Brhat | The Double Helix of Affirmative Action in India

Introduction

There is an ambiguity in the Indian Constitution between the forces of Natural Law (appearing as Fundamental Rights) and the forces of Social Justice (usually appearing as Representational Equality). These two forces have their respective Articles in the Constitution and their respective champions in society, the legislature and in the judiciary. It is the interaction between those two opposing but strangely aligned, progressive forces that has caused the unique corkscrew dynamic that has been set in motion within the Indian Republic.

The impulse towards Natural Law is to be found in the Fundamental Rights - Articles 14, 15, 16 and 29; and the impulse towards Social Justice is to be found in the Directive Principles – Articles 38 and 46 and in the Special Provisions – Article 340, 341, 342 and 342A.

Additionally, Article 13 mandates that any law made that runs counter to the Fundamental Rights should be treated as void. This is why all amendments made to animate the Directive Principles and Special Provisions have been made directly to the Fundamental Rights themselves (otherwise they would be void).

So, contrary to what the layperson believes, the Fundamental Rights are not sacrosanct and, in fact, are some of the most amended sections of the Constitution. These amendments were not all made with a 2/3rd majority, but by governments in the normal course of business using a simple majority. The device was first used by Nehru in the First Amendment and has been used innumerable times since then by all governments. The strategy has been to circumvent the spirit of an Article simply by adding a clause that starts with the words - “Nothing in this article or in clause (X) of article Y shall prevent the State from...”

With this simple trick, governments of all hues have managed to mangle the spirit behind the Fundamental Rights enshrined in the Constitution by the wise members of the Constituent Assembly.

The question that then arises is how the state is supposed to manifest the Social Justice enshrined in the Directive Principles if they are constantly running afoul of the Natural Law enshrined in the Fundamental Rights?

This is not a new problem; it is a problem as old as civilization. Liberty and Equality run counter to each other. Unbridled Liberty leads automatically and naturally to loss of Equality (as seen in Liberal Capitalist societies), and unbridled imposed or incentivized Equality leads automatically and un-naturally to loss of Liberty (as seen in Communist and Woke societies). Classical Bhārata solved this problem through puruṣārtha. But that’s a separate topic.

Contrary to Liberal dogma, the impulse to Social Justice is not a Bolshevik conspiracy but is, in fact, hard-wired into the human psyche since our Hunter-Gatherer days. The bounty acquired by a group is always shared with the entire group. This impulse to “take the group along” is seen widely among forest/nomadic tribes, babies, children and also in the agricultural tribes of India and Africa. Food is always shared, orphans are looked after, charity is widespread within the in-group. Very often the bounty is created by the shared labour of everyone in the group. This phenomenon creates what we today call Community. But equally often, the bounty is created by a select few who then share their skills/wealth with the group in return for Privileges. This phenomenon creates what we today call Hierarchy. When Hierarchy is accepted by people who see that privileges have been rightly earned through sharing, it is called Dharma. When, on the other hand, Hierarchy is demanded by people who have not earned the Privilege through sharing, it is called Adharma (or in modern-speak – Oppression or Matsya Nyaya).

The fundamental, unspoken rules of a stable society are always the same – The clever shall care for the less clever, the strong shall care for the less strong, the rich shall care for the less rich, and the skillful shall care for the less skillful. In return, the less-able support the more-able, and goodness accrues to all. When this works ideally, the more-able do not feel taken advantage of (no resentment), and the less-able do not feel neglected (no resentment). Let us call this model Sahayoga. Whenever this tacit compact is broken, unrest spreads, first in hearts and then in society (in fact, revolutionary ideologies thrive on creating this unrest in previously harmonic societies through propaganda that enters via the mind into the heart and then into society). The traditional Indian social set-up was a remarkable attempt to understand this collective reality and actualize it with the right incentives. It was stable for so long because it fulfilled these criteria and was therefore perceived to be just. No other explanation fits. We can still see it in operation in remote villages.

In Industrial Modernity, this way of looking at the world is sometimes called the frogs-in-the-well syndrome, where frogs in the well refuse to allow any of their fellow frogs to climb up out of the well into “Freedom”. They are always making demands of the more ambitious frogs, forever pulling them down. Only the true leader who can take the entire brood along will be allowed to rise. Industrial Modernity, by “expanding the pie”, destroyed this model of being altogether. Now, every frog was expected to make his/her way out of the collective well individually because so many ladders had been created through industrial surplus.

But ancient psychology dies hard, and there is a deep morality sitting in our collective consciousness that judges the person who runs too fast, leaving others behind (even though the inverse morality of Modernity demands just that).

So, what we have today is a situation where the ancient compact has been broken, Community has been demolished, Hierarchy, whether earned or unearned, has been demonized, and the Individual has been cut afloat and handed only one life jacket - that of personal Liberty.

The Indian State has the unenviable task of

1) protecting the Liberty life-jacket of individuals (who are afloat for no fault of theirs),

2) shepherding Communities yet to find their life-jackets (who are broken for no fault of theirs),

3) answering to the demands of the ancient morality of Sahayoga (which has come apart in reality, but still makes demands of our hearts, leading to the need for centralized distributive equality)

AND

4) controlling the effects of widespread bi-directional resentment (in which society is awash because the ancient compact of Sahayoga can no longer be fulfilled in Modernity)

The reason for all four of these stressors is the coming of Industrial Modernity under the boot of a colonial regime into a previously harmonic traditional set-up.

