'The moment the BJP loses a state, it announces some policy which never takes off.'
When President Ram Nath Kovind gave his assent to the 124th Constitutional Amendment providing 10% reservations to the economically backward section in the general category in government jobs and education, reservations for the economically weaker among general category became a law.
To enable this provision, Articles 15 and 16 of the Constitution were amended by adding a clause that allows the State to make 'special provision for the advancement of economically weaker sections of citizens',
Professor P Radhakrishnan, a former professor at the Madras Institute of Development Studies and a renowned expert on reservations, believes that apart from opening a Pandora's Box which the Act has already done, the Supreme Court could strike it down.
"Even if the Supreme Court approves it, it is not possible to implement it as there is no yardstick. How are you going to define economic backwardness?" Professor Radhakrishnan, below, asks Rediff.com's Shobha Warrier.
After the 10% quota bill was passed in Parliament, Prime Minister Narendra Damodardas Modi called it 'the victory of social justice'. Do you feel so?
Not at all. This is against all the rulings of the Supreme Court and also against the Constitutional provisions for reservations.
It has exposed the double-speak of our parliamentarians. In one voice, they passed the bill.
Including the Bahujan Samaj Party...
Yes, the scheduled castes and scheduled tribes supported the bill as they do not want to antagonise the vote bank of the forward communities. The Government of India does not know the actual population of the forward communities even now.
The very fact that the President of India, who is supposed to be a Dalit, gave assent to the bill is scandalous. He could have sent back the bill. It is a shame on the nation that he gave assent to the bill.
But the government says it is a quota for the economically backward and has not used the term 'upper caste poor'.
I have the full text of the bill with me. It does not matter if the term 'upper castes' does not appear in it as the bill is verbal jugglery in other ways, and prima facie unconstitutional.
Why do you say it is unconstitutional?
The Supreme Court rulings of November 16, 1992, by a nine judge bench in Indra Sawhney & Others vs Union of India struck down the Centre's order of September 25, 1991, for 10% reservations for the economically backward sections of the people not covered by the existing schemes of reservations.
The rulings made it emphatically clear that economic backwardness cannot be the sole criterion for deciding backwardness.
Is economic backwardness not a major criterion?
Economic backwardness is derived and contingent backwardness. It is caused by other forms of backwardness such as social and educational backwardness in our society arising out of the persistence of caste-based historical disabilities.
Way back in the 1880s, the report of the first Education Commission had clarified the nature and incidence of poverty thus: Poverty of the poor among the lower strata is not only economic, but also social and cultural, whereas that of the poor among the upper strata is primarily economic.
Though instances of great poverty are not confined to the lowest classes of society but exist in every caste, including the Brahmins, such instances increase as the caste descended in the social scale.
Poverty is poverty. What is the difference when a person cannot provide food for her/his children? What has caste got to do with the hunger of a person?
No, you are wrong. Poverty as social fact or social phenomenon is very intricate, multi-layered and multi-dimensional. It is not the same for people belonging to different castes. To understand this, we have to go back.
Even before the Mandal judgment, a number of judges had drawn a distinction between economic backwardness or poverty and other forms of backwardness, in particular social backwardness.
To ensure that the benefits of reservations reached the really needy among the socially backward, they suggested the elimination of the creamy layer, and a ceiling on reservation so as to keep reservations to a reasonable minimum.
Justice O Chinnappa Reddy in his report on Karnataka's backward classes observed that reservation is not a poverty eradication programme. Reservation is not merely giving employment or education as a package of welfare measures; it is much more complex.
Justice Reddy struck down many groups and worked out a formula which was appreciated by the nine judge bench in the Mandal judgments.
Last year, the Supreme Court extended the creamy layer concept to the affluent in the SCs and STs and also questioned Articles 15 (4) and 16 (4) which do not mention economic status as a criterion for the special provision in reservation...
We have to look at the composition of different Supreme Court benches. Many of these are not Constitutional benches unlike the nine judge bench in the Mandal case, which went from a three judge bench to a five judge bench to a nine judge bench.
As I said, while economic status can be one of the criteria in deciding backwardness, it cannot be the sole criterion. But the present legislation is exclusively for economically backward among the communities which are not in the ambit of existing reservations.
What is worse is the legislation excludes the economically backward among the SCs, STs and OBCs (Other Backward Classes). They are not included in this category of the economically backward.
The legislation is only for the general or 'open' category; only for the backward among the forward communities.
Still, all the political parties in both Houses supported the bill.
That argument is not valid. It is something like saying majoritarianism in a democracy is right. In a democracy, the unit is not the group, but the individual citizen.
