Transcending Reservations

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Transcending Reservations: A Paradigm Shift in the Debate on Equality Tarunabh Khaitan

Some of the contemporary debates on social inequality transcend reservations so as not to be entrapped in the caste paradigm. This article maps the creeping changes in official discourse brought about by the infusion of fresh ideas. If implemented, the new proposals have the potential of bringing about significant changes in the lives of many, thereby achieving a more meaningful equality for a wider population.

Tarunabh Khaitan ([email protected]) teaches law at St Hilda’s College, Oxford, UK.

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aste-based reservations in public employment and education have been India’s primary vehicle for fulfilling its constitutional promise of an egalitarian society. For 60 years independent India has seen this policy increasingly entrenched and the most important debates on equality have been debates on eligibility of various caste (and sometimes, religious and economic) groups to access the benefits of reservations. There have been voices of dissent, voices proposing alternatives, demanding reviews and impact assessments of the reservation policy, often through the pages of this journal.

1  Introduction Some have asserted that decades of reservations have done little to remove the evil of caste discrimination in any significant manner [Thorat 2002]. Others have argued that reservations reinforce caste and ethnicity rather than transcend it. Sanjib Baruah (2003), for example, says that the reservations policy in the north-east has concretised ethnic identities and classified the descendants of immigrants as perpetual outsiders. This has been the main anxiety that has prevented the extension of the reservations model to religious groups. The context of our history of Partition based on religion has introduced particular sensitivity for the dangers of concretising religious identities [Ali 2006]. The u­gliness of competition for reservations benefits that identity politics sponsors was seen in the recent violent conflicts over reservations for gujjars. Rajasthan makes one sceptical of the reservations policy. These are but a few issues in a crucial debate that touches upon issues of equality, justice and national integration. Recent years have seen bold proposals that

transcend reservations – some hostile to the concept, some seeing it as necessary but not sufficient, while yet others which r­equire certain modifications. Deshpande and Yadav (2006), for example, have proposed a point-based affirmative action programme that takes into account both group and individual disadvantages. T­horat (2006) recommends a slew of mea­ sures, including an anti-discrimination law and reservations, to achieve social justice. Till recently, these dissenting voices have largely been academic or activist. But the last few years have witnessed a creeping change in the government discourse on equality, a sort of officialisation of these voices. Recognising this change is critical to everyone who has been dissatisfied with the unidimensional equality model embodied in the reservations policy. These new proposals are not necessarily hostile to reservations and can easily c­­oexist. But they claim to have the potential of achieving more meaningful equality for a wider population on (hopefully) more acceptable terms to the nonbeneficiaries. The main purpose of this article is to map this change in the official discourse and outline these new postreservations proposals. It all started with the justice Rajinder Sachar Committee’s (2006) ‘Report on S­ocial, Economic and Educational Status of the Muslim Community of India’. Realising that the backwardness of Indian Muslims is a result of a larger institutional and societal context, it made two specific recommendations designed to benefit all vulnerable groups, not just Muslims: (1) ...the Committee recommends that an Equal Opportunity Commission (EOC) should be constituted by the government to look into the grievances of the deprived groups, (2) enhancement of diversity in different spaces should be seen as a larger policy objective... The idea of providing certain incentives to a “diversity index” should be explored.

This out-of-the-box thinking that went beyond reservations in public employment and education were necessary because of the constitutional impermissibility of reser­vations for religious groups. Two separate expert groups were set up as a follow-up measure to look into these two

september 20, 2008  EPW   Economic & Political Weekly

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suggestions in further detail. The first e­xpert group, chaired by Madhava Menon (2008), was asked to “examine and determine the structure of an Equal Opportunity Commission”. It submitted its report in February this year. The second expert group, chaired by Amitabh Kundu (2008) to “propose ‘diversity index’ and to work out the modalities for implementation” submitted its report in June 2008. The Kundu report recognised that the Sachar report’s impact would be wider than its principal objective: Although the task of the Sachar Committee was to evaluate and enumerate the conditions of a specific minority group, the idea of a diversity index is floated to operationalise a broader notion of diversity, countering the tendencies of discrimination and deprivation in production, distribution and social sectors in India (vii).

A related development has a different origin. Because of the shrinking of the state since liberalisation started in the early 1990s, even the original beneficiaries of the reservations policy – the schedu­ led castes (SCs) and scheduled tribes (STs) – knew they were losing out. Intervention in the private sector became necessary and the current United Progressive Alliance (UPA) government promised as much after taking office: The UPA government is very sensitive to the issue of affirmative action, including reservations, in the private sector. UPA’s Common Minimum Programme (2004).

