John Rawl Theory and Reservation

By – Abhishek Kaushal [1]

Introduction

In the general point of view, while reservations intend to making better the educational and social condition of the backward classes, John Rawl concentrates on the economic classes and is broadly related with distribution of wealth and income.

The allocation of economic assets, according to Rawls, is decided by an individual’s social standing. The primary distribution of assets throughout time is mostly controlled by social and environmental circumstances. The current wealth and income distribution is the result of previous distributions of natural assets.[2]

John Rawl does not believe in an absolute concept of equality and while glancing at the role of justice he concedes that some amount of injustice is tolerable if used to avoid a greater injustice.[3]

He proposes a shift from formal equality to a fair equality of opportunity, he theorizes within the liberal democratic paradigm and does not ignore the necessity of individual rights.

Analysis of John Rawl Theory

With his theory, Rawls aims to provide an alternative to the Utilitarian Model of “greatest good for the greatest number”.[4] While fundamentally opposing the Utilitarian model, he is of the view that the model fails to consider the need of individual people and the difference between an individual and a group of persons. Under this model, it would be acceptable if the liberties of few people are confiscated in order to increase the total advantage to the society.

He believes that plurality and uniqueness of a person. A just society will not subject right of an individual to the “calculus of social interests”.[5] He argues that:

“Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others”. [6]

Rawls formulates two principles of justice

  • Equal basic liberties

Through this principle, he propounds that:

“Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all”. [7]

According this principle, political rights such as “the right of vote, and free assembly, freedom of speech, religious liberty, liberty of conscience, freedom of thinking, psychological oppression, dismemberment, and physical attack; freedom from seizure, detention; and the right to possess personal property” as established by the rule of law are among the basic liberties. [8] People according to this principle wouldn’t trade of our fundamental liberties for any economic advantages.

  • Social economic inequalities

According to second principle:

“Social and economic inequalities are to be arranged so that they are both, reasonably expected to be to everyone’s advantage, and attached to positions and offices open to all”. [9]

Permissible social and economic inequalities shall only be those which benefit the least well off. He does not reject all kind of inequalities in wealth and income, ergo allowing certain amount of inequality.

But the test for such inequalities shall be, he opines, that they work to the benefit of every one including those or as he specifies the principle, especially those at the bottom.

This principle of justice is the preface to another pertinent idea of his, “fair equality of opportunity”, They need to be set up in a certain way, everyone has an equal chance of achieving them.[10]

While further explaining the principles, John Rawl states:

“These principles primarily apply, as I have said, to the basic structure of society and govern the assignment of rights and duties and regulate the distribution of social and economic advantages… The second principle applies, in the first approximation, to the distribution of income and wealth and to the design of organizations that make use of differences in authority and responsibility. While the distribution of wealth and income need not be equal, it must be to everyone’s advantage, and at the same time, positions of authority and responsibility must be accessible to all”.[11]

Although John Rawl proposes a shift from formal equality to a more substantive form of equality, he acknowledges the notion that in certain situations, inequality will be inevitable. However, John Rawl also rejects absolute equality. Under the system of formal equality, people having similar levels of abilities and skills and those who have similar willingness to use these abilities and skills, must have a similar chance of success. However, the concept makes the assumption that every person has an “equal start” in life, that every person started from the starting point and thus they have equal opportunity of success. On the other hand, the concept of equality of result is opposed to the meritocratic notions. It focusses on the outcome or end result, but does not take into account the role of talents and abilities in attaining positions.

John Rawl presents an idea of fair equality of opportunity that considers the primary cultural and social handicaps of an individual. John Rawl bases his theory on the point that the issue of genetic lottery and the arbitrariness of birth take away the possibility of individuals to have an “equal start in life” and that being born in a particular cultural and social stratum will determine the skill and abilities that a person develops and the ultimate opportunities he will have access to.[12]

Considering the aforesaid situation, John Rawl propounds the liberal principle of equality that tackles the root of the issue and recognizes that the primary distribution of resources depends upon the social and natural contingencies. The principal aim is to nullify these cultural and social defects that a person is under because he took birth in certain social stratum and provide everyone with an “equal start” so that a person’s social position does not restrict him/her in reaching the open positions and posts. If two equally ambitious individuals intend to attain a specific goal, then fair equality tries to ensure that the fact that one belongs to a socially disfavored group or is born to uneducated parents, does not restrict their path to attain such goal. Therefore, fair equality of opportunity is the ground for giving preferential treatment to disadvantaged classes.

