Inevitable battle for job quotas

India is firmly in the grip of vote-bank politics. So, the clamour for job reservations for scheduled castes and tribes in the private sector will grow as we approach the state election in Uttar Pradesh next March. The clamour will be couched in the language of social justice, but will be largely about winning a critical election in India\’s largest state.

The major chambers of commerce and industry say they favour affirmative action, but not job quotas. They have proposed an affirmative action plan to provide training and entrepreneurship development for dalits and tribals. They have suggested public-private partnership for setting up new industrial training institutes. They say they are seeking lessons from the best affirmative action practices in the USA and South Africa. But, they point out, neither the US nor South Africa has ever mandated job reservations—that would be too destructive of quality and competitive standards. Rather, those countries seek to improve the skill levels of historically oppressed communities.

So far, the government has gone along, or at least not disagreed, with this approach. Yet Commerce Minister Kamal Nath was quick to say last week that legislation would be used if necessary to enforce job reservation. This shows that the Congress Party simply cannot let itself be outflanked on this issue by its rivals.

Two years ago, I appeared on a TV panel discussion along with Steel Minister Ram Vilas Paswan, who (as a dalit) favours job quotas in the private sector for scheduled castes and tribes. He said, correctly, that it was a disgrace that dalits and tribals remained an entrenched underclass after more than fifty years of independence. He then said, incorrectly, that India should follow the US in mandating job quotas in the private sector.

I found I was the only one in the panel protesting that there were no job quotas in the USA. Others, who had heard of affirmative action in the US, assumed that the Minister must be right in his assertion. When I protested that this was not so, the Minister laughingly waved a copy of the US law against discrimination, and said the facts were there for all to see.

This was not an isolated example of perverting the facts about US affirmative action. Shortly afterwards, I appeared on another TV discussion on job reservations along with CPI leader D. Raja. The two of us had a short exchange before the TV recording began. Raja waved a copy of the US law under my nose and said it was outrageous that the USA had job reservations for oppressed classes in the private sector but India did not. I challenged him to show me the section saying so. He thumbed his way through the papers, and pointed to some paragraphs. I read them, and said these simply provided that no private employer could discriminate on the basis of race or religion. The text said nothing about reservations. Instead of recanting, Raja simply lost him temper and ranted about social justice.

These two politicians are not illiterates. But they are astute media stars. They know how to use the media to propagate their message and burnish their image, and not waste time on something as humdrum as factual accuracy.Where will this end? In the

courts, for sure. For some time, affirmative action in the form of special training and entrepreneurship development might be regarded as enough. But, given the track record of politicians, I am quite certain that some of them will declare that this process is much too slow, and that job quotas are the only form of quick social justice. And all other parties will join the clamour, for fear of losing a vote bank.

If these parties pass a law reserving jobs for specified castes in the private sector, I suspect the courts will strike it down as unConstitutional. The Constitution says that equality before the law is a fundamental right. It then provides, as an exception, that the state may reserve jobs for dalits and tribals. A plain reading of the Constitution does not suggest that this reservation logic can be extended to the private sector. Reservations are supposed to be an exception, not the rule.

However, if courts strike down a job reservation law as unConstitutional, then I am pretty sure that our politicians will amend the Constitution to serve their purposes. They have done exactly that in regard to educational reservations in private unaided institutions.

But the story will not end there. Industry could argue that such an amendment violated the basic structure of the Constitution on equality. The Supreme Court might see merit in this argument: it has already held in a far-reaching judgement that Parliament does not have the power to pass amendments that violate the basic structure of the Constitution. That would, however, mean a huge showdown between the legislature and judiciary. Interesting times lie ahead.