‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
Locating Affirmative Action
Neera Chandhoke
Introduction
This essay bases its argument on the fundamental proposition that every society is
horizontally as well as vertically stratified. Horizontally, societies are stratified on the basis
of linguistic, caste, religious, and region-based groupings, each of which subscribe to distinct
but not necessarily discrete cultures. Vertically, societies are stratified on the axis of income,
access to land and material resources, monopoly over symbolic resources, education, and
professional skills. Modern, complex societies are therefore both plural and hierarchical.
Correspondingly, each group that possesses a distinct identity of its own will inevitably be
divided on the basis of class, i.e., it will be vertically stratified. We can take it as a given that
the complex of vertical and horizontal divisions consolidates inequality between groups as
well as within groups, leading to injustice and denial of democratic rights to those who
occupy marginal positions on the axis. Therefore, any society that is committed to justice,
equality, freedom, rights, and democracy, will have to negotiate the phenomenon of
horizontal and vertical inequality.
Consider, for instance, that on the horizontal axis, some religious or linguistic groups
will tend to dominate others—the Sinhala in Sri Lanka, Punjabis in Pakistan, and Hindus in
India and Nepal. Groups, it is important to note, do not become dominant only on the basis of
numerical strength. A particular linguistic, religious or caste group can dominate society even
if it is numerically smaller than other groups for a variety of historical reasons. On the
vertical axis, those who command ownership of material and symbolic resources will
dominate those who do not. In societies that are predominantly Hindu such as Nepal and
India matters are more complicated, for we find that the upper classes, which have access to
resources, education, and professional skills, will almost always belong to the upper caste.
And groups that are dominated will belong both to the lower castes and the lower classes.
The lower castes, in fact, are prevented from accessing material resources, such as the skills
provided by education, by reasons of caste. Further, an intricate system of social sanctions
under Hinduism has put into place an elaborate system of prohibitions: lower castes cannot
enter temples; they cannot access educational or professional skills; they do not command
social acceptance; and they cannot own resources such as land. Matters are different when it
comes to the upper castes, for they possess ready access to all the opportunities provided by
society, again by reasons of caste.
In effect, class and caste reinforce each other in these societies in a major way. There
is one notable exception, which is that even if some members of the lower castes do manage
to access educational or professional skills, enabling them to control material resources, they
do not acquire social acceptance easily. The lower castes are in effect doubly disadvantaged,
they are socially discriminated against and they are economically discriminated against. To
Neera Chandhoke is Professor of Political Science, University of Delhi, and Joint Director at the Developing
Countries Research Centre, University of Delhi.
‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
put it differently: economic discrimination flows from social discrimination. But even if
economic discrimination is mitigated to some extent, it does not follow that social
discrimination will cease to exist. It is this double disadvantage that is addressed by policies
of affirmative action.
I suggest, for reasons that are detailed below, that affirmative action policies should
be extended only to those groups that are doubly disadvantaged. Other measures such as land
reforms, income distribution schemes, fulfilment of basic needs, and welfare policies should,
in principle, be capable of addressing the concerns of those economically disprivileged. In
other words, whereas a variety of measures can be adopted to remedy marginality at the
horizontal and at the vertical level, affirmative action policies should be addressed only to
remedy the double disadvantage of caste and class. The notion of affirmative action should
not serve to drive the idea that economic and social marginality can be redressed by other
remedial measures that spring from our political imaginations. Nor are affirmative action
policies a substitute for the entire package of measures that address social and economic
marginalisation. Nor should the indiscriminate use of affirmative action policies come to
serve as a soft option either for the state or for groups that struggle for justice in society.
More importantly, wide-ranging remedial measures such as redistribution of land ownership,
which addresses rather the source rather than the symptoms of structural domination, may
actually prove more effective in the long run to guide a society into the path of justice. To put
it strongly: affirmative action policies should be taken seriously and employed sparingly. It is
only then that these policies can be justified. I stress this point because every policy that
constitutes an exception to the principle of formal equality, or the principle that people should
be treated with equal care and concern, needs to be constantly justified in the public domain.
There has to be very good reason for extending to a particular group privileges that are not
available to other groups. Correspondingly, if policies of affirmative action are employed
indiscriminately, or if they are applied to address all kinds of marginality, there is the very
real danger that the very notion of affirmative action will be de-legitimised in the public
domain.
The paper is divided into four sections. In the first section, I briefly survey the various
ways in which societies have dealt with cultural pluralism or the phenomenon of horizontal
stratification. In the second section, I deal with vertical stratification. The arguments in the
third section focus on the manner in which three countries: the US, Malaysia and India, have
institutionalised affirmative action. In the fourth section, I evaluate the concept of affirmative
action itself. In sum, I wish to suggest that affirmative action is just one of the ways in which
societies can negotiate economic, social, and political marginality; it cannot and should not
be identified with the whole universe of remedial action.
I
Horizontal stratification
Since the decade of the 1980s, which was to witness what came to be known euphemistically
as the ‘global ethnic explosion’, political theory has increasingly been pre-occupied with the
one question that looms large over the politics of multilingual, multi-religious, and
multicultural societies. The question is the following: how can people who subscribe to
discrete and different cultures live together in a society peaceably and in some kind of
harmony. Correspondingly, what kind of political institutions can deliver justice to all in
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
complex and plural societies? Are universal human rights adequate for the task of
empowering minorities, who are by definition vulnerable,1 or do these groups need special
rights in addition to universal rights of citizenship? In short, do we need more differentiated
and nuanced theories of citizenship for plural societies than the ones available to us in the
tomes of classical political theory? And above all: is the model of the unitary, homogenous
nation-state, which came to us from Italy and France in the nineteenth century, a viable
option for multicultural societies?
The concerns of political theory have in effect shifted drastically and rather
dramatically. For modern political theory has been absorbed with a different set of issues
altogether: the citizen as the bearer of rights, universality, political obligation, and
individualism. Modern concerns themselves are grounded in three basic presuppositions:
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Public and private spheres of individual and collective existence are distinct and
separate since each of them is marked by a different and mutually exclusive logic.
Whatever individuals do in their private spheres: follow their own religion, engage in
practices that are specific to their communities, and speak their own languages, when
they enter the public sphere these particularistic2 activities identities are left at home,
hung up on the umbrella stand as it were.
It is assumed that the public sphere possesses certain properties. It is inclusive
inasmuch as no one is barred on any grounds that cannot be morally defended, such as
race, caste, gender, or class. It is, therefore, the domain of universality inasmuch as,
here, individuals are not identified by their specific identities as members of a caste,
creed or a language group but by their universal identities as rights-bearing citizens.
The division between the private and the public in effect dovetails neatly with the
division between particularistic and universal identities.
Both civil society and the state are neutral between contending notions of the good.
Neither the state nor civil society is expected to either represent or privilege any
specific language, religion, or affiliation. In theory, both transcend all particularistic
allegiances and identities.
It is not surprising that these pre-occupations were to intensify in the political time of the
nation state since the concept of the nation state presupposes the main two principles:
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The first is that the nation is the exclusive source of all allegiance, loyalty, and
political passions.