There is nothing that can be done about this today. The State has to find the solutions to all four of these stressors within the possibilities offered by the Constitution and Industrial Modernity itself.

BUT

The State can start seeing the problem of Modernity clearly.
The State can stop blaming Society/Tradition for its sorry state.
The State can stop pitting one group against another for short-term gains.
The State can work decisively on the Grand National Narrative that will expand our sense of the in-group.
The State can desist from engineering Society.
The State can choose to wield more delicately and with more compassion, the Liberty-Equality corkscrew within Society. Everybody wants Sahayoga. But, Sahayoga requires both the opportunity to naturally create Community through shared labour and the opportunity for Community to decide on internally legitimized Privileges without constantly being bombarded by external colonial propaganda on ‘how they ought to be’.
The State can leave Society alone to re-weave the threads of Sahayoga wherever possible.
The State can determine a time horizon for the roll-back of enforced Representational Equality. Maintaining Representational Equality in perpetuity will require massive centralized State control over Society and will hamstring both individual Liberty as well as the natural inclination of Society to create Sahayoga (key aspects of both free societies as well as Dhārmika societies).
The State must realize that it cannot recreate Sahayoga artificially through centralized means. It can only incentivize it by stepping aside and allowing it to grow within Society while focusing on providing trust-worthy law enforcement and the free, high quality education/skill building for Industrial Modernity.

The Impulse to Natural Law enshrined in our Constitution

In these Articles we see the attempts made by the Constituent Assembly to hold fast to the Western Liberal framework. We see the appearance of terms such as Fundamental Rights, Equality before the Law, Non-Discrimination, Equality of Opportunity, etc.

Article 13 -
Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

Article 14-
Equality before law.—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-
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—

(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-
Equality of opportunity in matters of public employment.—
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) 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.

Article 29-
Protection of interests of minorities.—
(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.

The Impulse to Social Justice enshrined in our Constitution

In these Articles we see the attempts made by the Constituent Assembly to respond to the devastated condition that India found herself in in 1947. They respond with compassion, but inevitably (for that time) guided by a Marxist impulse. We see the appearance of terms such as Social Order, Social and Economic Justice, Elimination of Inequalities, Backward Classes, Presidential Investigative Commissions, etc.

Article 38-
State to secure a social order for the promotion of welfare of the people.—
1 [(1)] The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
2 [(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Article 46-
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.—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.

Article 340-

Appointment of a Commission to investigate the conditions of backward classes.—
(1) The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission.

This continues on in Articles 341 and 342 specifying that lists of Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes can be prepared by the State using criteria it thinks fit.

The Impulse to Manage the Corkscrew Dynamic between Natural Law and Social Justice made apparent via the Amendments

In these Amendments, we see attempts made by successive governments to circumvent the straight jacket of Fundamental Rights in order to pursue Social Justice agendas (with obvious short-term electoral benefits and long-term erosion of individual liberties).

AMENDMENT Article 15 [(4)
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.

AMENDMENT Article 16 (4)
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.

These Amendments use very specific words culled from Article 340 – “socially” and “educationally” “backward” “classes”.

The entire push and pull between the Judiciary and the Legislature over the past eight decades has been over the interpretation of these four words.

How is “backwardness” to be measured?

What is the meaning of “socially” backward?

How to define “educationally” backward?

What is the meaning of “class”?

In Part 2, we will look at a partial history of this dialogue. We will see how the State has acted under ideological and electoral compulsions, and the Judiciary has responded when petitioned by citizens. We will see the full range of thought processes expressed by jurists and in commission reports. We will see the inexorable movement of the pendulum in the direction of Social Justice and away from Natural Justice. We will see the acceleration of this trend in this millennium with the injection of readily available tropes from American academia.

POST-SCRIPT

In the matter of Amendments, a comparison with the US Constitution is pertinent.

Immediately after the preamble, the US Constitution concludes its business in a little over 18 pages. These articles are mostly focused on how the state and the law is to be run. The amendments are primarily about restricting state power over the citizen -

Amendment 1 – State shall not enforce religions

Amendment 2 – Citizens can carry firearms

Amendment 3 – Soldiers cannot commandeer private property without permission of the owner

Amendment 4 – People’s persons and properties cannot be searched without a warrant

etc etc...

I hope you can see the pattern. There is a preamble that makes a lofty vision statement. There is the main body, which talks about how the state will be run and law administered, and the amendments are all directed at curtailing state power and granting more freedoms to the citizen.

Our constitution, on the other hand, goes the other way. Over 370 pages, it gets into all kinds of nitty -gritty about specifics. Additionally, all our Amendments have been in the direction of curtailing citizen freedoms in the name of Social Justice, which, it can be argued, is acceptable in the medium term if -

1. Everybody is on board,
2. Social Justice is not being framed as revenge under an inaccurate and divisive oppressor-oppressed lens,
AND
3. We are honest and alive to the fact that the ideals of our constitution run the risk of turning into a proxy for electoral math, which would be very unfortunate indeed.