How (not) to reform India's affirmative action policies for its economically weaker segments

Various groups in India are protected with a vertical reservation (VR) policy, which sets aside a fraction of government positions and public school seats for each pro- tected group. By law, VR-protected positions are processed after those open to all appli- cants, thus assuring that they are awarded to individuals who cannot receive open po- sitions with merit. Historically, VR protections were exclusive to groups who suffered marginalization and discrimination due to their hereditary caste identities. This structure means that no individual can belong to multiple VR-protected groups, which in turn im- plies that the processing sequence of VR-protected groups is immaterial. A Constitutional Amendment in 2019 granted economically weaker sections (EWS) with VR protections, but limited its eligibility to members of forward castes who are ineligible for caste-based VR protections. The amendment was immediately brought to court, and the exclusion of mem- bers of caste-based VR-protected groups was challenged due to its violation of individual Right to Equality. In September 2022, a compromise that is discussed at the Supreme Court involves maintaining the amendment, but expanding its scope to include the excluded groups. If this compromise is adopted in the country, individuals can belong to multiple VR-protected groups. We show that a major loophole in the system will emerge, if the Supreme Court merely expands the scope of EWS without specifying how its positions are to be processed in relation to earlier caste-based VR-protected positions. Depending on which normative objective the court wants to promote, we formulate and characterize three plausible specifications. If EWS is processed simultaneously with other VR-protected groups, then the outcome is one that selects the most meritorious individuals subject to the Supreme Court’s mandates. If EWS is processed before all other VR-protected groups, then the outcome is one that maintains the elevated status of caste-based VR protections. If EWS is processed after all other VR-protected groups, then the outcome is the smallest possible change from the contested amendment that escapes a violation of individual Right to Equality.