The will of the people....?

How does one determine the will of the people? I mean, when a legislature states with impunity that it represents the will of the people in a matter that clearly divides the people along ideological lines, can it really be taken at its word?

It is paradoxical at most to state that one represents or is capable of aggregating the will of the people. This flies in the face of the fact that the will of only a sub-section of the people are consulted, and only their views and opinions accorded the respect and attention that should have ideally been accorded to the people as a whole.

India is not a direct democracy. By definition, a direct democracy is one wherein citizens or the demos vote on all major policy decisions. In contrast, India's representative democracy does not empower the people to such an extent. I quote Wikipedia as follows:

A characteristic of representative democracy is that while the representatives are elected by the people, to act in their interest, they retain the freedom to exercise their own judgment as how best to do so.

Essentially, this would mean that although the representatives are elected to represent the people, they are sufficiently empowered to determine on their own as to what constitutes public interest. It is not necessary, but is generally and ideally expected, that such a judgment would approximately mirror the 'will of the people'. That it may not is a definitely accepted possibility, but that would be one that cannot be repudiated.

The Government, shaken after the Supreme Court stayed the reservation process for the OBC communes on technical grounds, has made an appeal that since Parliament had unanimously affirmed the legislation, it represents the will of the people. A Union Minister has even gone to extent of stating that by staying a process affirmed by the 'will of the people', the judiciary has implied that it is 'against the people'. To state that Parliament is infallible just because it is the sole representative arm of the State is to confer too great prerogatives on it.

Any representative arm is susceptible of the allure of interpreting a situation in light of their own biases and prejudices. This is irrespective of whether this interpretation is true of the general populace's viewpoint about the same.

That such an 'erroneous' interpretation may not be challenged would be a severe infringement on the liberties of the people, as it implies that even if a law be bad, it cannot be revoked simply because the legislature had approved it. Agreed that if a bill's provisos are seen and known to be bad, the people can proclaim that they would not approve of it, but what if the legislature sees such a proclamation as not truly representative of the people and insists on its own legitimacy as the sole guardians of public interest?

The concept of judicial review is based on the idea that the Constitution expresses the true will of the people, while the decisions of any particular legislature represent only the shifting, changeable will of that particular legislature. The will of the legislature may not trump the will of the people, as expressed in the Constitution, and therefore laws which violate the Constitution are void—and the judges are the people who decide whether the a law does go that far.

History is replete with examples wherein despite the presence of representative democracies, some of the most heinous crimes have been permitted to take place against the people, that too with the compliance of the legislature.

While I don't think that the reservation policy is a crime against the people, in its current form, it is still an aberration. It needs reform, reform which the Supreme Court has indicated viz. the basis for the caste populace calculation and the adherence to the creamy layer proviso (which would ideally ensure that only the needy get the benefits). A failure to look into these areas would be a transgression against the people for sure. Whether such a policy then truly represents the will of the people needs to be investigated.

Reservation woes...

The Supreme Court has asked the Union Government to put on hold its ambitious and controversial program to increase affirmative action quotas in educational institutions. These quotas increases are mainly aimed at the Other Backward Castes section of Indian society, a section that slipped into the ambit of affirmative action after the Mandal Commission's report being implemented in 1990 by the then incumbent V.P. Singh Government. These communes were then deemed eligible for affirmative action benefits by virtue of them being socially and economically backward, as also because doing so would have been in conformity with the Directive Principles of State Policy. The percentage of seats which would be reserved for members of these communes has been fixed at 27 percent of the total, in keeping with their numeric strength as per the 1931 census.

And that is where the entire policy fell foul of the court. That a policy should be formulated keeping as its basis a census conducted more than 70 years prior has baffled the court, and not without reason. Does the Government wish to insinuate that the quantum of the population belonging to these communes has remained frozen at the same level for over a century? While it is very much possible that the communes might now comprise a reduced percentage of the total populace, and this prospect would be most attractive to those opposing these reservations, it is equally likely that they might now constitute a higher percentage.

This brings us to the main point of this blog. I have always maintained that affirmative action on the basis of commune or creed is largely self-defeating as it rarely if ever addresses the real issues, and risks being monopolized by the more affluent sections of the communes/creeds in question. The standard mode of implementation followed by the Indian state also doesn't allow for much reform on a continuous basis, something that is imperative for an affirmative action program to be deemed to be truly responsive to the needs of the communes whose troubles it wishes to alleviate.