The second and corresponding principle is that the individual derives his or her
identity from the nation, and not from the groups he or she was born in. The idea that
the individual may bear fidelity to institutions other than the nation has been for long
regarded with suspicion.
1
I employ the concepts of majority and minority not in terms of numerical strength alone. A majority group is
one whose values dominate the symbolic construction of the public sphere. Correspondingly, minorities by
implication are those groups, whose ways of life do not find reflection in the public sphere.
2
I use particularistic in terms of practices and identities that are not uniformly participated in by all members of
a polity. Citizenship in a democratic state is a universalistic identity and religion would be a particularistic
identity.
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
The concept of the nation in other words was expected to a) legitimise the state, and b) to
secure effective political institutions. For the capacity of state institutions to function
effectively can be greatly imperilled when particularistic identities jostle for space and power
through competing rhetoric, resulting in instability, discontent and anomie. The formulation
proved so attractive that the hyphen, which connects the conceptual worlds of the nation and
the state (the nation-state) came to rule politics across the world.
Attracted by the connection between nation, state, legitimacy and effectiveness, states
across the world have tried to weld different groups into one nation and into a common
citizenry through designer policies—the imposition of one language, for instance. But
attempts to homogenise different cultures and to create a national culture have proved
counterproductive. In fact the attempt to forge strong and unified nations by suppressing
minority cultures has rebounded sharply, raising in the process some grim questions about the
entire project. The failure of this project was first evident when Bangladesh separated from
Pakistan in 1971 on the question of language. Other historical failures followed in rapid
succession. Pakistan has been rocked by discontent even as the Mohajirs, the Baluchis, and
the Sindhis protest against the domination of the Punjabi-speaking elite. Sri Lanka has
degenerated into civil war over the issue of the Tamil language and the politics of ‘Sinhala
only’. In India, the attempts to make Hindi the national language in the 1950s and 1960s
prompted not only serious disturbances in South India, but also threats of secession.
Therefore, by the end of the twentieth century scholars were acknowledging with some regret
that the nation state might prove one of history’s most serious mistakes. In other words, the
idea of the political community had to be opened up, made more sensitive to the identities of
various groups, and pluralised. Since the political community contains more than one cultural
community, we should realise the phenomenon of multiculturalism.
In the West, different preoccupations were simultaneously to lead to the idea of
multiculturalism. Firstly, demographic changes in Europe and in the US, caused by massive
migrations from the ‘third world’ raised questions about the manner in which the national
culture was defined. Secondly, issues of political separatism that had been kept off the
political agenda such as the right of the people of Quebec to self-determination in Canada,
Catalan nationalism in Spain, or Irish and Scottish nationalism in the UK re-surfaced and
demanded negotiation. Thirdly, the increasing visibility of the indigenous people in Canada,
New Zealand and Australia, and their demand not only for land rights but other rights for the
‘first people’ led to major political renegotiations. All this called into question the viability of
the nation state concept.
Many problems have been identified with the project of building homogenous nation
states. The primary problem is that the so-called ‘neutral’ state has come to be dominated by
one language, one set of belief systems, and one religion, or the phenomenon of what came to
be termed as majoritarianism. The consequences have been serious:
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Majorities have proved not only impatient with the languages and the practices of the
minority groups; they actively seek to devalue the latter.
Even as majority groups deny the legitimacy of minority identities, represent them
either as subversive or as harmful to something that is typed as ‘national’, and insist
that such groups assimilate into the culture and the language of the majority,
minorities resist this brutal flattening out of their identities. Therefore, when majority
groups contend that the Tamils in Sri Lanka, the Quebecois in Canada, or the
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
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Mohajirs in Pakistan abdicate their specific languages, we see the makings of a
politically explosive situation. If we do not recognise these claims on the body politic
the consequences could be serious. In 1993, for instance, Ted Gurr identified 275
politically significant ethnic groups in his ‘Minorities at Risk’ category, of which 57
were in open rebellion, with 21 fighting medium- to large-scale guerrilla wars like the
KLA in Kosovo.3
Even as we saw that the majority group tends to monopolise the gains of office, of the
market, and of society it was realised that universal rights of citizenship were not
enough to empower minority groups who were debarred from these spheres—think of
the Tamil community in Sri Lanka who was so debarred through language policies.
In sum, the shift from the recognition that the political community is also the cultural
community to the idea that the political community contains more than one cultural
community proved decisive for re-addressing the problems of the nation state. The realisation
that a given political community contains many cultural communities, some of which are in a
minority, was to first lead scholars away from the idea of a homogenous nation state to the
idea of pluralism and multiculturalism. Second, it came to be realised that cultures were
important for the members of the group and that these cultures need to be respected and given
institutional recognition. Third, since minority groups were almost inevitably underrepresented in the national space, special measures had to be devised to ensure their
representation in forums of decision-making. The notion of the nation was in effect pluralised
through institutionalising the right of various communities to their culture and their language.
In sum, the main task before any society that seeks stability and that pursues justice is
to create conditions for the peaceful co-existence of different groups. For this, it has to
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open up the question of who owns the state, and
ensure that no one group has a monopoly over its resources both symbolic and
material. Towards this end various societies have attempted to institutionalise
different modalities of power sharing, of which I enumerate but some.
Federalism
Ethnically plural societies have normally opted for a system of federalism on the basis of
both territorial contiguity and ethnic identity. In India, if the first round of state formation
was based on language—from Andhra Pradesh to Punjab— from the mid-1950s to the mid1960s, the second round of state formation has been based on tribal identities—from the
states of Northeast India to Chattisgarh, Uttaranchal and Jharkand. In the West, Belgium and
Switzerland provide examples of federal systems, where constituent units of the federation
are based on territory as well as language. In Belgium, three political regions—Flanders,
Walloon and Brussels—and two language groups, the Flemish-speaking and the Frenchspeaking, share power. In contrast, federalism in the US is based on territory and not ethnic
identities.
It is true that in some political systems we find little correlation between federalism
and ethnic diversity. For instance Austria, Australia, Germany and Venezuela are monoethnic (that is, the minorities are of little political significance in these countries) but federal.
3
Ted R. Gurr, Peoples vs States: Minorities At Risk in the New Century, 2000, Washington DC: United States
Institute of Peace.
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
On the other hand some multi-ethnic societies are not federal such as Mauritius, Botswana
and Indonesia. However, scholars tend to agree that there is a generalised relationship
between ethnicity and federalism in societies that are large and diverse such as India and
Nigeria. Or that federalism is a desirable option for plural societies because constituent units
are granted autonomy in matters crucial for the identity of the inhabitants of that unit. In
India, the multi-language formula has been designed for precisely this purpose.
The extent of autonomy that constituent groups enjoy can vary from country to
country. Canada, for instance, in 1999 created a new territory Nunavut for the ‘first people’.
The territory, which consists of 20 per cent of the total land area of the country, was granted
not only a considerable measure of self-governance, but also control over the area’s rich
natural resources for the 22,000 Inuits who reside there. The creation of the autonomous
territory was of great political significance because it meant turning over land that is rich in
resources to the inhabitants of the area. In India, some areas, which possess a distinct ethnic
identity have been granted an autonomous status within the federating states of the Indian
Union—Ladakh and Gorkhaland. This seems a viable option for groups that are territorially
concentrated and that possess a distinct cultural identity, such as the janjatis in Nepal.