But since reservations were less palatable to the private sector, other forms of a­ffirmative action needed exploring. The task is being performed by the Coordination Committee on Affirmative Action, chaired by principal secretary to the prime minister’s office T K A Nair. Although the beneficiaries are still restricted to SCs and STs, the government has (at least so far) relied upon negotiations rather than legal sanction to encourage affirmative action measures that are not reservations-centric. Put together, these developments point towards a new multifaceted understanding of equality. If implemented effectively, they might make more meaningful changes in many more lives than what has been managed by the reservations policy on its own. The following sections will look at different aspects of this broadening

under­standing of equality from a holistic point of view.

2  Prohibiting Discrimination1 The main focus of the EOC proposed by the Menon report will be to weed out discrimination against members from “deprived groups” identified by an objective deprivation index, and defined by “sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...” ground. Thus, the eligibility requirement for protection by the proposed law is deprivation based on an open-ended list of irrelevant personal characteristics. The final residual clause “or any other” is a place-holder for other analogous autonomy-infringing grounds that may be filled in later. A­lthough this foresight is commendable, it will be a good idea to expand the list to include currently known analogous grounds like “sexual orientation, marital status, food preference, age, dress preference, gender identity, pregnancy”, etc, while still retaining the residual clause. The proposed bill in the Menon report also recognises that deprivation is contingent. What is today a deprived group may not be so tomorrow. Protection will be dependent not on the much maligned “vote-bank politics” but on a principled demonstration of deprivation through the deprivation index. Further, the bill recognises our multiple identities by moving away from a focus on single interest groups and instead arriving at the generic idea of “­deprived groups”. One may be rich, male and able, but a Muslim religious identity may result in being discriminated against nonetheless. Again, a dalit lesbian woman c­arries several depriving identities, the t­otality of which cannot be captured by a singleissue oriented law. This design is not only morally better but also has a more universal appeal – with the rich and complex diversity of human identities, most of us are more likely to see ourselves as potential victims of ille­gitimate discrimination rather than as per­petual non-beneficiaries. This raises the possibility of empathy with victims of discrimination rather than empathyfailure caused by divisions between us-and-them.

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In its potential impact, the Menon report is the least ambitious of the three s­uggestions being discussed here. It only goes so far as imposing a negative obligation on public as well as private bodies: refrain from discriminating unfairly. There is no positive requirement to do good. This is what makes it possible to have a long list of beneficiaries – unfair discrimination against anyone is wrong. But it is particularly wrong against a member of a deprived group, because by definition they have few opportunities available to begin with. The Menon committee is, correctly, “of the firm opinion that the jurisdiction of this Commission should not be limited to the public sector”. Yet, citing incremental sectoral progress, it suggests that only employment and education should be the initial focus of the EOC. The deferment of its application to the housing sector to a later date is unfortunate, given rampant discrimination on the grounds of religion, caste, food preference and marital status existing in that sector.2 To what extent anti-discrimination legis­lations can help eradicate structural injustice in the short-term is debatable. Driven as they usually are by complaints from victims, even a very effective e­nforce­ ment mechanism can only be e­x pected to deal with only a limited p­ercentage of existing discrimination in society and that too after the discrimi­nation has taken place. This has been a­ddressed to a limited extent by the M­enon report which seeks to grant a broad policymaking role to the proposed EOC (sadly, it seems, at some e­xpense to the equallyimportant adjudicatory function in cases of individual d­iscrimination). Having enacted the Civil Rights Act prohibiting discrimination in the private sector in 1964, the United States (US) provides good evidence over a long period of time. Of course, the Menon report pro­ poses a group-driven rather than an i­ndividual-driven complaints model and adjudication is only a minor role of the proposed commission – so comparisons can be tricky. For what they are worth, some statistics released by the US Equal Opportunities Commission reflect the change in the composition of the workforce over the years, which at least in part, is owed to the law.3

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Although discrimination certainly continues to exist in the US, the figures are remarkable. Before enacting the Menon report into law, a study of the impact of various models of anti-discrimination laws in other jurisdictions as well as pilot studies in India is necessary. Table 1: Share in the Composition of Private Workforce (all figures in percentages)

White Men

Women

Minorities

1966

60.9

31.2

11.2

2002

36.7

48.2

29.7

Table 2: Share in Official and Managerial Positions in Private Workforce (all figures in percentages)

Women

African-Americans

Latinos

1966

9.3

0.9

0.6

2002

36.4

6.9

5.3

Table 3: Share in Professional Positions in Private Workforce (all figures in percentages)

Women

African-Americans

Latinos

1966

20.5

1.7

0.8

2002

51.7

7.1

4.1

While the Kundu report discussed in the next section is more directly concerned with the representation of various groups in the workforce, anti-discrimination l­egislations definitely augment other measures to encourage diversity. But the latter have their main value in promoting a national culture that is intolerant of u­nfair discrimination. This battle of minds is p­erhaps more, if not as, important as the battle of numbers.

