–6). These two judgments led the Nehru government to insert a new provision into the constitution, found in Article 15(4), which allows the state to make ‘special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes’ (p. 58). This opened the door for later expansions of the heavily contested OBC category. Chandrachud also points out that though the Kaka Kalelkar Commission on Backward Classes did not clearly and precisely define the expression of ‘Other’ in OBCs, the commission came up with four criteria for identifying backwardness in terms of low position in the caste hierarchy, lack of education, inadequate representation in public offices and inadequate representations in other sectors like trade, commerce and industry (p. 62).

It is well-known that since the 1960s, the jurisprudence of reservation has been intensely developed by the Supreme Court of India. Chapter 5 (74–91) examines various court cases and committees, including the Mandal Commission, to objectively identify OBCs. In M.R. Balaji v State of Mysore (1963), the Supreme Court held reservations should be ‘within reasonable limit’ (p. 77). However, the court also emphasised that caste cannot be the sole criterion for deciding social backwardness (p. 76). Later, Justice Chinnappa Reddy, in a minority judgment in K.S. Vasanth Kumar v. State of Karnataka (1985), famously attacked the ‘very idea of merit’ (p. 82). The implementation of the Mandal Commission and the important Indra Sawhney case of 1992 were well-known significant contributions to this field, keeping the pot of controversy boiling.

The Indian parliament introduced numerous amendments to overrule decisions made by the Supreme Court in matters involving reservations, showing a lively dialectic interaction between the judiciary and other arms of the state. Chapter 6 (pp. 92–121) covers these tussles between Parliament and Supreme Court regarding the dilution of the 50% rule, reservation in promotion, extension of reservations to the private sector and reservations for economically weaker sections of citizens. The Supreme Court in postcolonial India has also grappled with questions of caste status in the context of marriage, conversion and migration. Chapter 7 (pp. 122–34) discusses various judgements regarding the ongoing discussions on the complex body of law concerning loss or retention of caste status. Clearly, such issues link not only to identity, but to potential affirmative action benefits.

In India, affirmative action policies have been fundamental in shaping the contemporary situation of Dalits, Tribals and OBCs. In fact, social justice has been the primary principle, while reservation policies have provided the substantive legal justifications behind India’s affirmative action policies. It is still the basic principle that affirmative action should help to create a social environment where socially disadvantaged groups can achieve fair and equitable recognition for their educational and social accomplishments. Chandrachud’s book demystifies and unravels these intricate concepts of affirmative action policies and makes them accessible for a wider readership, even though the book itself says nothing that is really new.