If you take away rights, an individual cannot survive. So, an individual's rights as enshrined in the Constitution have to be necessarily upheld and protected by the judiciary.
By its very nature, our Constitution is transformative and still evolving.
Is that one of the reasons to look at reservations as a whole once again now?
That cannot be done merely in the context of this 10% quota.
But can we say this is the first step towards that?
No, because that is not the idea of the bill. This legislation was not meant for a re-look.
In the last 20 years, all kinds of experiments have been done with the reservation policy.
When I say the passing of the bill exposes the doublespeak of our parliamentarians, it is because most of them are not aware of the Constituent Assembly debates; and they don't practise what they preach.
The Constitution talked about reservation only for 10 years and special provision for the SCs and STs.
In the case of OBCs, reservations was meant to, as Dr B R Ambedkar said, to enable them to have a 'proper look' into the working of the administration.
What we have to look at is the distribution of the nation's social capital and resources and the nature of the access of the different social strata to the opportunity structures.
Do you think if we had reservations based on economic backwardness from the beginning, caste would have taken a back seat?
No. Caste has definitely led to economic backwardness, cultural backwardness and educational backwardness. Cultural capital exists only with the affordable groups and not with every group. There is no country in the world that survives only on the basis of economic factors.
Social factors are much more important than economic factors. Economy, no doubt, is a necessity for subsistence and survival at the individual and group levels.
Is not economic backwardness one of the major reasons for social backwardness?
No. Economic backwardness of an individual or a family can result in the economic backwardness of that particular individual and family, but not the group as a whole. The word 'social' has wider connotation.
If you look at the condition of the overwhelming majority of a particular group, for example the Brahmins, the group might have become economically poor in a state like Tamil Nadu, but their poverty has not affected their social status.
Social backwardness has to be linked with social status.
For various reasons, even now a Brahmin is always respected. However rich an SC or a Dalit may be, (s/he) is often looked down upon by the upper castes for lack of social status which is inherited and cannot be bought by money.
That's why I said upper castes have cultural capital which the lower castes do not have. They may not even be able to trace where they were born while somebody like Rahul Gandhi can trace his family back to at least six generations.
Poverty is not measured in terms of rupees alone, but is based on many other factors. That is why the idea of education was given a lot of importance starting from at least the 19th century.
Recall how Dr Ambedkar got the best education and how education can be the best instrument for change. Sadly, despite getting the best education, he was not accepted by India's caste-ridden society.
So, a review of the entire system of reservations is needed now?
While reviewing the entire system of reservations, you have to see how it has worked in the last 70 years. While in the case of scheduled castes it started in 1935, it started gradually from 1950 in the case of other social groups.
Recall the Rohini Commission for sub-categorisation of OBCs at the Centre. To begin with, it was given only 12 weeks to submit its report. But it has not submitted a report even after two years and now it is on extension till May.
The political agenda of setting up this commission has to be seen as the BJP's caste-based vote-bank politics.
In the central list, there are around 6,000 castes and it is very difficult to assess the condition of each caste. Only a proper enumeration can do that.
The BJP government at the Centre thought it could do it in a hurry and garner more votes from more castes, especially in north India.
The moment the BJP loses a state, it appoints some commission or announces some policy which never takes off. That is how the Rohini Commission came into existence. I doubt whether it will submit its report even in May.
What kind of impact will this 10% quota have?
From the Rohini Commission to 10% quota is only a small political move by the BJP.
Before that, Parliament conferred Constitutional status on the National Commission for Backward Classes though it can only work with the central list of OBCs. Ideally, the 10% quota bill should have been left to the National Commission for Backward Classes.
I am sure that this 10% quota bill will not be approved by the Supreme Court. There is already a case before the Supreme Court on this issue by the Youth for Equality.
The bill is being challenged as the nine judge bench in the Mandal case has made it unequivocal that economic backwardness cannot be the sole criterion for identifying any group as backward.
The bill is also very vague and even if the Supreme Court approves it, it is not possible to implement it as there is no yardstick.
How are you going to define economic backwardness?
It mentioned annual income of Rs 8 lakhs as the ceiling...
The National Commission of Backward Classes also has this ceiling of Rs 8 lakhs. Such a high ceiling is a floodgate and almost all people can pass through it.
And how many people can calculate yearly income? Annual income calculation has always been problematic and wrong.
In India, we are obsessed with reservations. What is needed now is the entire scheme of reservations should be reviewed from the Constitutional perspective and the perspective of the social dynamics of the last seven decades.
I see this bill as Modi's desperate attempt to come back to power in 2019.