3  Promoting Diversity In a non-discriminatory world, all public spaces will be diverse (public “spaces” include privately owned business, housing societies and schools since the functions they perform are of a quasi-public nature). If hiring, admitting, leasing and selling policies are non-discriminatory, the social mix of a workforce, students or housing society will roughly reflect that of the society itself. Since this is not the case, positive action is needed. The Kundu report argues thus: The case for increasing social diversity in public spaces can be built on the notion of a fair demographic representation for all groups of population. Groups that are subjected to discrimination in society tend to get under-represented (as compared to their proportion in the population) in several public spheres. This leads to inequity and alienation resulting in resentment and frustration among the excluded population. These could

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assume violent and secessionist expressions, leading to disruption in social and political life, with serious negative consequences for growth, development and social harmony... There are numerous cases when the individual characteristics have been rendered e­ither secondary or completely redundant in determining her/his access to these institutions as group identities overwhelm or dictate the decision-making process.

Diversity, although linked to discrimination, is an independent concept. As the Kundu report emphasises, its main concern is the “Concentration or clustering of populations with similar socio-economic, religious and ethnic characteristics in geographical, social, political and institutional spaces...” A concentration of minority groups in a public space is as regrettable as that of a majority group. As such, diversity transcends the majority-minority divide. The benefits of diversity go beyond repre­sentational justice. As the US Supreme Court noted in Grutter vs Bollinger, a d­iverse “admissions policy promotes crossracial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races. These benefits are important and laudable, because classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.”4 Similar benefits may be seen in a diverse workforce. The Kundu report does not restrict the sensitivity of diversity to religion alone. The report recommends a diversity-index which is sensitive to caste, religion as well

as sex in a given public space. It calculates the “diversity gap” in a public space by comparing the actual intake of members of a particular religious, caste or gender group in a given institution to the “population who are eligible to enter the institution” and not to the general population. While admitting that a low number of eligible members itself may be a result of discrimination, the report justifies this as a pragmatic compromise because “an individual institution has limited role to play in changing that”. The diversity gap is designed to ensure that only social exclusion is corrected – so, only if a community is under-represented in proportion to its eligible population will the institution be rewarded for enhancing its participation. If a community (even if a minority) is already over-represented in a given institution, it cannot claim any benefits. Once diversity gap has been identified in an institution, the report recommends that those institutions which take measures to bridge the gap should be rewarded by the state with incentives, concessions, access to public land and resources, tenders, export quotas, preferences, advertisements, etc; while those institutions that ignore the diversity gap are not punished but do not get the benefits either. The report identifies three sectors to push for diversity – education, employment and housing. It recommends: (1) Incentives in the form of larger grants to those educational institutions that have higher diversity and are able to sustain it

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over time. These incentives can apply to both colleges and universities, both in public and private sector. (2) Incentives to provide the public and private sector enterprises and institutions to encourage diversity in their workforce. While such initiatives should be part of the corporate social responsibility, some affir­mative action may help initiate this process. (3) Incentives to builders for housing complexes that have more “diverse” resident populations to promote “composite living spaces” for “socio-religious communities”. Thus, the implementation scheme is based only on carrots, not sticks. The concept has been employed in various other countries. In a recent book entitled Buying Social Justice Christopher McCrudden (2007) draws on jurisdictions as diverse as the US, Malaysia, the European Union, Canada and South Africa to provide an excellent empirical analysis of the way in which they have tried to balance private freedom with social goals, by “buying” s­ocial justice. Instead of relying on their “i­mperium” (power of sanction), these j­urisdictions have relied on their “dominium” (power of purse) to achieve social justice goals. The idea is an intelligent compromise between entrepreneurial freedom and social justice, and is a useful one to try out in India. The report suggests that “this approach has greater flexibility than the system of reservations. The diversity-based incentive system, first and foremost, creates awareness. It sets the goal towards which the institutions would work, and while these goals may not be achievable immediately, institutions must try and achieve them gradually, within a reasonable p­eriod of time.” It further argues that reser­vations might make sense in “certain specific situations” but the diversity a­pproach is “a more effective and, we hope, a more a­cceptable solution” for “long term... systemic change”.