Power sharing
The second option that has been taken up by many societies is that of institutionalisation of
power sharing. This is expected to generate broad-based ruling coalitions, which include all
major groups in society. Political institutions, in other words, not only acknowledge group
membership but also allow for political bargaining among the elites of these groups. Some of
the measures that have been adopted are given below.
The adoption of the single transferable vote electoral systems (known as the Hare
system and in Australia as the Hare-Clarke system) that override the ‘first past the post’
principle as well as the idea of single-member electoral constituencies. It has been found that
systems that institutionalise proportional representation ensure that various groups are
represented in the legislature. In Australia, voters rank their preferences for candidates. If
there are m seats to be filled and n candidates the winning candidates must receive a quota of
votes. If no candidate receives a majority of first preference votes, the candidate with the
fewest first preference votes is eliminated. The ballots are reallocated to the next candidate on
the voters list. This process continues till some candidate receives a majority of first
preference votes. Northern Ireland has also adopted the system of the single transferable vote,
which a) requires the ranking of candidates in the ballot, and b) provides that the winning
candidate gets a minimum quota of votes. Therefore, candidates with the fewest first
preferences of votes are eliminated, and the ballot is transferred till candidates reach the
specified quota or until the pool of eligible candidates is brought down to as many candidates
as there are seats remaining to be filled. This system allows for more than one party to come
to power, ensuring that all parties are represented in the legislature.
Some countries have adopted measures to ensure that all the groups within the state
are able to share office. In Belgium, for instance, the central government has to have an equal
number of Flemish- and French-speaking ministers. The same rule applies to the highest
courts and to the upper ranks of the army. Pre-civil war Lebanon had provisions guaranteeing
that not all office holders belonged to the same religion.
But this formula, it is important to note, can work both ways. That is, it can also
ensure that some groups monopolise power. Take the example of Fiji, where the conflict
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
between native Fijians and the Indians led to the 1990 constitution based on communal
arrangements inasmuch as Fijians were given a guarantee of a majority in the legislature.
This was institutionalised even if changes took place in the demography of the country.
Consequently, 23 out of 71 seats in the legislature have been reserved for native Fijians and
only 19 for those of Indian descent. These are unstable rules, for they preserve a fixed status
quo despite changing demographic realities. In 1999, the Fijian Labour party won not only 19
of the Indian communal seats but also 18 of the 25 geographically defined open seats (each
Fijian voter using the alternative vote system). Thus Indians controlled 37 out of the 71 seats
in the legislature. The leader who came to power was Indian in origin. This bred expected
consequences for even as he became the prime minister in 2000, a coup was led by a group
that demanded that Fijians should control Fiji. At the other end of the spectrum is the
‘communal roll’ in New Zealand, where only members of a particular group can vote for
designated offices, as in the case of the Maoris.
Constitutional protection of rights
One viable way of ensuring that minorities are not at risk is to protect their rights through the
constitution. Amendments to the provisions that protect language rights in the Spanish
Constitution require a two-third vote in both chambers. Once the amendment is adopted the
legislature is automatically dissolved and the amendment is submitted to the people in a
referendum for ratification. In the US the provision that each state must have at least one
representative in the Congress cannot be amended. And in India minorities have rights to
their culture and their educational institutions as per Articles 29 and 30 of the fundamental
rights chapter of the constitution. On the other hand, the 1999 constitution in Fiji has
safeguards for native rights and customs, the amendment of which requires supermajorities in
parliament (approval by a majority of three quarters) and concurrence of the council of
chiefs. This ensures the rights of the native Fijians are protected.
The language rights of various groups have been protected by other means in various
countries. Switzerland has four official languages whereas 22 out of 26 cantons are officially
unilingual, three are bilingual, and only one has three official languages. In Belgium, the
natural division of the country is into a Flemish-speaking area, a French-speaking area, and a
bilingual area around Brussels, but school policies encourage bilingual education in basic
literacy. Canada is officially bilingual.
The alternative to power sharing formulas is, as we have seen all over the world,
discontent, which translates into near civil war in some countries. However, it is also
necessary to prevent the consolidation of apartheid since modern societies share both a
common political system and a common market. If minority groups are pushed into
territorially concentrated areas, and if their political and economic energies are concentrated
only in a small portion of the country, it is more than likely that the dominant group will
continue to monopolise both political and economic transactions. Furthermore, extreme
apartheid can generate secessionist claims. However, secession is not always a preferable
choice. It leads to a proliferation of states, which are not necessarily economically viable.
And secession does not always guarantee the rights of ethnic minorities within the new state.
For instance, Russians, who form 30 per cent of the population in Estonia and Latvia and who
are territorially concentrated, are regarded with suspicion and seen as interlopers and as
colonisers. In fact, Estonians have proved reluctant to re-define their state along federal lines.
The alternative to ‘moving borders’, which has led to genocide, expulsion and hate in history
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
is some formula that guarantees identity and which prevents monopolisation of power by one
ethnic community.
Ethnic-based political arrangements
1. Plural legal systems
2. Group rights
3. Separate schooling
4. Ethnic-based allocation of jobs that
ensure representation for all groups
5. Ethnically rooted federalism with
considerable autonomy for units
6. Ethnic representation in elections
7. Autonomy for cultural groups in defined
territorial areas
Integrative institutions
1. Legal system emphasising individual
rights as well as group rights
2. Distribution of jobs on merit as well as
protections for marginal groups
3. Multiple language formulas
4. Multi-ethnic coalitions and power
sharing
5. Territorial federalism
6. Single transferable vote in multi-ethnic
constituencies
7. Alternative vote in multi-ethnic
constituencies
In sum, even as societies institutionalise power-sharing arrangements it may be necessary that
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Elites concentrate on building strategies that crosscut cleavages and that thereby
mitigate ethnic divisions.
Elites pursue inclusive, multi-ethnic coalitions and policies that promote relative
equality in representation, appointments and distribution.
Elites promote practices that regulate competing group claims within a democratic
framework fairly.
Political arrangements incorporate a mix of institutions, some leading to collective
action and others to group protections.
Group representation in parliament and individual and group rights are combined
with opportunities to the disadvantaged to profit from these opportunities.
It is only then that the above two perspectives—that of ethnic based and integrative
solutions—can be brought together to create a just society. It is only then that a good
institutional design can function well. It is only then that special rights that are granted to
minority cultural groups can function within a general political framework that delivers
justice and rights to all. And it is only then that the interests of the whole community can be
furthered even as minorities are protected within the community.
II
Vertical stratification
No matter how much autonomy or rights are guaranteed to cultural, religious and language
groups, there is always the danger that elites within the group will pre-empt the privileges
afforded to the group in question. For any given group is not only hierarchical in
composition, the leadership is exclusive when it comes to power. Along with inter-group
inequality we, therefore, need to consider intra-group inequality and design measures to
redress it. That is because economic and social deprivation, cutting as it does across group
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
boundaries, serves not only to create but also to reproduce a class of the underprivileged, the
marginalised and the oppressed. The negotiation of the tensions that arise by the fact that
different cultural groups live together in a definite territory can be managed by the sharing of
power. But the tension between the haves and the have-nots also has to be managed through
the same measure.