Politics of reservation

The need for reservation was first seen in South Indian regions when people protested against the monopoly of Brahmins in the government positions services. These included administrative office falling under the then princely states. The lower castes were marginalized not only because they were educationally backward but also because of their lower status in society which was formulated on the idea of them being impure and the higher castes being the embodiment of purity. The Hindu community in India was characterized by a classified inequality based on ritual purity with the Brahmins who occupied the highest position in the hierarchical level. This notion was determined and based upon the kind of work and jobs that were performed by every caste. However, even after dissolution of division of labor upon caste began, the labels of ritual impurity and purity remained fastened to the castes. These labels determine and regulate several facets of social life. The immobile and fixed caste structure made sure that the educational and social backwardness was passed on to coming generations.

Brahmins were given preference as much as for the high rate of literacy among them.[13] The British administration also preferred hiring Brahmins as candidates with the necessary educational qualifications were to be found more easily among the Brahmins than among other castes. Thus, the Brahmins furnished with the skills, education and other strength they had gathered from centuries, delineated a major chunk of the government jobs for their own personal consumption.

As a person’s caste was decided by birth, his initial endowment of resources was simply arbitrary. As a result, his chances of attaining formal education, skills and qualifications that are needed for the various posts largely depended on the family he was born into. It is this natural lottery that the Rawlsian theory of equality and justice tries to mitigate.

In India, special treatment takes the form of compensatory discrimination, i.e., those who are in an educationally and socially disadvantageous situation because of the discrimination faced in the past, are provided with particular benefits in order to compensate for the past discrimination, so that these people might move towards a level playing field. This process first started in the early 20th century, specifically in the year 1920 when a total of 28 seats out of 65 of the non – Muslim seats for the non – Brahmins in the Madras legislature.[14]  The reservation criteria which was restricted to the revenue department in the government till then got extended to all departments of government after the First Communal Award of 1921.[15] However, the hard work put in for having a national or an All-India policy of reservation was not fruitful in the era before independence. Such policy was only made possible after independence, when The Constitution of Indian was framed. Articles 330 and 332 of the Constitution of India, 1950 put a duty on the State to reserve seats for ST&SC in the parliament. Articles 15(4)[16], 16(4) and (4A) [17] explicitly permit the State to afford special treatment to the people belonging to Scheduled Castes and Scheduled Tribes. Ergo, the Constitution allows for three types of preferential treatments- preferential treatment with respect to welfare and education, preferential employment and preferential electoral representation. Further, Article 46 lays down:

“The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

In “P.A. Inamdar v. State of Maharashtra”,[18] “Islamic Academy of Education v. State of Karnataka”, [19] and “T.M.A. Pai Foundation v. State of Karnataka”,[20] Apex Court had held that the State cannot reserve seats in private educational institutions. To negate these decisions, Parliament added clause (5) in Article 15 by the Constitution “(Ninety – Third Amendment) Act, 2005.”

John Rawl’s idea of equality is no different from the equality of opportunity that the constitutional framers believed in. Hence, what the concept of reservation does is it recognizes the initial social and educational handicaps that affect a certain category of persons and which causes them to occupy a disadvantageous position in society, and moves away from the standard procedure of meritocratic selection as demanded by formal equality in order to ensure fair equality.

