It is interesting to observe how a census can bring together two political rivals who otherwise would fight each other. Yet this is what happened when Nitish Kumar, the Bihar Chief Minister who belongs to Bharatiya Janata Party-led governing coalition and his nemesis, Tajashwi Yadav of the opposition Rastriya Janata Dal (RJD) visited Prime Minister Narendra Modi.
Actually, the reason why the two politicians were banding together was to pressure the central government of India to include caste considerations in the upcoming national census.
While we know that caste dynamics have always been a cornerstone in politics of India, it is really fascinating to observe the levels of discussions and the amount of court litigations centered on reservation.
It is a dynamic playing field with the legislative and the judiciary at states and central levels shaping a jurisprudence on reservation on continuous basis, with courts’ rulings and appeals, with amendments to states’ laws and regulations and with frequent interventions of the central government.
Legal and legislative proceedings on reservation are also accompanied by a fierce and intense debate, putting reservation truly at the center of decision making.
All these elements make India not only an incredible experiment to use reservation or affirmative action, as it is called in the US, but also a paragon in terms of using the rule of law as a tool to enable a better and more inclusive society.
Case of Nepal
What can we learn from India’s experiences for Nepal? The ruling by the Supreme Court has opened a new chapter in the national jurisprudence in matters of reservation.
As controversial it was and as much criticisms it received, the ruling offers the best opportunity to better clarify and sharpen the legal rationale behind which Nepal made the right decision to use, among other tools, reservation as a way to address past grievances faced by large groups of the population, discriminated and marginalized because of their caste.
To move forward the debate, it is indispensable to also have clarity on the overall aims of reservation policies. Reservation should not be seen as a tool to bring personal economic prosperity even though this might be a consequential and welcome outcome of such policy. The focus, instead, should be to ensure that historically discriminated groups have proper representation in the main institutions of the state—from civil service to the legislature.
There is no doubt that reservation is a tool to bring equity in society but we should not also forget that the principle of equality before the law must be preserved and maintained if we want to sustain the system created with so many sacrifices.
Maintaining a balance between the quest for equity and a legal guarantee that everyone enjoys equal opportunities before the law is the crux of the debate. That’s why the ruling of the Supreme Court with all its limitations and possible defects is important: It opens a new opportunity to debate and clarify a very difficult and sensitive issue.
Let’s set aside misunderstandings.
The Supreme Court is presumably wrong in assuming that only considerations based on “needs” must become the central factor while deciding who should and who should not be eligible to a differentiated, special treatment in the form of reservation.
Reservation, as we can also clearly understand from the Indian jurisprudence on the matter, is a remedy to historical injustices that continue to be perpetuated nowadays and, as a consequence, certain groups of the society, those still paying the consequences of such a system, need remedy.
This is the underpinning of any reservation policy.
We should not forget that reservation is a tool that should be used effectively for only a focused aim of ensuring that historically discriminated against people have a better presence in the decision making.
Reservation pursues the objective of lifting up the number of citizens from vulnerable groups in all the state’s bodies and agencies and possibly also in the job market. That’s why the focus should be on representation and that’s why the Public Service Commission got it so wrong recently. Shradha Ghale has clearly explained this in her the Record article. When calling for vacancies to fill in 9,161 posts for 515 local bodies, only 2,262 places, instead of 4,122, were allocated by the Public Service Commission for minorities eligible to have access to reservation as per the existing law.
There are also risks with enforcing reservation without clear parameters. I am not only talking about the very possible resentment that such policy might create among those defined as members of the privileged groups. In many instances, reservation can become a political tool to rally voters and win elections for politicians who cunningly move the court to include more and more groups under the reservation’s provisions.
Precedents in India
Look at what’s happening in India. There you see an increasing pressure to enlarge reservation to the broader society. It means that not only most disadvantaged groups—such as Scheduled Castes (SCs) and Scheduled Tribes (STs), originally the only beneficiaries of reservation—citizens of the Socially and Educationally Backward Classes (OBCs) as well as other discriminated sections of the society are also included in it. Ensure reservation to one group, then another group will also demand it followed by another and another.
It can be an endless process and at the end, as The Economist noted, reservation in India is at risk of losing its meaning as it is going to be open to almost everyone.