The first strategy of a democratic society is to equalise power sharing based on the
recognition of plurality and on notions of justice between groups. The second strategy that it
needs to follow is based on notions of justice within groups. Both strategies are designed as
remedial measures—to ensure that individuals and groups have the capacity to compete with
others in the political and in the economic system. For members of groups that are
discriminated against are just not in a position to compete with others in multiple arenas—an
example is the Tamil community in Sri Lanka, which has been excluded from opportunities
through language policies. But individuals who have been economically deprived in and
through history also cannot compete within given arenas. How can an individual who has
never had access to education or to professional skills compete with an individual who has
been privileged in both these domains? Therefore, historical deprivation has to be negotiated
through the provisions of remedial measures that improve the condition of those who are the
worse off in society. Common sense tells us that those who are better off than the others do
not need to be ‘empowered’ through special protections, but those who are worse off do need
to be so empowered. Therefore, remedial measures apply only to the deprived; they are not
universally applicable to all.
At first glance, the idea that different groups have to be treated differently seems
completely contrary to the principle of formal equality or the principle that each gets one. The
problem is that formal equality that dictates an equal division of whatever it is that we are
distributing does not take into account background inequalities or the fact that our
constituency is unequal. Take the example of a local government distributing 10 acres of
surplus land among 10 peasants. The principle of formal equality tells us that each peasant
should be granted one acre of land. But if four of the 10 peasants among whom land is being
distributed already possess 5 acres of land each, then the distribution of surplus land on the
principle that each gets one will reproduce inequality. For ultimately 4 of the peasants will
have 6 acres of land while the remaining 6 will have only 1 acre of land. The paradox of
formal equality is that it reproduces inequality since it does not take into account background
inequalities. A more substantive notion of equality would suggest that differentially placed
people should be treated differently, or that the worse off should be given resources that the
better off in any case do not need.
The question that arises then is: why is a society obliged to remedy historic
disprivileges through the grant of social and economic rights? There is a simple answer to
this. The fact that individuals are human entitles them to be treated in a particular way—with
respect and dignity. Conversely, human beings should not be treated in certain ways—be
tortured, imprisoned, maimed, raped, harassed, or subjected to any kind of humiliation and
indignity. This is because human beings are of value, and more importantly all human beings
are of value. This is the main criterion that divides a democratic society from an
undemocratic one. In an undemocratic society only certain human beings who belong to the
ruling elite or who are members of privileged castes, races, or gender are considered to be of
worth. Others who do not belong to this category are determined to be either not of worth or
of lesser worth.
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
At this point of time we do not need to argue that democratic societies are better than
undemocratic societies. It is self-evident. Nor can we empirically prove the claims that
human beings are of worth, and that all human beings, no matter howsoever ordinary they
may be, are of equal worth. We cannot prove them in the way that we can prove that a person
can walk if she or he has two limbs. Nor do we need to do so. For these are moral
propositions that do not need empirical proof. In fact, they are so self-evidently moral that
those who do not believe it should be asked to prove their case. The onus of demonstrating
this belief rests on them. The moral and political implications of the proposition that human
beings are of value are of consequence since we are in effect saying ‘This is how human
beings have to be treated, this is their due: below this we cannot fall.’
There are two ways to ensure this—civil and political rights, and social and economic
rights. Civil rights reiterate and re-inscribe our commitment to the moral and political
proposition that because human beings are of value they will not be subjected to any kind of
treatment that may harm them in any way. Correspondingly, civil rights constitute constraints
upon the power of a given government to do with its people as it wills. They protect the right
of the people to live their life in the way they think is best—pursuing their life plans or
projects, entering into warm and rewarding relationships, making their histories, howsoever
badly, or speaking back to history. Civil rights in other words protect the right of the people
to make their own lives worthwhile with some degree of freedom.4
But recollect that the right to make one’s life worthwhile is hardly enough if the
person does not possess the basic wherewithal to do so. A person may be theoretically free to
do whatever she thinks may make her life worthwhile. And yet she may not be able to do so
for other reasons—because she has never been to school, or never been in a position to access
the basic requirements that are needed to write. After all in order to read and write one must
have a certain amount of literary competence, one must be able to have access to education,
to books whether in the library or in the bookshops, attend literary discussion groups, or be a
part of a community that appreciates reading and writing. Therefore, we may have a budding
literary giant, say the child of a poor landless labourer, but she will never make her life in the
way she wants to, simply because she cannot afford to do so.
A moving story in one of India’s weekly magazines may illustrate what I am trying to
suggest.5 A retired university professor noticed that the woman he had employed as a
domestic help performed her other chores quickly and efficiently, but she would linger when
it came to dusting his collection of books. Her busy hands would still as she touched his
books longingly and with great care. Upon been asked whether she had ever been to school,
she admitted that she had attended school intermittently till the age of twelve. At that age she
had been married off to man fourteen years older than her and who subjected her to great
domestic violence. She had subsequently escaped to the city along with her three children.
Her kind-hearted employer, understanding and appreciating her hunger for books, not only
allowed her to read his literary masterpieces in Bengali, but also gave her a pen and a
copybook to write. Once she, after considerable hesitation, began to write, words poured out
of her in a torrent. She wrote between chores, she wrote late at night, she wrote sitting on the
floor, she wrote standing at the kitchen table. At the end of it she had a novel Aalo Andheri
4
We assume that human beings can make their lives in the way they want to, simply because they are both
rational and moral. No one who did not have faith in the ability of human beings to make their own lives, or be
self-determining, would recognise their right to do so.
5
Sheela Reddy, ‘The Diary of Baby Haldar’, Outlook, 24 February, 2003, p. 64.
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(Light and Darkness), which when published, went on to become a bestseller. It is being
talked of as India’s answer to The Diary of Anne Frank. The novel is now being made into a
play, into a film, and it is being serialised in a literary magazine. And this happened simply
because an empathetic employer allowed his domestic help to read his books and because he
gave her a notebook and a pencil to develop her talent for writing.
The point I am trying to make should be clear by now, individuals not only need
freedom to make their lives worthwhile. The protagonist of our story above had some
education; therefore, when given the chance to access books, paper, and pen, she could author
a best-selling novel based on her life. But there are thousands of children in South Asia who
never get a chance to go to school, and who consequently never get a chance to make their
lives worthwhile. No one intentionally prevents them from doing so. They have the right to
do what they want with their lives. The wherewithal that can help them write is there for the
asking—schools, libraries, book stores, literary discussion groups, seminars, and public
lectures. And yet these remain inaccessible simply because many individuals who suffer from
want and deprivation are not in a position to access them.
