Transgressing Caste Indignities through Reservation in Education: Debunking Myths on Systemic Equity and Fairness in India
|01 January 2015
|01 January 2015
Transgressing Caste Indignities
Asian Journal of Legal Education
through Reservation in Education:
© 2015 The West Bengal National
University of Juridical Sciences
Debunking Myths on Systemic
Equity and Fairness in India
The sociological and political issues of caste and the rule of law in the annihilation of its victims continue
to be the reasons behind a surge of scholarly literature that has existed within the domains of public
The researcher seeks to explore Amartya Sen’s conversion handicap thesis in the context of
reservation strictly in higher education, followed by a brief relevance of Nussbaum’s human rights
perspective in light of India’s international obligations as signatory and ratifier of the International
Convention on the Elimination of all forms of Racial Discrimination (ICERD) as well as the Inter-
national Covenant on Civil and Political Rights (ICCPR), in 1979. This section makes way for an empirical
enquiry into the failure of the governance initiatives towards capability building, by governance initiatives
failing to provide for the gradual introduction of these communities into the social mainstream. The
second section shall examine how the design and the model of implementation of the present reser-
vation system fail to provide for adequate social justice. The third and final section shall sum up the
major fronts where the government initiatives at ensuring substantive equality have failed, with a con-
clusion speaking about possible alternatives. The very purpose of this article is to debunk certain myths
about the equity and as the degrees of equality that exist within the current reservation regime and the
average disadvantage that a scheduled member faces today.
Introduction: Deconstructing the Current Policy Regime in India
Issues surrounding caste intricacies and related policy initiatives have been the central theme of
long-standing argumentative discourse in India, with several lines of argument being propounded in
favour of increasing the percentage of seats reserved in public educational institutions in this country,
in order to compensate, to whatever degree possible, for the atrocious human rights violations against
an average member of the scheduled community, even today.2 While the Justice Punnaiah Commission
1 LL.B student at NALSAR, India.
2 Ranjit Sau, Reservations and Minorities, 35(4) Econ Polit WEEkly 4158–288 (2000).
Devarshi Mukhopadhyay is LL.B student at NALSAR, India.
India Quarterly, 66, 2 (2010): 133–149
Asian Journal of Legal Education 2(1)
Report3 and other national as well as international non-governmental organizations provide a sound
empirical basis for attaching adequate weightage to the existence and rampant practice of caste
indignities even in contemporary times,4 what becomes fundamental to the future of policymaking in this
country, in its bid to achieve social justice, is to acknowledge that there are multiple, cross-cutting and
overlapping issues which are tied to the sources of inequality in educational opportunities.5 While on one
hand, the combination of academic merit and social disadvantage poses a sufficient logistical and moral
impediment (in terms of their respective percentages and individual components in computing scores6),
the moral obligation to extend affirmative action to the educational sector cannot be ignored.7 In fact,
even while recognizing and acknowledging the merit of such an argument,8 issues related to subjected
personhoods9 as well as the existent patterns of socialization and sanskritization10 overlook the deeper
problems of a loss of agency and orientation for an average member of the scheduled community,
prolonging their existence as the subaltern.11 This article seeks to explore, through the eyes of policy
and governance, the implications and basis for such continuing social poverty figures, in a bid to debunk
what our existent reservation policy calls fair and equitable.12 As a rough approximation of empiri-
cal records, 510,000 scheduled caste (SC) and 180,000 scheduled tribe (ST) students were enrolled in
the 5-year period ranging 1995–2000. Consequently, a third of SC students and a fifth of ST student
applicants were enrolled in educational universities and programmes of their choice for the period
extending from 2001 to 2010.13
The Birth of the Conversion Handicap: Nesfield, Nussbaum,
Spivak and the Hegemonic Structures of Opportunities in India
J.C. Nesfield, in an 1881 survey of caste structures of the northern part of India, describes poignantly
how the fundamental basis of social hierarchy in India was determined by occupation, which derived its
existence from birth itself.14 He lays down an important proposition that despite there being numerous
ways in which a mere possibility did exist of those at the bottom of the social stratum being able to move
up the structure of hierarchy, it hardly did ever concretize into an element of reality.15 Additionally,
Gayatri Spivak, in her subaltern thesis, stresses on the need to adopt a policy of inclusion, in the context
of the subaltern (letting the subaltern speak) and ancillary social justice policies.16 It is important, for the
3 Annual Report on the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for the year 2005.
5 A.R. Vasavi, Case Indignities and Subjected Personhoods, 41(6) Econ Polit WEEkly 2012–17 (2004).
6 G.S. GhuryE, caStE and racE in india 81 (Popular Prakashan, Bombay 2013).
7 JuSticE V.r. kriShna iyEr, thE dalit FuturE 67–86 (B.R. Publishing House 1990).
8 dr. G. PrakaSam, Social SEParatiSm 58 (Rawat Publications 1998).
9 Supra note 4.
11 SukhadEo thorat, caStE, racE and diScrimination 101–02 (Rawat Press 2004).
12 Sebastian Morris, OBC Reservations in Higher Education: Are They Worth the Turmoil? 41(26) Econ Polit WEEkly 2703
13 Supra note 20. Also see Annexure 1 to this article.
14 Supra note 7.
16 donna landry & GErald maclEan, thE SPiVak rEadEr (Routledge Publishers 1996).
larger purposes of this article,17 to examine in context, the relevance of both the above-mentioned
If one looks into an empirical data set of the number of prestigious scholarships, grants and positions
of authority held by numerous Indians both within the country and abroad, the fact that these have
always been received/won by members primarily of the higher caste, reinforces the fact of hegemony in
the entire social set-up of opportunities and chances in this great nation of ours.19 The reason as to why
this becomes important for us here is the question of the trickle-down effect of the benefits of reservation
and understanding the origin of the conversion handicap, which, given the current system of reservation,
will not be able to do justice to the social backlog that the backward communities face even today.20
Several critics argue that even if the creamy layer, which is the somewhat economically advanced section
of the other backward class (OBC) community, is a beneficiary of the system of reservation, the fruits of
such a measure will in some way or the other reach the bottom layers as well.21 The argument, in the case
of the scheduled communities however, does not find good ground given the fact that the creamy layer
restriction which has been evolved through judicial precedent, does not apply to these communities,
providing for a situation where the economically empowered sections of these communities, who have
had adequate access to resources, are entitled to the benefits which are provided by the reservation
system.22 The contention of the author in this regard, is that the deeper problem of systemic hegemony is
not only overlooked,23 but also understated by turning the debate into a purely economic one. While
critics in the past have dismissed the scoring system formulated by the Mandal...
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