John Rawl stops short of proposing a complete eradication of all inequalities. He states that:

“The basic structure can be arranged so that these contingencies work for the good of the least fortunate. Thus, we are led to the difference principle if we wish to set up the social system so that no one gains or losses from his arbitrary place in the distribution of natural assets or his initial position in society without giving or receiving compensating advantages in return.” [21]

The Difference Principle, is grounded in the assumption that a person is not the sole proprietor of the natural advantages that he is vested with. He is merely the guardian of these abilities and capacities that happen to reside in him and hence has no exclusive right over them. Since the natural distribution is simply arbitrary, in a just and fair society men agree to share each other’s fate. Rawls while explaining the principle states:[22]

“According to the difference principle, it is justifiable only if the difference in expectation is to the advantage of the representative man who is worse off, in this case the representative unskilled worker. The inequality in expectation is permissible only if lowering it would make the working class even more worse off.”

Appointing a supervisor with a bigger chuck of income in comparison of rest of the employees who were operating under his office is justified even when everyone of them had contributed the same amount of work and put in the same amount of effort, if and only if, by giving an equal authority and equal chunk to every employee, the chunk of each employee is lower in comparison to the previous unequal position. However, higher education and socialization of certain sections in Indian society do not aid the less advantaged classes in any way. The rewards of civilization that lower classes receive are not increased as a result of this inequality.

Secondly, reservations arrange the inequalities in a way that benefits the least advantaged. The lower classes that have been marginalized due to historical discrimination are given a preferential treatment in order to create a level playing field. Although reservation doesn’t remove the actually inequalities, it rearranges them to afford a fair equality of opportunity to the lower sections.

Another fundamental element of John Rawl theory is the “Veil of Ignorance”, it can be perused for the verification the justness of a society. While making a decision regarding the principles of justice the parties must be behind a Veil of Ignorance. They are unaware of facts like their position or status in society, or what talents and abilities will be endowed upon them. The notion in the backdrop of this principle is that since an individual is unenlightened of the fact that whether he belongs to the commonality or aristocracy, there is no way for him to elect a concept of justice that benefit him specifically, thus the concept of justice elected in this position is accurately just and fair for the whole society.

Therefore, here the problem emerges that will the reservation system be selected by an individual behind this imaginary Veil. If he chooses a society without reservation, as a high caste he has no special benefits. But he will be at a great loss if he belongs to lower caste. On the other hand, in a society providing reservation, as a high caste he doesn’t put up with any significant loss, but as a low caste he stands to advantage to a great extent in comparison to without reservation. The person behind the Veil is almost certain to choose a social arrangement that allows for reserving. The politicization of caste is one of the key causes for the reservation policy’s transformation from one that seeks to indorse equality to one that seeks to defend social hierarchies and inequities.

Contextualizing the Reservation Policy

The most pertinent rule in politics for gaining support among vast population is to fully utilize the organizations and institution where this population is found. It has been rightly put that, “Politics is a competitive enterprise, its purpose is the acquisition of power for the realization of certain goals, and its process is one of identifying and manipulating existing and emerging allegiances in order to mobilize and consolidate positions”.[23] All over India, it can be found that the caste system has clearly defined hierarchies with provides the political parties with already made groups which they can target. Hence, politicians have found it comfortable and benefitting to manage their political system on the grounds of this caste framework rather than putting effort to eliminate it. Ram Manohar Lohia was one of the first politicians to intertwine his political campaigns and caste on a large scale. He benefitted from the unjust land tenure system of Bihar which was the source of generations of exploitation of the landless peasantry. [24]

The position in southern Indian was very similar. Political parties like the Dravida Munnetra Kazhagham (“DMK”) in Tamil Nade came to power with the goal to eliminate this caste system, but instead they strengthened the system further by doing politics on the basis of class (“varna”) and caste (“jati”). By increasing the amount of reservation without any restriction by extending these reservations to more castes, the political parties have corrupted the reservation policy as more reservations would simply mean bigger vote bank. Today our society has become more fragmented as the quantum of reserved seats has increased; due to creation of various categories of classes, for instance, Depressed Backward Classes, Intermediate Backward Classes, Most Backward Classes and Other Backward Classes. Article 340 was used by the government for setting up of Commission for investigation of conditions backward classes. The Kaka Kalekar Commission of, the first commission then created, listed that a total of 52% of country’s population deserved State’s protection on them being of low caste or of tribal origins. The commission also recommended up to 50% reservations in government services and about a total of 70% reservations in technical and medical colleges.[25] This report was rejected by the central government.