In sum, civil rights protect access to one kind of good that is freedom; social and
economic rights protect access to another kind of good, that is basic needs. Without civil
rights that protect the freedom of human beings, the right of human beings to make their life
worthwhile is neutralised. Without social and economic rights the right of human beings to
make their life worthwhile is equally neutralised. Civil rights cannot give us the wherewithal,
which is needed to make our lives of value. And social and economic rights cannot give us
the freedom, which is needed to make our lives worthwhile.
Of course no proponent of social and economic rights demands that everyone should
get the same income or their just deserts. People have to be rewarded for their entrepreneurial
activities, their skills, and their hard work. These rewards allow them to access the conditions
that help them realise their humanity, and to which they have a right by reasons of right. All
that defendants of social and economic rights ask for is that everyone should get the chance of
exhibiting their entrepreneurship, their skills, and their capacity for hard work. That is
everyone should have a chance of accessing the goods—freedom as well as basic material
needs—which are essential for them to do what is it that they want to do with their lives. And
if certain sections of society cannot access these goods, then the state must enable them to do
so, simply because the state exists for the good of the people.
Redistribution of resources in order to make social and economic rights meaningful is
therefore necessary to allow people to fulfil their basic needs. This allows human beings to
live lives that are worthwhile. Below the level of basic needs, human beings have a right to
individually lead lives that can best be thought of as sub-human. The rights to basic needs
would thus include a right to nutrition, a right to shelter, a right to health, and a right to
primary education. These rights, except the right to education, are subsistence goods, which
meet bare physical requirements. Education is basic to our understanding that there exists a
world of possibilities that every individual can aspire to. If a society is committed to
removing economic marginality, it will have to provide goods that meet basic needs, adopt
land reforms that equalises land distribution in society, implement income-generating
schemes, and institute poverty alleviation measures. Each individual who is poor, needy,
impoverished, starving and homeless has to possess access to the basic goods required for her
needs; this is the minimal we can do to ensure that no one lives a life that is sub-human.
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However, within impoverished and poor people we find that some sections are worse
off than the others because they are doubly disprivileged through both caste and class, such as
the dalits. Dalits, as noted above, are not only economically discriminated against; they are
also socially discriminated against. Social discrimination is the cause of economic
discrimination. But even if dalits are economically empowered, they continue to be socially
discriminated against. It is this double disadvantage that needs to be remedied by the
adoption of affirmative action policies. Affirmative action policies that reserve seats in
educational institutions, that ensure jobs, and that guarantee legislative representation are
meant to address the problem of social exclusion, discrimination, and economic
impoverishment through the adoption of affirmative action policies. However, these policies,
it is important to note, supplement not replace other remedial measures such as land reforms
and income-generating schemes that address the generic problem of poverty.
To phrase it differently, whereas remedial measures that redress the fact of poverty
should be in principle available to all those who are economically marginalised, affirmative
action policies should be made available to the dalits. In India, originally reservations in
educational institutions, jobs in the public sector, and in legislative forums were meant for the
scheduled castes and the scheduled tribes. I focus in this paper only on the scheduled castes,
or the dalits, but the argument should in principle be applicable to the scheduled tribes as
well.
The experiment in affirmative action policies has fetched mixed results, but before I
look into that in the fourth section, a brief exploration of the manner in which affirmative
action policies have been conceptualised and institutionalised in three countries: India, the
U.S, and Malaysia may be in order.
III
Institutionalising Affirmative Action
United States
In the US affirmative action policies have been applied to ameliorate the condition of ethnic
minorities who are doubly disprivileged by reasons of both race and class. The adoption of
affirmative action policies was a product of a combination of events: the civil liberties
movement and a progressive Supreme Court, which responded to the surge of discontent and
protest that characterised the decade of the 1960s in the US. The move towards affirmative
action in education and in employment both in the public and the private sector marked a
significant turn in US politics and jurisprudence. For the Supreme Court of the US had, since
the late nineteenth century, ruled that the constitution of the US is colour blind (Plessey vs
Ferguson 1896). Up to the 1950s the court had used this interpretation to strike down any
complaint of racial discrimination. With time, however, the Supreme Court was compelled to
recognise the deep-seated contradiction between equality of opportunity that was granted by
the Fourteenth Amendment to the constitution, and racism on the one hand and the denial of
rights to Native Americans who had been displaced on the other.
In 1954, came the historic ruling by Supreme Court on the appeal by Brown and other
black children against their exclusion from white schools in Kansas, South Carolina and
Virginia. The Federal district court had dismissed the appeal on the basis of ‘separate but
equal’ as expounded in the 1896 Plessey vs Ferguson case. But the Supreme Court reversed
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the ruling of the lower court and reversed social exclusion, basing its decision on the 14th
amendment. In the same year and on the same day, Justice C.J. Warren ruled to the same
effect in Bolling vs Sharpe. By ruling that black children should be granted admission to
white schools, the court went against the separate but equal principle of Plessey. This was to
open the doors for an offensive against racial segregation as well as initiate the desegregation
process.
The phrase ‘affirmative action’, however, was first used in an executive order signed
by President John F. Kennedy in 1961. The order, which followed a number of such orders
issued by every president since F.D. Roosevelt, required government contractors not to
discriminate on basis of race, creed, colour, or national origin in matters of employment. In
1961, a proviso was attached that stipulated contractors to ‘take affirmative action to ensure
that applicants are employed and employees treated during employment without regard to
their race, creed, colour, or national origin’ (italics mine). It is of interest to note that the
injunction was negative rather than positive. The court did not rule that the claims of AfroAmericans and other racial minorities should be positively considered in cases of
employment, but that the employers should not practise racism when it came to recruitment.
It was the Civil rights Act of 1964 that introduced affirmative action into the political,
juridical and administrative language of the country. The famous Title 7 of the act makes it
unlawful for an employer to make employment decisions about an individual on the basis of
race, colour, religion, sex or origin. In some circumstances an employer may base hiring
decisions on religion, sex, or origin, if that factor is a bona fide occupational qualification
reasonably necessary for the operation of that business or enterprise. Affirmative action
policies were in other terms attached to anti-discrimination or anti-racist policies. Whereas
the voting rights that were granted to Afro-Americans by the Act of 1965 were colour blind
and gender neutral in their phraseology, they were implemented in terms of affirmative
action.
Under the momentum of the movement for civil liberties, a succession of civil rights
laws and regulations, administrative rulings, and affirmative action programmes were
introduced in the country. Subsequently, the courts were to repeatedly rule that preventing
discrimination was not enough, and that Title 7 invalidated existing neutral criteria such as
intelligence tests, if they excluded minorities, unless these tests were necessitated by the
nature of the employment. For instance in Griggs vs Duke Power Co 1971, the court ruled
that ‘good intent’ of employers was held to be insufficient, if it failed to ‘redeem employment
procedures or testing mechanisms that operate as ‘built-in head winds for minority groups
and are unrelated to measuring job capabilities’. In short, employers had to institutionalise
selection criteria that did not screen out minorities and women. Conversely, selective
procedures had to incorporate mechanisms that compensated for the adverse impact of builtin prejudices on minority racial groups. In other words, the disadvantages of ethnic
inequalities had to be redressed. For this purpose the equal protection clause of the 14th
amendment—the state shall not deny to any person within its jurisdiction the equal protection
of the laws—was employed to ensure that the system of hiring employees did not
discriminate against women and ethnic minorities. The provisions were in time to be applied
not only to Afro-Americans but also Hispanics and other racial groups.
