An Equal State

DOUBLE, DOUBLE TOIL and trouble;/ Fire burn and cauldron bubble,” say the witches in Shakespeare’s Macbeth. Their ominous words may as well apply to India’s overflowing caste cauldron. For it is a boiling pot which every political party and interested group keeps feeding with newer noxious ingredients. And before each election, the boiling pot becomes the proverbial potboiler too.

As when last Friday, November 17, the Punjab and Haryana High Court struck down the Haryana State Employment of Local Candidates Act (HSELCA). Passed by the Haryana Assembly in 2020 and approved by the governor in 2021, the Act had become a law guaranteeing 75 per cent reservations to local candidates in private sector jobs paying up to `30,000 a month.

The law was stayed by a slew of petitions by alarmed private industry and corporate groups, including several Gurugram multinationals. They feared that they would lose their competitive and productive edge if they had to comply with such a coercive measure. Now that the law has been repealed, they must be breathing a sigh of relief.

But for how long? Most likely, this will not be the end of HSELCA. Looking to next year’s elections, the Manohar Lal Khattar-Dushyant Chautala Bharatiya Janata Party-Jannayak Janta Party coalition is likely to challenge its repeal in the Supreme Court. What is worse, sooner or later, more states will also demand the extension of reservations to the private sector.

As I argued in my article on the Maratha quota agitation, “Reservation is now India’s new caste system”. Far from the initial push of reforming or compensating for caste discrimination against the most deprived sections of our society, the Schedule Castes and Tribes, the reservation system has been infiltrated and taken over by powerful castes and communities considerably higher in the social hierarchy.

These include Marathas, Jats, Patels, Yadavs, Lingayats, Reddys, and their like. Communities that are not only numerically powerful and politically well-organised, but who control land, money, and other resources. All in the name of being backward. Mirror, mirror on the wall, who’s the most backward of them all—is the question that we as a society seem to be asking. All in the game of extracting more and more benefits from the state.

What, then, is the way out of India’s caste and quota conundrum? In my last two columns, “Caste Aspersions” and “Who’s Afraid of Sundar Iyer?” , I delved into the controversial advance and eventual veto of California Senate Bill 403. I thought it was important for Indians back home to know more about the struggle against SB-403 because there was much that the mother country might learn in this—as in other matters— from its progressive diaspora.

This is hardly surprising because, as I have shown in my academic work, diasporas shape homelands as much as they are themselves shaped by their countries of origin. Similarly, in our struggle against the stigma of caste, I would argue that we have much to learn and glean from California’s experience. In fact, India’s agony over caste is much worse and much more serious than California’s.

What with Bihar’s recent caste census and the inevitable, if creeping, advance of reservations to an excess of the 50 per cent ceiling mandated by the Supreme Court. Demands for reservations not only for Other Backward Classes, but for numerically and politically powerful communities have begun to resemble the very caste system that they were institutionalised to reform.

SB-403, promoted by Aisha Wahab, would have specifically added caste to other prohibited grounds of discrimination. Those opposing the Bill considered it as targeting Indians and Hindus, thus being discriminatory rather than anti-discriminatory. In fact, a broad range of Hindu groups, including the Ambedkar Phule Network of American Dalits and Bahujans, campaigned against what they considered a Hinduphobic Bill.

California Governor Gavin Newsom vetoed SB-403 because “California already prohibits discrimination based on sex, race, colour, religion, ancestry, national origin, disability, gender identity, sexual orientation, and other characteristics, and state law specifies that these civil rights protections shall be liberally construed.” Newsom’s veto was based on one simple fact: “Because discrimination based on caste is already prohibited under these existing categories, this Bill is unnecessary.”

The pushback against SB-403 was successful because it was seen as Hinduphobic and anti-Indian. Those promoting the legislation included a coalition of woke leftists, Islamists, Khalistanis, and other anti-India actors, quite easy to identify. How many in India would dare to say that those promoting reservations on the basis of caste, religion, region, language, domicile, or other such markers are also Hinduphobic and anti-Indian?

In California, caste is impossible to determine. One of the weaknesses of SB-403 was that it was based on self-identification. To prove discrimination, the victim would also have to ascribe an upper caste identity to their so-called oppressor. Anyone perceived as upper-caste would thus be vulnerable to an anti-discrimination lawsuit by anyone self-identifying as Dalit. In India, caste is state-certified. That, indeed, is a major problem. But that is where the way out of the stranglehold of reservations also lies. If the state stopped issuing caste certificates, caste would come to be socially and economically regulated, not state-controlled.

We have seen that never-ending reservations and quotas by birth unto perpetuity are nothing if not a distorted reinvention of the caste system. But what is the remedy? It is, I would argue, the Indian Constitution itself. We can return to the foundational text of our republic to strike a fundamental blow against the malaise of reservations. How? Simply by taking a leaf out of California Governor Newsom’s playbook. He asserted in his veto that the prohibition against caste discrimination already exists in California. So does it in the Indian Constitution. In articles 14, 15, and 16.

Article 14, “Equality before law,” says “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 15, which follows, is even more specific. If Article 14 is about equality and protection before the law in any part of India, Article 15 prohibits discrimination against any citizen “on grounds of religion, race, caste, sex or place of birth.” It states: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Article 16 guarantees equality in employment, specifically prohibiting discrimination against anyone based on their identity: “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” and “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

Where, we might therefore ask, did we go wrong? When the existing protections and prohibitions already assure all citizens of equality before the law and equal opportunities?

Sadly, the Indian Constitution is a self-contradictory document. What it gives with one hand, it takes away with another. For instance, Article 14 also states, “Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” Similarly, when it comes to Article 15, the Constitution adds the caveat, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

This is how the Pandora’s box of competitive backwardness is opened. Has the time come to put a lid on this jar of curses? Unfortunately, once the jar is opened, it cannot be closed. But even in the original Hesiod myth, one thing still remains in the box. Hope.

The hope for India lies in realising a powerful and transformative truth. The way to end inequality is not never-ending positive discrimination. It is simply to end negative discrimination, giving all citizens their Constitutionally guaranteed equality of opportunity.

Fair, transparent, and accountable systems, backed by responsible governance, are the way forward. Nothing more needs to be done. No tinkering, appeasement, or political manipulation. The new republic demands a return to the foundational principles of the Constitution, not to endless additions of “special provisions” favouring some special interest group or other.

A state, hijacked and held to ransom by special interests, can never be a fair broker or arbiter of equity. Its only business is to ensure that all citizens are treated equally. To wake up to and willingly embrace this fact would be the true marker of India’s modernity and coming of age. It would be the real proof of our decolonisation and emergence out of subjection.

Indian caste systemIndian ConstitutionIndian societyreservationsSundar Iyer