The haste by which the Government was attempting to push this piece of legislation and its inability to answer queries on why the 1931 census and not the more recent 2001, or for that matter, even the 1991 census (in case the 2001 census' computations should still be ongoing) was employed to determine the exact percentage of seats to be reserved under the program proposed somehow suggests that the State was trying to subvert the process of natural justice in its pursuit to be seen as socially aware.

I don't wish to support such a view. The State was being its usual self: plain old incompetent. I mean, it's a cardinal rule that you base your calculations on the most recent data, data which would, logically, be the most accurate approximation to the current situation. Then how could the State mess up so badly?

This blog has always stated its support for affirmative action based on economic considerations. While economics alone cannot be deemed to be enough, by that record, even a communal identity should also not be enough. The case for economics as 'one' of the parameters, and perhaps this being already a part of the system by way of the 'creamy layer' proviso, is strengthened by the fact that while it is accepted that the designated communes do suffer from a systemic bias against them, once a member becomes sufficiently emancipated by way of his financial and social status, the member shouldn't then be able to claim the benefits of affirmative action. Should such a member's offspring, by some quirk of fate, again fall short of the emancipation definition, then the same would become eligible, but not if the same continues on the same level as the parent.

The problem doesn't lie so much with the intention behind the approach, as in the manner in which the issue is sought to be resolved. This is not an issue which can be resolved overnight; reservations or affirmative action cannot be seen as the panacea for the issue. At best, it is one manner of reaching the goal, but it needs to be supplemented with more concrete measures to remove or reduce the institutionalized biases which make coercive measures such as the one proposed by the Government necessary and required. Till such time, reservations are at best a piecemeal alternative, incapable of satiating the hunger of the designated classes for emancipation.

Divisive matters!

This blog has, through its pages, been unequivocal that although reservations for the disadvantaged per se is not a bad idea, identifying the disadvantaged on the basis of commune or faith is a retrograde one, and one that deserves to be sent to no other place but the dustbin. Affirmative action loses its meaning when it becomes a sort of divisive mechanism, pitting people against their compatriots. And this is the danger that India faces today.
The Sachar Commission, appointed by the Prime Minister to evaluate the social, economic, and educational status of Muslims in India, has made its submissions, and from early reports, one comes to the conclusion that Muslims are just one step away from having distinct reservations, or at best reservations within the current scheme for themselves. I scarcely expect that any legislation brought about as a response to this commission's recommendations would stand in the eyes of the judiciary, but then politicians are politicians.
Firstly, that a secular state should differentiate amongst its people on the basis of their faith is a most puzzling irony, and that too when its Constitution affirms through

• Article 14: 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(1): 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(1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Let it be proven that, as in the case of the Scheduled Castes or the Scheduled Tribes, there exists a bias in the minds of recruiters, when it comes to the Muslim commune. If no such bias exists, then the issue cannot be hoped to be resolved merely by reserving seats for them at educational institutions and at organizations under the State. If the commune remains woefully inadequate as regards to education, social status and economic status, then it would be worthwhile to look first at what the commune itself is doing to alleviate its problems, and whether these measures, instituted by the commune, are effective, and display an inherent desire of the commune to improve its lot.
Let this not be seen as a tirade against Muslims. I have always supported reservations, but only when the guiding principle is economic status. That a rich man is capable to getting all facilities made available to him in this modern age, irrespective of his caste or faith, is a given fact. I would not like to believe that all Muslims or rather a majority of Muslims are so deprived that only reservations can provide them succor.

Should there be a bias, then the Constitution provides those afflicted by such a bias a strong weapon, that being

• Article 29(2): No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Moreover, even under the Constitution, reservation was never viewed as an infinite process.

• Article 334 clearly states that reservation of seats in legislative bodies and special representation shall cease to have effect on the expiration of a period of fifty years from the commencement of the Constitution.

So basically what we would end up doing by granting Muslims or any other religious commune reservations solely on the basis of their religion would be to give them temporary crutches, which in no manner whatsoever would alleviate their problems, or resolve their issues. Once a man is given crutches to lean on, and is also made to believe that these crutches are his sole alternative, and without them, he would surely fall, even if his feet were to be able, this man would not be amenable to giving up his crutches.
The basic issue is not so much of ensuring fast development of a commune; it concerns the long-term progress of a people, a people who form an intrinsic part of this nation. Any piecemeal solution to their problems would only go to aggravate matters, only to further deepen the malaise. Let better judgment prevail!

