The private sector has a responsibility to implement the Constitutional philosophy of social justice, says the former judge
Over the past few months, Karnataka has seen a surge in demand for reservation from various communities. Land-owning communities that have traditionally dominated State politics are at the forefront, which in turn has created insecurity among other backward communities, stirring the caste cauldron. Other States such as Maharashtra and Uttar Pradesh too have seen similar agitations not too long ago.
Justice H.N. Nagamohan Das, a retired judge of the Karnataka High Court, recently submitted a report to the State government asking for increased reservation for both Scheduled Castes and Scheduled Tribes, and for legislation to expand reservation in the State beyond 50%, like nine other States in the country.
An expert in constitutional law, he has also spearheaded a campaign to teach the Constitution to students across the State over the last two years. Excerpts from an interview:
Several communities, including those considered to be relatively privileged, like the Vokkaligas and Lingayats who have dominated State politics after Independence, are demanding a bigger share in the reservation pie. Why is this happening?
Over the past decade, we have seen similar protests by the Patidars in Gujarat, Jats in Haryana, Gujjars in Rajasthan, Marathas in Maharashtra, Kapus in Andhra Pradesh and now, by the Lingayats, Vokkaligas and Kurubas in Karnataka. What is common to all these groups is that they predominantly rely on agriculture.
Agricultural communities of our country neither demanded nor opposed reservation in the 50s. But over seven decades, policies pursued by successive governments have increased agriculture production but hit agriculturists badly. They are now facing a deep crisis, mainly economic, which has also manifested itself in the social and cultural spheres, as is evident from farmer suicides.
These demands for a bigger share in reservation, while often instigated by vested political interests, are also a reflection of a deeper crisis elsewhere. Fulfilling all demands for reservation will help only a marginal section of agriculturists in the country, as the reservation pie has shrunk over the decades. So, it is no solution.
In this light, the farm laws introduced by the Union government will only aggravate the situation.
Most of these communities have enjoyed the benefits of reservation in the post-Mandal era. Also, there is a paradox in how the reservation benefits are shrinking while there is a clamour for inclusion.
The agricultural crisis is closely linked to the neoliberal economic policies we embarked on three decades ago, roughly around the same time the Mandal Commission’s recommendations were implemented. That is when avenues of reservation began shrinking significantly due to privatisation of PSUs, government departments opting for contract labour and the outsourcing of labour, where reservation does not apply. As per recent studies, over 60 lakh sanctioned posts in the public sector are lying vacant.
Today, 98% of job opportunities are in the private sector, leaving only 2% of opportunities in the public sector. With a 50% cap, only 1% of the jobs comes under reservation for nearly 75% of the population of this country. Nobody is demanding a redress of these issues, but are instead clamouring for a bigger share in the already shrinking pie. It is myopic.
There have been proposals earlier to extend affirmative action to the private sector. Can that be the answer?
Is the private sector really private? These private firms raise money through selling their shares or borrowing from financial institutions, essentially public money. They acquire land through the state apparatus, take tax rebates and use public infrastructure. Therefore, the private sector has a responsibility to implement the Constitutional philosophy of social justice.
We need to evolve mechanisms through proper studies and democratic debate to implement affirmative action in the private sector, keeping in mind competition, efficiency and social justice. There are new challenges like the gig economy. How do we implement affirmative action there? We need to think along these lines.
You have recommended increasing reservation for SCs to 17% (from 15%) and for STs to 7% (from 3%) in Karnataka, which will breach the 50% cap. Do you think this is the way forward? Is it feasible?
The Supreme Court has not given any scientific rationale for the 50% cap on reservation. Hearing a petition in connection with the Maratha reservation issue, the SC is now revisiting its 1992 Indra Sawhney judgment that put this cap and has issued notices to several States. Many, including Karnataka, have filed affidavits to expand reservation beyond 50%.
In orders subsequent to the 1992 judgment, the apex court had also said the norm can be relaxed in exceptional circumstances. Nine States have already instituted reservation beyond 50%. The 10% reservation for the Economically Weaker Sections (EWS) that the Union government brought in also breached the 50% cap.
We need to make a strong case for removing the cap. For instance, the Karnataka government carried out a socio-economic survey of all castes and communities in the State in 2015-16. This survey can form the basis for expanding the reservation pie.
The idea of merit and efficiency is sometimes unfairly interpreted in the context of reservation. How do we evaluate merit in the context of denial of opportunities?
Given that even the 50% quota is a faraway dream, manifested in its lack of meaningful implementation, doesn’t the prescription for a higher cap seem like grandstanding?
Increasing reservation beyond the existing 50% cap will only lead to a better and more equitable redistribution of the pie, a lack of which is also a serious problem. But to better achieve social justice, we need to increase the pie, fill up vacancies; create more jobs; stop disinvestment, outsourcing and contract labour in the public sector; and introduce opportunities in new areas such as super speciality posts, professorships, upper houses of legislature, and the private sector.
Do you think our reservation policy needs a complete overhaul to make it more relevant today?
There is confusion at the policy level on several issues pertaining to reservation today — reservation in promotion, in the private sector, the 50% cap, the creamy layer, internal reservation to protect weaker communities, guidelines for inclusion and exclusion of communities and classification. Most of these decisions are now taken ad hoc, creating a bigger mess. There is no consistency in the judgments on these matters as well.
Moreover, two new aspects have emerged — reservation on the basis of economic backwardness and reservation for locals of a region. The reservation policy also seems outdated, without affirmative action in the private sector.
We need to resolve these issues and the entire policy needs to be rehauled and rewritten for today’s needs. We must also first discuss how to deliver the benefits of reservation to communities that have not reaped its benefits in the past seven decades within the reserved category.
What can be the starting point for such an exercise?
Along the lines of the socio-economic survey or caste census carried out by Karnataka, a census needs to be done at the national level to evaluate the present conditions of various communities. A lot has changed since we finalised the SC-ST and OBC matrix. Only such a national survey can be the starting point of a rehaul of the reservation policy.