A social contract envisions the state’s obligations to citizens and what the state expects in return. A social contract imposes an obligation on citizens to respect and obey the state in exchange for security. While such a contract is written down in the constitution, in most societies the obligation of the state extends beyond simply providing safety. It includes broad provisions around services, jobs and public goods. The sustainability of social contracts hinges on how fair it is perceived to be. Fairness is enshrined in the right to freedom and right to equality. All would have the same freedom and would be equal to others only when all forfeit the same number of rights and are imposed the same duties.
That India was a divided society on the lines of religion with no possibility of any aggregation was clearly proven when she was divided on lines of religion into two distinct nations at the time of her independence on 14-15 August 1947. The outcome of this division was one nation of the followers of Muslim religion and the other nation of the followers of religions other than Muslim religion. Muslims living in the non-Muslim region had the option to move to the Muslim-region as the non-Muslims living in the Muslim region had the option to move out and go to the non-Muslim region. People did move. Those who chose to stay back did so of their own choosing.
Post Division India
That Post-independence non-Muslim India was a society riddled with social stratification and discrimination on the basis of caste was a matter of fact; leading to the lowest strata being treated as the ‘untouchables.’ There had been a history of castes, caste as a matter of inheritance and caste as a measure of social status. The masters of ‘divide and rule’ doctrine, the British had accorded legal sanctity and labels to castes in their very first census of the pre-independence united India in 1872.
Post-independence Muslim India, which was called Pakistan, had similar problems of caste-based discrimination; caste-system being prevalent in all non-Hindu communities the same way as it was amongst the Hindus. Further not every Pakistani citizen was a Muslim.
A well-intended attempt by Mahatma Gandhi to bring the untouchables back to the social milieu, by calling them ‘Harijans,’ had two distinct shortcomings. First, it focussed on people rather than practice thereby branding the people as belonging to a class of ’untouchables’ without in anyway attacking the practice of untouchability; and secondly, it put the people of upper castes on a pedestal and invoked them to embrace the down-trodden and not discard them if they could climb up. There was nothing actionable on the part of the upper castes to climb down the pedestal and take the down-trodden up with them or even meet the down-trodden half-way on their climb up to the pedestal.
The wise who formulated the Indian Constitution were seized of this social problem. They made the “practice of untouchability’ a crime and mandated affirmative action for the lower strata of the society through the Directive Principles of State Policy. No special rights or privileges were conferred on to anyone or taken away from anyone based on ones caste. The most farsighted action was in attacking the practice of discrimination rather than sanctifying the basis of segregation and discrimination. The constitution of India as adopted on 26 January 1950 guaranteed equality and freedom to every citizen.
Pakistan created a policy for affirmative action back in 1948, based on their geographic regions and urban/rural differences leading to quotas in government and education. The affirmative action in Pakistan has undergone change in tune with the dynamics of politico-geographic changes and urbanisation be it the civilian regime or the military regime. It goes to the credit of Pakistan and its rulers that notwithstanding the dysfunctionality in their successive regimes, they never aggravated the caste-based social-divide.
The streak of seeking popularity through rash behaviour led Jawahar Lal Nehru to the first mis-adventure of trampling upon the soul of the Indian Constitution by moving for the first amendment to the Constitution in less than 15 weeks since its adoption on 10 May 1951 and getting the same enacted by Parliament on 18 June 1951. This amendment made several changes to the Fundamental Rights provisions of the constitution, by limiting freedom of speech and expression, and put the right to equality below “special consideration” for weaker sections (?) of society. This amendment again focussed on people rather than the practices which resulted in their becoming weaker. This amendment made the same mistake which Mahatma Gandhi had made and buried the possibility of any gains which could have accrued to India from the foresighted approach of the makers of Indian Constitution.
Equality became subject to caste. Castes became legitimate and a basis for differentiation and rights. The wedge which the British had begun to drive in the Indian society was hammered deeper by Mr Nehru. Discomforting to acknowledge but it is the truth, that the first prime minister of Pakistan Liaquat Ali Khan had introduced the affirmative action based on geographic regions and their population thereby extracting the divisive-wedge and hurling it away in 1948.
The seeds for caste-based reservations were sown with the enactment of the first amendment to the constitution in 1950, the real action began in 1954, when the Ministry of Education suggested that 20 per cent of places should be reserved for the SCs and STs in educational institutions with a provision to relax minimum qualifying marks for admission by 5 per cent wherever required. The quantum and reach of reservations was expanded in 1982 to public-sector jobs and government-aided educational institutions. By 1990, the reservations and quotas had engulfed the Union Government jobs.