Comments reserved...

The recent furore over the judiciary's reported interference in the sacred duties of the legislature seems rather sad and unfortunate. After all, each has its own assigned jobs and responsibilities in accordance with the Constitution.

But that surely doesn't mean that the judiciary may not intervene when it comes across any instance of the legislature attempting to, either on purpose or inadvertently, contravene the basic tenets of the Constitution. After all, the legislature isn't sacrosanct; it too must be subservient to the law, even if it be the lawmaker itself. And that doesn't mean that the judiciary should also start to scrutinize all and sundry legislations coming out of our 'worthy' legislatures. We already have a 20-year backlog, so let's keep off such political squabbles.

But the current debate merits some discussion. After all, the H'ble Supreme Court of India hasn't said anything wrong. Considering my stand on the reservation issue so far, I have always stated that reservations should be only for those who really deserve them, and not for those who simply are deemed to deserve them on the basis of their communal affiliations. In this country, economic status plays a very important role in how a person goes about his/her life in society. This may seem retrograde, but it is true: money matters. If you have the dough, then you can even make the State change its policies.

In such conditions, that any person who can afford a reasonable avenue of education should avail of reservations seems to me as a most unfortunate occurrence. After all, aren't we defeating the very purpose of reservations? Reservations, in my belief, must have started out as a means to ensure that the poorest of the poor, the most disadvantaged of people have equal access to opportunity. Their inability to conjure up enough capital to finance their dreams and aspirations had hindered their flight hitherto, but the State would ensure that it happened no more.

So, if an individual who can afford a good education should stand competing for reservations vis-à-vis someone who cannot, who, as per all the norms of Reason, all the laws of Logic, should be deemed deserving of assistance? I propose those who cannot.

So, where's the whole quarrel here?

Well, while the OBCs can be divided on grounds of economic status, the SCs/STs, the politicians reckon, cannot, because the 'injustice' that they have borne for centuries cannot be surely wiped out by a single generation's prosperity. No one's saying so. That a father is a millionaire is no guarantee that his wards will also be the same; on the contrary, prodigal descendents often undo all the good that an enterprising ancestor may achieve. But surely this millionaire father shouldn't be eligible for any more benefits so long as he is a millionaire, and surely while he can ensure his children get the best of education, his wards also should be beyond the purview of reservations. If and so his wards should go the way of most children of rich people, then they would be poor, wouldn't they, and hence in the purview of the law.

I am not advocating that once a family has been deemed to have crossed the creamy layer, it should be debarred forever. I am only saying that so long as the family is above the creamy layer, debar it from the benefits, else permit them all that is their due.

But then, why restrict it only to those who fall within some designated community? Open this scheme to all those who should be deemed eligible for these benefits. That way, we can ensure that reservations serve their purpose to the fullest, to the best.

Reservation for women: An appeal in defense

Affirmative action, or in the Indian parlance, reservation, must be comprehended to be not so much as an accusation of inferiority aimed at the intended recipients as much as a desperate attempt by a State, that is obliged to work towards the development of the people, and not just work at that, but also be seen to work, to ensure the aims and objectives of social justice.
Why such aims and objectives necessitate such desperate measures isn’t hard to answer. We are what our society makes us out to be. When social prejudices and biases can derail even the most well-intentioned reform schemes, then how can social justice be achieved? The answer lies through the forceful intervention of the State.

Society contends that each and every member of its fold possesses the sacred right of representation. On the basis of this representation, it then presumes to accord legitimacy to the State. And yet, when such representation fails to echo the true character of the society, choosing instead to mirror the jaundiced and bigoted visions of a few demented sections, can such a representation lay the foundation, a strong one at that, of a legitimate and powerful State? In truth, in a nation of one billion, in the highest legislative body in the country, there exist less than 15 percent female legislators, when the proportion of women in the entire population is nearly half; it speaks volumes of the “representative” nature of the legislature.

And so, the State must assume for itself the right to impose on a generally unwilling society a reformative process to achieve justice and to right all that must be deemed wrong by the laws of natural justice, until such time as when the society comprehends genuinely the need for the said process. Such an enlightened society is capable of executing or rather meeting such egalitarian objectives on its own, without intervention by the State.

