SCO Explains: Discussing Data in Reservation Policies with Dr. Anup Surendranath

Malavika Parthasarathy: Hello listeners. Welcome to SCO Explains, where we bring the work of the Supreme Court to you. This is the fourth episode in our series on OBC and EWS reservations for PG NEET applicants. In this episode, we continue our discussion on reservations for Economically Weaker Sections with Dr. Anup Surendranath, who teaches at National Law University Delhi.

In Neil Aurelio Nunes v Union of India or the PG NEET case, the Court upheld reservations for Economically Weaker Sections or EWS in postgraduate medical admissions. The Supreme Court is yet to adjudicate on the constitutionality of the eight lakh income limit set by the government to determine eligibility for EWS reservations.

Previously, we spoke with Dr. Anup about the gaps in the Court’s reservations jurisprudence and why the resolution of these gaps is essential to address who can be included in the EWS category. In this episode, we speak with Dr. Anup about how the State determines the beneficiaries for the EWS category.

We also discuss the Court’s demand for data in reservations, as well as the implications of this demand for how the benefits of reservations are distributed.

The Union appears to be casting a wide net for EWS reservations with its eight lakh income criteria. What could be the possible reasons for constituting EWS reservations in such a broad manner?

Dr. Anup Surendranath: The view to casting the net wider and wider is to say that, okay, look, we, as a government have extended this benefit to a larger number of group of people. And clearly there is set of, I guess, sort of, calculation of electoral interests in this.

In terms of you expand the group, you expand the beneficiaries. And therefore, you know, there is a certain amount of electoral benefit to be gained from that. But I think that is the incentive to make this broader and broader, but that sits at odds with a classic Article 14 argument, of creating this group that everyone under eight lakhs suffers from the same kind of vulnerability.

And that fundamentally is the problem that it is a difficult argument to sustain. That somebody who’s living below poverty line or people who are not earning, minimum wages or are not earning living wages a nd clubbing them with people who are earning eight lakhs.

How are you going to make that justification? That there is a similar thread of vulnerability running through this entire group that you’re creating. And I think the government will struggle to say that everyone under eight lakhs per annum income are located, equally. The same argument you might say, okay, how do this play out in OBC reservations or SC reservations.

There the similar thread running through is one of social discrimination, right? Or is of social backwardness that is the thread.

What does it entail? And that, answering that question of what economic weakness entails is very different for somebody who’s earning, annual income of, less than a lakh a year versus somebody who’s earning eight lakhs per annum. So that is that fundamental question, right?

There has to be a thread of commonality? They are not positioned equally. Everybody in the group that the government is creating is not positioned equally. And the government, the burden is on the government to justify why they are.

Malavika Parthasarathy: What are the implications of casting this wide net for the beneficiaries of these reservations policies?

Dr. Anup Surendranath: We will see this playing out That the people at the higher end of that spectrum, are going to corner the benefit. Because they have more access to opportunities. And this plays out even in the context of OBCs, or in the context of, Scheduled Caste/Scheduled Tribe reservations. And then it just played out in all those contexts to say: how do you ensure that the benefits of reservation go to the most marginalized within the beneficiary group?

We haven’t had an answer to that really. The, the creamy layer is an attempt to do that. To say that, okay, let’s try and, filter out who needs the most and give them the benefit.

Malavika Parthasarathy: How do you view the court’s push for empirical data for reservations? Do you think that this thrust for data is leading to delay in when the intended beneficiaries of reservations are able to receive its benefits?

Dr. Anup Surendranath: In terms of how there is strategic use of this demand for empirical evidence. And, and you see that in the sort of high court cases on reservations for Muslims. What is good enough? In the cases on promotion, whether the data should be cadre based or not.

While the court on the one hand seems to be saying there should be some material to come to your conclusion. But in certain other contexts is saying that it is also specifying that what kind of data is required.

See the point of pushing for data, it’s importance in context, like how to protect against certain dominant groups, cornering the benefits of reservation in that sense. And then that I can see the importance there is of saying that show us on what basis did you say that group X or group Y needs reservations.

Show us the basis for it.  I can see the push for empirical data but at the same time, there is a tension to it. The tension is that okay in trying to provide it for, by saying that’s the level of scrutiny that we are going to have saying that we will now tell you what exactly is the data that you need to generate, and you can’t decide that.

I don’t think it is incorrect to be preoccupied with this question of delays.  I–but I think unless you resolve the underlying questions. You’re not gonna be able to deal with all this. What is the burden on the government? When it is providing reservations in representative municipal bodies is very different or should be very different and the court needs to clarify whether that is different from when you want to provide reservations for SC/STs in promotions. Is it, is it not? Why is it different? Unless it clarifies all of these things you can’t treat every time a reservation question comes up in the same manner that you’ve been treating reservation question in all other contexts and that’s, and that’s the problem.

Malavika Parthasarathy: The Court is currently grappling with the validity of the eight lakh income criteria for EWS reservations. Will the Court address fundamental questions on the kind of data that is needed to frame reservations policies, how to constitute beneficiary groups for reservations, and the means to ensure that intended beneficiaries of these policies can access them without delay?

We will explore these questions and more in our coverage on the PG NEET case. Thank you for listening to this episode of SCO Explains. For more updates on the Supreme Court, visit scobserver.in