The following features of affirmative action policies in the US are of some interest.
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ƒ
ƒ
ƒ
Affirmative action in the US means equal opportunity for all in employment,
education, promotion, business, and governmental contracts. It does not involve the
institutionalisation of quotas based on race (Regents of University of California vs
Bakke 1978, and Grutter vs Bollinger et al 2003).
The candidate chosen under affirmative action policies has to fulfil the criteria laid
down for the job or for education. Her race or her gender is an additional factor.
Both the public and the private sector had to adopt affirmative action policies in
educational institutions and in recruitment.
The policies of affirmative action impressed a notable development in American politics
inasmuch as they challenged the orthodoxies of the ‘melting-pot thesis’ as well as notions of
‘colour-blind’ policies. The defenders of affirmative action argued that as long as race was
used as an instrument of oppression, and as long as discrimination derived from racial group
membership, remedies should be formulated in terms of groups. Under the impact of the civil
liberties movement that mounted a sustained protest against entrenched racism, and under
rulings of progressive justices of the court, institutions set aside goals and timetables to
ensure increased diversity in recruitment. At the same time, care was taken to see that no
reverse discrimination took place.
Given the fact that affirmative action policies were being employed to bring in groups
that had been marginalised for long into educational institutions and into the professions, it is
not surprising that American society in time witnessed a severe backlash against these
policies, with liberals joining conservatives in protesting against them. This was more than
evident when voters in California undertook a popular initiative to adopt the California
Proposition 209 in 1996. The Washington initiative 200 followed in 1998. Both these
propositions, which, note, were the product of popular initiatives, prohibit affirmative action
in state matters. That is they prohibit the government from giving preferential treatment to
any individual in public employment, public education, or public contracting on basis of race,
sex, colour, ethnicity or origin. In both these cases it was civil society rather than the state
that was to roll back affirmative action programmes and prohibit institutions from adopting
affirmative action in admissions and in recruitment.
Secondly, after the retirement of Justices William Brennan and Thurgood Marshall,
both known for their progressive views, the court has been unsympathetic to affirmative
action policies on two main grounds. Firstly, the court has ruled that if no instance of past
discrimination can be established, affirmative action policies are not justified. Secondly, if it
cannot be proved that the intention of an act or of a policy is discriminatory, it cannot be
struck down on the basis that it is discriminatory, even if the outcome is discriminatory.
A recent decision of the Supreme Court of the US rolling back much of the gains of
the civil liberties movement in the 1960s makes this explicit. The case is as follows: till 1990
the state of Alabama had allowed candidates to take the written driver’s test in more than a
dozen languages. In that year, the state legislature reversed this policy and adopted an ‘Only
English’ policy. Aspirant drivers could give the test only in the English language. On behalf
of Martha Sandoval and several thousand Spanish-speakers, lawyers from the Southern
Poverty Law Centre sued the state on the matter. A federal judge in Alabama and the US 11th
Circuit Court of Appeals in Atlanta agreed that the policy was discriminatory. Alabama’s
attorney general appealed against the ruling on the grounds of state’s rights. The case of
Alexander vs Sandoval came up before the US Supreme Court. In a landmark judgement on
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the 24 April, 2000, the court ruled that private lawyers cannot sue states, schools and colleges
for policies that have a discriminatory effect (as opposed to discriminatory intentions) on
blacks, Latinos, and other minorities.6
In a 5-4 ruling, the court, neutralising much of the gains of the civil rights act of 1965,
posited a distinction between intention-regarding and outcome-regarding policies. Agencies
that receive federal funds can be sued if they deliberately discriminate against people on the
base of racial or national origin, but they cannot be sued on grounds of effects that were not
intended. Justice Antonia Scalia speaking for the conservative majority on the bench stated
that courts had been wrong for 35 years in allowing private suits as a means of enforcing civil
rights guarantees, ‘We hold that no such right of action exists.’ This ruling, as commentators
agree, cut back drastically on the right of people to take the government to court for failure to
uphold affirmative action programmes. People can no longer file private lawsuits against
discriminatory policies. The Supreme Court has ruled that it protects persons not groups, and
Justice Scalia has further ruled that there is no such thing as a creditor and a debtor race.
What needs to be noted is that if in the US, affirmative action policies were the
product of popular and sustained mobilisation by civil society groups in the 1960s, the
rollback of affirmative action policies is equally the product of massive mobilisation by civil
society groups. In fact, American society is deeply divided when it comes to affirmative
action, with the opponents of this policy attacking it as a violation of equality, and the
defenders arguing that it upholds the principle of substantive equality. Affirmative action it is
evident has not fetched many defenders in the US.
Malaysia
Malaysia has also experimented with affirmative action policies, but in a dramatically
different way to that of the US and India. In Malaysia, affirmative action has been employed
to protect the rights of the Malayan people, who form the majority of the population. This is
due to many reasons, but in the main, it has to do with the country’s demography. For
Malayan society is a complex intermix of Malayan, Chinese, and Indian people. The 1930
census showed that in terms of numbers, the combined Chinese and Indian population
outstripped the Malayan population. Since it was widely felt that this imbalance contributed
to unemployment, the issue of immigrants versus the Malayan people began to be politicised
in the beginning of the twentieth century. The resultant tension led to the adoption of
immigration control in 1933, which was followed by the repatriation of the Chinese and
Indians. This allowed the Malayans to enter sectors hitherto monopolised by the two
communities such as rubber plantations and mining.
By the Second World War, the Malayan Bumiputras (‘sons of the soil’) in the
peninsula regained their numerical strength of 56.5 per cent, with the Indian community
comprising 10 per cent of the population, and the Chinese 32 per cent. In the country as a
whole the Malayans (including the Bumiputras and the tribals) formed 60 per cent of the
population, with the Chinese constituting 28 per cent and Indians 7.9 per cent. But colonial
policies continued to exacerbate tensions. The British had ensured stability by entering into
alliances with the aristocracy. The rest of Malayan society was kept quiet through the
institutionalisation of special protections. The Malayan reservation act of 1913, for example,
protected the peasantry by prohibiting the sale of land to other communities. It was further
6
David. G. Savage, ‘Supreme Court Scales Back Part of ’64 Civil Rights Act, Los Angeles Times, 25 April,
2001. p. 1.
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stipulated that plantation crops could not be grown on reserved land. These policies, however,
bred contradictory results. Even as large tracts of land were reserved for the Malayan
peasantry, the measures actually guaranteed that the Malayans were confined to the agrarian
sector. Whereas the Chinese and Indians moved into modern professions and trade, the
Malayan peasant was tied down to rice cultivation. Protection in educational policies did not
serve to reverse the trend. It so happened that the Chinese who were enterprising and
adventurous gained economic power and leadership in education and in modern professions.
The Indians either entered into trade or the civil service, while the Indian descendants of
coolies who had been sent to the plantations of the country remain till today depressed and
backward.