The Second Commission was the Mandal Commission, they recommended an increase in reservations in public sector. The Mandal Commission Report recommended addition quota of 22.5% for SCs and STs, plus 27% quotas for OBCs. It also listed a total of 3743 OBCs that amounted to 54.4% of their population in the country. It was held to be biased, unequal, anti – meritorian and unconstitutional. At the end, the intention behind the creation of that commission was just to expand vote bank of the parties.

But it should be noticed that “Article 338B was inserted in the Constitution by the Constitution (One Hundred and Second Amendment) Act, 2018”. This article establishes the National Commission for Recessive Classes, which will serve the educationally and socially backward classes.

Conclusion

The notion of reservation, which is based on the ideals of fairness, equality, and justice, and the reservation policy produced by the Indian political system are at odds. From the John Rawl perspective, the concept of reservation aims at minimizing and eventually eliminating the historical social inequalities and attempts to provide every individual with same “equal start in life”. Looking at it the other way, Indian reservation policy intends to preserve the social hierarchies based on caste and inequalities, to make certain that the political leader have a great vote bank. So therefore, the real question rises that, have the backward classes amidst of the caste politics really benefitted from this process? While, the lack of adequate laws for reservation in the in first decade of 21st century, there has been a significant development in legislations. For instance, With the enactment of “The Rights of Persons with Disabilities Act, 2016”, “Articles 15(6) and 16(6) were inserted by the Constitution (One Hundred and Third Amendment) Act, 2019” which give the power to the government to make special provisions for economical weaker section (“EWS”) of society. From the above, it is clear that there has been slight improvement in the second decade.

Although the Constitution envisaged a time-bound reservation policy, considering John Rawl notions of justice and equity, it is believed that instead of hypocritically extending the time-limit every ten years reservations and other forms of affirmative action should continue as long as social inequality exists. But will inequality be eliminated? That is a difficult question to answer.

References

  1. 3rd year student, B.B.A. LL.B., Delhi Metropolitan Education, Noida (Uttar Pradesh)
  2. John Rawl, A Theory of Justice 62 (Harvard University Press, Cambridge, Rev. Ed., 1971).
  3. Supra, note 1 at 4.
  4. Supra, note 1 at 22.
  5. Supra, note 1 at 4.
  6. Supra, note 1 at 3.
  7. Supra, note 1 at 53.
  8. Id.
  9. Id.
  10. Sameer Pandit, “Marginalization and Reservation in India: Analysis in The Light Of Rawlsian Theories Of Justice And Equality” 1 Socio-Legal Rev. 40 (2005).
  11. Supra, note 1 at 53.
  12. Supra, note 9 at 44.
  13. P Chopra, The Reservation policy: An Overview in V.A. PAI PANANDIKER, Ed. THE POLITICS OF BACKWARDNESS 13 (1997).
  14. S Prakash, Reservation Policy for Other Backward Classes: Problems and Perspectives in V.A. PAI PANANDIKER, Ed. THE POLITICS OF BACKWARDNESS 13 (1997).
  15. Supra, note 13 at 41.
  16. Clause (4) was added by the Constitution (First Amendment) Act, 1951 as a result of the landmark case of State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
  17. This article was inserted by the Constitution (Seventy – Seventh Amendment) Act, 1995 to nullify the point ‘no reservation in promotion’
  18. (2005) 6 SCC 537.
  19. (2003) 6 SCC 697.
  20. (2002) 8 SCC 481.
  21. Supra, note 1 at 87.
  22. Supra, note 1 at 68.
  23. R. Kothari, Caste in Indian Politics 4 (1995).
  24. Supra, note 12 at 17.
  25. S. Maheshwari, The Mandal Commission and Mandalisation: A Critique 116 (1991).

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