4  Promoting Affirmative Action The Nair Committee on affirmative action is less clear conceptually, operating as it does on the negotiating table between senior bureaucrats and trade and industry leaders, rather than having its origin in a well-thought-out academic report. The government appears to be appealing to

corporate social responsibility of the companies, while on the other hand keeping open the possibility of Parliament imposing affirmative action obligations on private companies through law if voluntary action does not deliver quick results [­Aggarwal 2008b]. The corporate sector is being encouraged to invest in increasing the skills and employability of SCs and STs, to provide scholarships and jobs and promote industrialisation in districts with large SC/ST populations [Aggarwal 2008c]. The Confederation of Indian Industry has so far resisted government efforts to appoint an ombudsman to oversee the implementation of these measures [Subramaniam 2008]. However, in a meeting of the committee in June 2008, the Federation of I­ndian Chambers of Commerce and Industry informed the government of some of the measures that the industry has been taking to fulfil the goals identified by the committee [Aggarwal 2008a]. It remains to be seen whether the governmental threat of parliamentary legislation imposing affirmative action mandates on private bodies will be carried out or if it is only a negotiating tactic to encourage voluntary action. If a legal framework is contemplated, the Parliament will be welladvised to follow the carrots-rather-thansticks policy of the Kundu report described above [Khaitan 2008]. With or without l­egal incentives, whether Indian corporate sector inculcates a culture of taking its s­ocial responsibility seriously remains to be seen. In any case, it is a development anyone interested in equality needs to monitor.

5  Institutional Mechanism These are decent proposals, but many good ideas have been scuttled by bad imple­ mentation. If each of them is implemented independently, along with all the others that we already have in place, we will have a regulatory nightmare on our hands. The Menon report recommends the setting up of central and regional EOCs. The Kundu report envisages the establishment of a diversity commission, boards and committees at the central, state and institutional levels respectively. Add to that the existing array of National Commission for SCs and STs, National Commission for Women, the Coordination Committees

Economic & Political Weekly  EPW   september 20, 2008

and Commissioners under the Persons with Disabilities Act 1995, National Commission for Minorities and their regional and local counterparts. With all of them tasked with achieving some aspect of equality, turf wars and bureaucratic redtape are inevitable. What is needed is a holistic approach to equality, with one independent and a­utonomous central equality commission, assisted by similar regional and local committees. The existing commissions can be merged into this single body to streamline their operation. The task will involve the amendment of several statutes and even the Constitution, but is essential for proper implementation of various dimensions of equality. A similar exercise was necessitated in the United Kingdom where the Equality Act of 2006 merged the pre-existing EOC, Commission for Racial Equality and Disability Rights Commission into a single Commission for Equality and Human Rights. Upsetting the e­ntrenched vested interests and massive bureaucracies will demand significant p­olitical will – but anything short of a rational restructuring of the implementation mechanism will defeat the noble objectives of these proposals.

6 Conclusions These recent conversations on equality are promising. The Menon and Kundu reports show that one can think about equality without necessarily drawing strict boundaries between beneficiaries and non-beneficiaries, between majorities and minorities, between “us” and “them”. These proposals appear to be fairer policies in comparison to reservations and have therefore greater prospects of a­cceptability.5 While fairness and acceptability are debatable, these two proposals certainly a­ffect a greater number of people than the reservations policy and in many more sectors. Even for dalits and tribals who were the original beneficiaries of the reservations policy, these new proposals will open new doors towards claiming full citizenship. How much is translated into reality remains to be seen. The obvious benefit of the reservations policy is that it is easy to implement. Jayati Ghosh (2006) argues in favour of reservations by citing low

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e­nforcement costs and easily identifiable and achievable, even if rigid, targets. None of the proposals discussed above can claim  that. While dealing with the private sector, these proposals impose far less restrictions on private enterprise than reservations would. Inasmuch as they prohibit unfair discrimination and provide incentives rather than penalty for pursuing d­iversity and corporate social responsi­ bility, it is hard to label them onerous or unfair to the private sector. These comparisons of the new proposals with the reservations policy should not lead us to think that this is an argument for doing away with reservations. Substantive equality will require a number of simultaneous measures to be undertaken – whether reservations should continue to be one of them is a decision that needs to be arrived at independently and after taking all its costs and benefits into consideration. But there is nothing intrinsic in these policies that prevents them from being launched alongside reservations. This new discourse is therefore not necessarily opposed to reservations, it merely transcends reservations as the sole vehicle t­owards an equal society. Neither should this article be seen as an endorsement of everything there is in the Menon and Kundu reports or of the functioning of the Nair Committee. While I e­ndorse the idea of an effective anti-­ discrimination law, diversity in public spaces and socially responsible corporate sector generally, the finer details in each of these proposals need extensive public debate before acceptance. Many of these initiatives are experimental – we must be willing to learn from other countries who have already implemented similar programmes as well as from our own mistakes. Nothing would be worse than these proposals becoming yet another entrenched government programme which are not subject to periodic review or i­mpact assessment. Finally, what is essential is that the government takes a holistic approach to the problem of equality rather than considering these various proposals piecemeal. A related debate on the regulatory mechanism needed to implement these proposals effectively is also necessary.