With the Governments going berserk in hammering the wedge deeper and deeper, The Supreme Court intervened in 1992 to curb such competitive opportunism amongst governments and capped the quotas at 50%.
Religious Divide follows the Caste Divide
Indian Constitution does not define the word Minority, but under Article 30, it has provided fundamental rights to religious minorities to establish and administer educational institutions of their choice and right to equality of such institutions in the matter of receiving aid from the State. As if the caste-wedge of segregation in the society was not sufficient, The National Commission for Minorities Act 1992 was enacted. This Act defines “minority” as a notified community. Through a notification of 22 October 1993, government notified Muslim, Christian, Buddhist, Sikhs, and Parsis (Jains were added later on) as “Minority Communities.” Of the six, 3 are Indic-religions while other 3 are from foreign lands. The most interesting ‘act of commission’ by the government was in notifying “Minority Communities” in place of communities which are “Minority” thereby very surreptitiously creating a ‘legal basis’ for religious affirmation and appeasement in a secular country. Followers of every other religion other than Hindu religion have been granted a legal status of a religious minority.
The Ministry of Minority Affairs was created on 29th January 2006 to ensure a more focused approach towards issues relating to the notified minority communities namely Muslim, Christian, Buddhist, Sikhs, Parsis and Jain. The mandate of the Ministry includes formulation of overall policy and planning, coordination, evaluation and review of the regulatory framework and development programmes for the benefit of the minority communities.
Politics of Division occludes the Saviour of the Constitution
The 1992 Supreme Court ruling said that reservations in job promotions are “unconstitutional” but allowed its continuation for five years. In 1995, the 77th amendment to the Constitution was made to amend Article 16 before the five-year period expired to continue with reservations for SC/STs in promotions. It was further modified through the 85th amendment to give the benefit of consequential seniority to SC/ST candidates promoted by reservation.
As of January 2018, there have been 123 attempts (Amendment Bills) to change the Constitution and 101 successes (Amendment acts) in changing the Constitution of India since it was first enacted in 1950; nearly two attempts on an average every year, with a high success rate of over 82%. More than half of these amendments relate to reservations.
The Supreme Court ruling against misuse of law by the SC/ST/OBCs for harassment of the so called upper castes by restraining the arrest of the accused without inquiry has been overturned by the government through an ordinance by the present day government. The same government, in defence of quotas in promotions, only last week stated before the Supreme Court that the benefits of reservations have not yet reached the beneficiaries.
Critical Introspection of Reservations
India needed social inclusion which could not have been achieved and as the government acknowledges, has not been achieved so far; and all this in spite of increasing dosage of reservations and quotas over the last 70 years which would have seen not one, not two but three or even four generations of the population. This may be the time to acknowledge that the remedy of quotas and reservations does not work for the purposes of an inclusive society. In fact, the side-effects of this remedy on the society have been very dangerous and harmful. Cracks in current social contracts have emerged – more people segregating themselves from the main society to form into splinter groups to demand quotas and reservations for themselves and the so called socially advantaged groups finding themselves as legally-disadvantaged in a country which had promised them equality. There is evidence that the middle class from the upper caste Hindus are sending their children to private schools, using private healthcare, digging their own boreholes for water and buying their own generators and yet being hounded to pay taxes to the government in fulfilment of their duties under the social contract. Look at their irony of fate, they should pay taxes, over and above they should pay an education cess but their children may be deprived of a seat in an educational institution because it would go to a much lower calibre child from a quota class. They are also the most vulnerable to be victims of corruption and give in to corruption in order to make their lives easier.
Estimates show that 90% of the working class in India is engaged in informal employment. Of the 10% who are in formal employments (meaning, they have a formal contract of work with defined wages and some social security) more than half are in private-sector. Informal workers are beyond the reach of the state with respect to provision, protection, and redistribution. People operating in the informal economy evade their obligations to the state by not paying taxes. Informality is an opt-out option when social contracts are considered unfair. Informality reflects a lack of trust in the State.
The quota and reservations clearly matter for less than 4% of the work force and at 50% capping provides just 2% of the opportunities. For this 2%, the divisive policies have fractured the society more than any perceptible gains in social inclusion. The social contract is broken… there is a culture of not participating, of not caring, of silence among the majority. India today stands more divided then it was at the dawn of independence; and none other than the successive governments are responsible for this.
Re-imagining an Inclusive India
Mechanisms to ensure equal opportunity, which ensure social inclusion, have fallen short. The government needs to prepare a new social contract through legislative processes and national consultations, aimed at improving social inclusion through fairness and equality.
Will the next government pledge to do that?
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