It is clear that British colonial policy managed to create as well as consolidate mutual
suspicion, and inter-ethnic competition. This had expected consequences and at independence
internal divisions were to surface visibly. The Chinese and the Indians wanted a modern
secular state with English as an official language in addition to Malay, a capitalist economy,
equal rights under a constitution, and full citizenship. The Malayans expected special
protection for themselves and for their language, religion, and culture. They also demanded
privileges in government, education, and economic life.
The constitution of 1946 was secular and non-discriminatory, removing as it did all
Malayan and Muslim privileges, and demolishing the power of Sultans. But the Malayans
continued to feel uneasy at what they saw as the economic domination of the Chinese and the
Indians. A new constitution, which was drafted in 1948, reintroduced much of the privileges
and the feudal power of the community leaders. The 1957 constitution replicated these
provisions, with Malay becoming the national language and Islam the national religion. The
constitution institutionalised monarchy and provided that the Sultans of the nine Malay states
would occupy the throne for a five-year term in rotation. The constitution also introduced
special rights for the majority, employment quotas for the majority in public services, quotas
for scholarships and business permits, and designated lands for ownership. The Chinese and
Indians were accepted as full citizens but they had no special privileges. The re-definition of
Article 153 of the constitution further expanded and institutionalised Malayan privileges.
Subsequent policies were designed to promote the special rights of the Malayan people in the
rural and urban spheres. In sum, these policies attempted to raise the socio-economic status of
the majority through fiscal measures, pricing policies, and economic resource distribution.
These measures still did not work well and income disparities between the groups
increased, partly because the Chinese and the Indians had historically managed to command
the modern economy. The domain of tertiary education continued to be dominated by other
ethnic groups despite the absence of scholarships for the children of these groups. All this
was to lead to further discontent and in 1969 riots erupted against the Chinese. After two
years of emergency, when democratic government was re-established, more concessions for
Malayans were institutionalised in the 1971 special rights package. The package made it an
offence to challenge the official language, Bhumiputra dominance was consolidated, and the
new economic policy instituted preferential policies for the Bumiputras. It was further
stipulated that citizenship rights for Chinese and Indians was based on the consent by the
dominant group, which, it was held, is the rightful owner of the country. The Chinese and the
Indians are expected to assimilate into Malayan culture through language and social customs,
and resistance to conversion to Islam is seen as a threat. In fact the non-Malayans continue to
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be seen as aliens, even as the fact that they dominate the economy continues to be widely
resented.
Affirmative action in this case has served to protect the majority Malayan people,
defended as it is by notions of the ‘sons of the soil’. It is somewhat ironic that though the
Malayans have never suffered segregation, discrimination, and marginalisation like the dalits
in India or the African-Americans, even though they have never been socially ostracised and
humiliated, they are granted preferential treatment. Affirmative action policies, it is clear, can
work both ways, to protect the disprivileged and to protect the privileged.
India
The policies of affirmative action in India as in the US have been designed to correct past
wrongs—institutionalised discrimination against the dalits and the scheduled tribes. But there
are significant differences in the way the two sets of policies have been conceptualised and
implemented. Whereas affirmative action in the US is modelled on individual rights, i.e., the
right to equality of opportunity, the Indian constitution sanctions the grant of quotas for the
scheduled castes and tribes in the legislature, in education, and in public sector jobs.
Moreover the US does not define any group as backward, whereas both the constitution and
policy prescriptions in India define backward groups. In sum, in India, affirmative action
policies are stronger than those adopted by the US.
This makes sense when we consider that in India the dalits constitute the perpetual
underclass.7 Literacy among dalits is only 37.1 per cent compared to 52.21 per cent for the
country as a whole, 81.28 per cent of the community lives in the rural areas, and 50 per cent
of the dalits are landless labourers. Throughout the history of India’s caste system, dalits have
been subjected to sub-human treatment, and they have suffered from lack of self-respect even
as they have endured deep-rooted and structural injustice.
It was, therefore, evident that only measures that remedy economic deprivation would
not be enough to guarantee the dalits some opportunity to profit from the political and
economic system. Given entrenched social prejudices, the access of dalits to education, to
jobs and to legislative representation had to be guaranteed through the grant of reservations or
quotas. Reservations were made part of the concept of social justice, which was meant to
remedy past injustices. These provisions have been supplemented by constitutional
injunctions that ban untouchability in the country.
Accordingly, whereas Article 14 provides for equality before the law and equal
protection of the laws, Article 15(4) which was added by the first amendment, provides
special provision for the advancement of socially and educationally backward classes of
citizens, for scheduled castes and scheduled tribes, and women. Article 16(4) provides for
state action in reserving appointments or posts in favour of any backward class or classes of
citizens, which, in the opinion of the state, is not adequately represented in the services under
the state. This specific provision has been used by the report of the Mandal Commission,
implemented in 1990, to expand reservations to ‘other backward castes’ that are socially and
educationally marginalised.
Reservations were originally meant to be but part of the package of policies that are
targeted towards the removal of disprivileges. Article 38 obliges the state to strive to promote
the welfare of the people by securing and protecting as effectively as it may a social order in
7
I am not dealing with the scheduled tribes here, though the argument applies equally to this section of society.
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which justice social, economic and political, shall inform all the institutions of national life,
minimise inequalities in income, and endeavour to eliminate inequalities in status, facilities,
and opportunities among people residing in different areas. Article 46, directs the state to
promote with special care the educational and the economic interests of the weaker sections
of the people, particularly scheduled castes and scheduled tribes, and protects them from
social injustice and all forms of exploitation. Article 335 states that the claims of the
members of the scheduled caste and the scheduled tribes shall be taken into consideration
along with the maintenance of efficiency of administration in the making of appointments to
services and posts in connection with the affairs of the union or of the state. Along with
Articles 330 and 332, these constitutional provisions form the core of affirmative action
policies.
The Supreme Court has harnessed these clauses to the cause of remedial action.
Whereas in an earlier judgement in Devadasan vs Union of India 1964, the court had argued
that Article 16,4, constituted an exception to the main provisions of 16,1, it was to later
change its stance. In the State of Kerala vs N.M. Thomas 1976, the court accepted the
principle of equality of opportunity as well as affirmative action. The judgement was to
consequently expand the meaning of ‘equality of opportunity’ to ‘equality of result’. This was
a historical judgement, for as Justice Mathews argued, reservations can be expanded to all
members of backward classes and not confined to the scheduled caste and scheduled tribes.
Affirmative action policies in India therefore ensure:
ƒ
ƒ
ƒ
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Special representation rights of scheduled caste and scheduled tribes in the legislature.
The fixing of quotas in government jobs and in educational institutions for scheduled
caste and scheduled tribes.
Preferences target a few groups such as women, and scheduled caste and scheduled
tribes with regard to services—scholarships, grants, loans, land allotments, health
care, and legal aid.
These groups are also entitled to benefit from poverty alleviation schemes and
development plans. Reservations can be employed when it comes to distribution of
land allotments, housing, and other resources in a limited way.
Affirmative action policies have to be read alongside the provisions of specific measures that
aim to eradicate the practice of untouchability—such as prevention of forced labour, allowing
entry to temples and access to water resources, and prohibition on the carrying of head loads
in order to comprehend the entire package of remedial action.