The Uttar Pradesh’s government has been trying to enlist 17 OBCs in the list of SCs so that they will be able to get more benefits from quota as the number of persons listed in SCs is considerably inferior than those in the OBCs where, obviously, with more citizens of such groups claiming positions through reservation, the competition is much higher. The same thing is happening in Maharashtra with the State Government trying several times to ensure reservation to the Maharati community that is very well represented both politically as well as in the civil service.
For this reason, in order to deal with and accommodate new demands, including states’ pressure to go beyond the legally permitted 50 percent reservation, India has been creating, ruling after ruling, an extended body of rules and regulations, setting the criteria for those who can have access to reservation.
Reservation can become a political tool to rally voters and win the elections, with politicians cunningly moving the court to include more and more groups under the reservation provisions.
We can learn that finding the right formula is a continuous work in progress there. The landmark 1993 judgement in Indra Sawhney vs Union of India defined the pillars of reservation jurisprudence in the country but the same ruling has been object of numerous legal battles that also brought to several constitution amendments, with additional criteria and formulas to better define the boundaries of who should deservedly benefit from reservation.
Maybe such jurisprudence should be created in Nepal too. When the Supreme Court talked about the ‘creamy layer’, it simply asserted a principle that is an integral component of reservation policies in India. The principle in itself is correct: Those who are better off, even if they have been historically discriminated against, should not be eligible for reservation. A multitude of rulings in the Supreme Court of India have confirmed the basic tenets of such principle even though there is an ongoing debate on the thresholds to be considered to define the criteria to allocate a member of a disadvantaged group as part of the creamy layer.
A very recent ruling by the Supreme Court stressed that only the economic situation (now the threshold IRs 8, 00,000 per year) alone cannot be used to define someone as belonging to the creamy layer. In substance, you do not necessarily have to have a high income to be part of the creamy layer.
There are other factors, such as status and occupation, which should be taken into account, recognizing that the power enshrined by holding certain positions within the civil service brings privilege. It is incredibly complex to have a fair and justice-focused reservation policy in place that does not discriminate beyond the complex and extremely difficult quest of ensuring a more inclusive level playing field so that the marginalized and discriminated against have a protected voice and role in the society.
For those expecting that reservation should also be used to ensure social mobility, the rationale makes sense but explicitly advocating for such an aim will lead to a legal minefield and possible tensions within the society.
This is also what’s happening in the US where Harvard has been in the very recent past accused of favoring applicants from Latino and black communities at the expense of Asian Americans. Though the courts have sided with the university so far, the case might end up in the Supreme Court and the entire affirmative legislation might be at risk.
What we can learn from India is that finding the effective provisions with the right balance that also do not breach the principle of efficiency as enshrined in Article 335 of the Indian Constitution without at the same time falling prey to instrumentalizing reservations for political advantages is proving very difficult.
You can also look at what the BJP government did recently by creating a new category, the so-called Economically Weak Sections, or (EWSs), that basically is a way to ensure a 10 percent reservation for the weakest among the dominant groups. Something similar also happened in Nepal with the creation of the “others” category.
Fair and just
While it makes total sense to be fair to all, we should not forget that the reservation is one tool that should be used effectively for only a focused aim of ensuring that historically discriminated against people can have a better presence in the decision making.
I would argue that, to the maximum extent possible, these citizens should also be actively supported to also get into the job market, including in the private sector. We could also talk about other tools, including some that might be appearing even more controversial, for example issuing a public apology to those historically discriminated groups. This would require a symbolic admittance of past injustices and a commitment to build a new inclusive country. Another, even more complex, would entail providing for some sort of reparations for those discriminated by the system.
Truly both of these ideas would require a broad national debate and both might appear divisive though their goal would be to ease a fresh start rather than finding culprits and assigning blame for what happened in the past. With so many complex legal aspects of reservations to be taken into account, this can be an exciting time for the students of law in Nepal.
Legal scholars have the daunting job of building a national jurisprudence on reservation based on the local context, ensuring that reservation, as a tool, is effectively enjoyed by those who need it the most while policymakers and the rest of the society find other ways to create a real inclusive society and address the needs of those economically poor. This means implementing “effective and inclusive” development policies.