It is an important element of affirmative action that merit alone is insufficient. A policy based only on merit would not recognize past - and continuing- injustices that may hinder the realization of their full potential by disadvantaged groups. In many cases, what we see as merit is the product of years of social and economic opportunities, so that those who have not had these opportunities may appear to lack merit.

Women have traditionally been denied access to education, and in effect, to a better and much more empowered lifestyle. That such mentalities are on the wane is a positive sign, and worth applauding, but it is important that we also investigate avenues whence we can empower the woman further. It is not merely a question of empowering members of a specific gender; rather it is of recognizing that an empowered woman implies an empowered family. We have the example of the local self-government bodies, wherein nearly one third of the seats are reserved for women.

A study indicates that women representatives are usually more responsive to their duties, more attuned to the sensitivities of their constituents, and more focused on meeting the core requirements of sanitation, public health, education, water supply, and basic infrastructure. Such representatives also are more amenable to proposals for investments in entrepreneurial ventures, as also for limiting or even eliminating the influence of alcohol and other intoxicants on the family. That doesn't go to say that male representatives are boors, and drunkards; it's just that such empowered women tend to pass the fruits around, rather than hoarding it.

And yet even while we observe all these statistics, we must never lose sight of the fundamental question: Is reservation for women in today’s age justified? My take on this contentious issue is an emphatic ‘yes’.
With all due respect, I do think that India’s women deserve this legislation. Merely the fact women may seem to avail of such reservation to enter the legislatures in no way implies that they aren’t equal to men. On the contrary, when I observe the statistics, I feel that they are more justified, more qualified to be in the legislatures than men. And yet, I cannot bring it upon myself to ignore the urban-rural divide.

Women in urban India are more liberated in the economic sense of the word and perhaps even in the social sense as well. I don’t wish to imply that city women are not restricted like rural women; just that the restrictions are different, and perhaps lesser. Rural India to this day remains a predominantly feudal society, whence the birth of a boy child merits celebration, while that of a girl child means grieving. That this society chooses to deny its girls access to education, basic healthcare, employment opportunities, etc., in my opinion, is one of the primary reasons why rural India remains underdeveloped. Admitted, this situation doesn’t exist in cities. But, on the basis of certain kinds of freedom enjoyed by urban women, it cannot be said that women as a whole have managed to win equality.

Reservation, in any form, for any group, is never, or rather should never be intentioned to last forever. A carte blanche is not my idea of a beneficial proposal for either the women of India or for India per se. But as always the devil lies in the implementation. We must understand that reservation alone also is not the panacea to the problems. We need to create more awareness, and also enlighten our people. An enlightened implementation of the reservation policy may ensure that our society is sensitized to the issues facing the female population as a whole as a result of its prejudices and biases, and as such these prejudices and biases are discarded.

Anger at reservations is common, but such anger may be better channelled when it is targeted at the real problem. The seats that will become subject to State policy on reservation may prove to be miniscule in comparison to the daily deprivations that hundreds of millions of women endure. The simple truth is, reservations on the basis of gender happen far more as a social custom than through state policy. Those reservations of opportunities by custom are the larger phenomena; if we are going to be angry about reservations, we should begin by first attacking those. Only when we have made significant progress in erasing reservations stemming from social customs can we honestly focus on gender equality as a State policy.

Merely because the prevalent reservation policies have been misused is no reason, or justification to deny the State the opportunity to use the same tool for achieving some semblance of gender equality. Misuse is an act of the People, not of the State. A responsible and responsive citizenry will or rather should be able to appreciate that reservation will succeed only when those for whom it is intentioned are the true recipients of its fruits. This appreciation should arise out of a greater realization that the empowerment of the recipients will only lead to an improvement in the general standard of our society. If the political system is seen to misuse the provisions of the policy for their own vested interests, then this responsive citizenry must use its powers and purge the system of such miscreants, whose sole aim is self-gratification. If a certain section of the citizenry is seen to abuse the terms of the policy, then through their representatives, the remaining electorate is entitled to the right to purge the policy of such provisos which are being misused. Whether or not it chooses to exercise these powers and rights is solely its prerogative.

We may be diverting our attention from the meritocracy goal for a moment, but when by the effective and efficient implementation of the reservation policy, we would have in effect eliminated the very need for it, that day, truly we shall be justified in terming our state a meritocracy, not so much a result of the impositions of the State, as the efforts of the People.