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This post-reservations discourse on equality has the potential to affect many more people, in a larger number of areas and, arguably, in deeper ways. A liberalising state, proliferating identities and enduring discrimi­nation demand that this discourse is t­aken  seriously. Notes 1 For a detailed analysis of the Equal Opportunity Commission Bill proposed by the Menon report, see Tarunabh Khaitan, ‘Dealing with Discrimination’, 25(10), Frontline, May 23, 2008, p 102. Available at http://www.hinduonnet.com/fline/ fl2510/stories/20080523251010200.htm 2 On discrimination on the basis of food-preference in particular, see Tarunabh Khaitan ‘Vegetarianism, Tolerance and Discrimination’, The Hindu, May 26, 2008. Available at http://www.thehindu. com/2008/05/26/stories/2008052653861000.htm 3 All figures in Tables 1, 2 and 3 (p 10) are taken from the United States Equal Opportunity Commission, ‘Indicators of Equal Employment Opportunity – Status and Trends’ 6 (2004) as cited in Stuart Ishimaru, ‘Fulfilling the promise of Title VII of the Civil Rights Act’ of 1964 36 University of Memphis Law Review 25, 26. 4 Grutter vs Bollinger, 539 US 306, 330 (2003) (internal notes and quotations omitted). 5 This is not meant to be a comment on the fairness or otherwise of the reservations policy. Although the debate over the fairness of reservations was a starting point of this article, I take no position in this debate.

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– (2008b): ‘PM Wants More Action in Affirmative Action’, Indian Express, July 12. Available at http:// www.indianexpress.com/story/334534.html – (2008c): ‘Special Group to Explore Industrial Possibilities’, Indian Express, July 13. Available at http://www.indianexpress.com/story/334843.html Ali, Zaheer (2006): ‘Of Quotas and Traps’, Economic & Political Weekly, December, pp 5304-06. Baruah, Sanjib (2003): ‘Protective Discrimination and Crisis of Citizenship in North-East India’, Econo­mic & Political Weekly, April 26, p 1624. Deshpande, Satish and Yogendra Yadav (2006): ‘Redesigning Affirmative Action: Castes and Benefits in Higher Education’, Economic & Political Weekly, July 17, p 2419. Ghosh, Jayati (2006): ‘Case for Caste-based Quotas in Higher Education’, Economic & Political Weekly, June 17, pp 2428, 2431-32. Khaitan, Tarunabh (2008): ‘Possibilities of Equality’, Indian Express, June 20. Available at http://www. indianexpress.com/story/325120.html Kundu, Amitabh (2008): ‘Report of the Expert Group on Diversity Index’, submitted to the Ministry of Minority Affairs, Government of India. Available at http://minorityaffairs.gov.in/newsite/reports/ di_expgrp/di_expgrp.pdf McCrudden, Christopher (2007): Buying Social Justice, Oxford University Press. Menon, Madhava (2008): ‘Equal Opportunity Commission: What, Why and How?’, submitted to the Ministry of Minority Affairs, Government of ­India. Available at http://minorityaffairs.gov.in/ newsite/reports/eoc_wwh/eoc_wwh.pdf Sachar, Rajinder (2006): ‘Report on Social, Economic and Educational Status of the Muslim Community of India’. Available at http://minorityaffairs.gov. in/newsite/sachar/sachar_comm.pdf Subramaniam, Kandula (2008): ‘CII Scraps Idea of A­f firmative Action Ombudsman’, Indian Express, May 28. Available at http://www.indianexpress. com/story/315392.html Thorat, Sukhdeo (2002): ‘Oppression and Denial: Dalit Discrimination in the 1990s’, Economic & P­olitical Weekly, February 9, p 572. – (2006): ‘Paying the Social Debt’, Economic & P­olitical Weekly, June 17, pp 2432-34.

Contemporary Education 10x2 (positive)

september 20, 2008  EPW   Economic & Political Weekly