In 1990, reservations (till then, 15 per cent for scheduled caste and 7.5 per cent for
scheduled tribes) were extended to the backward castes vide the implementation of the
recommendations of the Mandal Commission report. Other backward castes were entitled to
quotas to the tune of 27 per cent over the 22.5 per cent already in existence. The Mandal
report was to identify 3,743 castes belonging to the middle strata and comprising 52 per cent
of the population. However, an earlier ruling of the court had restricted reservations to only
50 per cent of the totality of seats in educational institutions and employment.
What is of interest is the distinction made by the Mandal report between a) equality of
opportunity, b) equality of treatment, and c) equality of results. The Commission was to state
that Article 14,1, of the constitution, is a libertarian and not an egalitarian conception and it
does not lead us to any consideration of the disadvantaged. Therefore, it has to be
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supplemented by other remedial measures. Since equality of treatment does not distinguish
between the advantaged and the disadvantaged, formal equality has to be supported by quotas
for backward castes as and when the government identifies them.
IV
Evaluating affirmative action in India
I have suggested above that affirmative action policies should be applied only to cases of
double disadvantage, and that they should not be extended to all cases of economic
deprivation. An evaluation of the policies of affirmative action in India still needs to be made.
At the end of fifty-three years of our experiment in affirmative action it is clear that these
policies have fetched mixed results. This is partly due to faulty conceptualisation, and mainly
due to faulty implementation. But perhaps it is time to take stock of the entire package.
Let me begin this section by posing a specific question of affirmative action
policies—what are they meant for? To put it bluntly, are there any connections between
affirmative action and the extension of social respect to the beneficiary on the one hand, and
development of self-respect in the beneficiary on the other? Admittedly, it is not easy to
establish a relationship between tangible things such as re-distribution of material resources
through, say, reservations and the cultivation of sentiments such as self-respect, self-esteem
and a sense of self-worth. But presumably the deeper logic that underlines and penetrates
affirmative action philosophies and policies is targeted towards the inculcation of precisely
these sentiments. After all, affirmative action is necessary to neutralise oppressive structures
of power that have debarred dalits from society, the economy and the polity, and protect
individuals against the kind of humiliation that is inbuilt into the caste system.
The link between affirmative action policies and the development of feelings of selfrespect or the extension of respect to the beneficiaries of the policies has, however, proved
more tenuous than originally conceived. For one, not only is respect an elusive concept
inasmuch as it belongs to the realm of human prejudice and attitude, which are sanctioned by
cultural belief systems, it is a matter that is not so easily commanded by politics. Politics can,
to put it differently, negotiate distribution of resources. The matter requires vision, courage
and commitment, but as history has shown us, it can be done. How does politics negotiate
respect? How does it lay down parameters of what human beings owe each other by virtue of
being human? Too many troubling factors cast their dark shadow on this precise issue,
aspects that relate to the caste system, and collective psychology, all of which does not lend
itself easily to political negotiation or intervention. And yet respect is vital to human beings,
for it determines how they think of themselves, and how they relate to others.
In sum, we should understand that it may not be enough to grant individuals access to
material resources through quotas; it is equally important to respect them in the sense of
validating their self-respect. For if an individual is subjected to disrespect in her daily
dealings in the public or in the private sphere, or when she is subjected to humiliation, the
consequences can be serious—the spectre of demoralised, diminished and degraded beings on
the one hand and the eruption of struggles for respect or dignity on the other.
But have the policies of affirmative action, which have in effect been reduced to the
politics of quotas, managed to secure respect for dalits? Twenty-seven years ago, I.P. Desai
presented the findings of his research on the practice of untouchability in rural Gujarat. In
public arenas governed by law such as schools and post offices, he told us, untouchability
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was least practised. Only one school in 59 villages had separate seating arrangements for dalit
children, and only 4 per cent of the post offices practiced discrimination in their transactions
with dalits. When it came to the private sphere of social transactions, however, matters were
different.8 In 90 per cent of the villages he surveyed, Desai found that dalits were not allowed
to enter the houses of caste Hindus. Barbers, shopkeepers and potters kept their distance from
dalits who continued to be thought of as polluting. Dalits were prohibited from entering
temples frequented by caste Hindus. In ten per cent of the villages surveyed, dalits were not
allowed direct access to common water sources. They were consequently dependent on caste
Hindus for access to water.9 Other villages had created separate wells from where dalits could
draw water. Though discrimination could be found in seating arrangements in the public
arena of Panchayats,10 it was really in the private sphere that untouchability continued to be
practised seriously. Desai concluded that dalits had benefited, because ‘they do not have to
suffer humiliation every day at the hands of the savarna’.11 But though the attitude of caste
Hindus had changed at least in public transactions, their beliefs about untouchability had not
altered. The world of the dalits had advanced in the sphere of public transactions that are
governed by law; but not in the sphere of private relationships—friendship, intimacy, dining
together, visiting each other—which lie outside the ambit of the law.
One would have thought that matters would be different today. After all, the last two
and a half decades have witnessed the dalit movement and dalit parties moving to the centrestage of Indian politics. The caste question has been fore-grounded in public consciousness in
and through what is referred to as the Mandalisation of politics in the 1990s. The former chief
minister of the largest state in the country, Uttar Pradesh, is a dalit, and so is the previous
president of India. Widely-respected dalit intellectuals have aggressively fought out the caste
issue in political and intellectual circles. The dalit movement has raised, and continues to
raise vexing issues of caste discrimination publicly. Activists have taken those who violate
provisions meant to ensure the well-being of the dalit community to court as well as to the
Scheduled Caste Commission. A dalit university has been set up in the country. Prominent
Indian literary figures writing in English invariably have a dalit protagonist as the lynchpin of
their story. No election can be fought without reference to the caste issue. And dalit politics
have finally generated a politically correct vocabulary in at least the public domain.
Have the dalits finally come into their own as equal citizens of India? Perhaps yes,
and this despite all the odds. Most works on affirmative action or protective discrimination
conclude that the policies have worked rather well given the anarchic nature of the Indian
political system and entrenched caste discrimination, even though we can count enough flaws
in the implementation of these policies.12 A more troubling question follows: have the dalits
finally come into their own as agents who possess equal moral standing in the public as well
as in the private sphere? The response to this question is mixed but on the whole pessimistic.
8
I.P. Desai, Untouchability in Rural Gujarat, 1976, Popular Prakashan, Bombay.
Ibid, pp. 62-3
10
Ibid, pp. 258
11
Ibid pp. 114
12
See Barbara Joshi, Democracy in Search of Equality, 1982, Hindustan Publishers, Delhi; Simon R. Charsley
and G.K. Karanth in the introduction to their edited work Challenging Untouchability (1998, Sage, Delhi)
suggest that though it is not as if nothing has changed for the dalits, their current situation remains paradoxical.
That protective discrimination policies has fetched mixed results had been pointed out by Mac Galanter in 1984
in his Competing Equalities (OUP, Delhi).
9
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
Consider the conclusions of the recent research carried out by Shankar Gaikwad, who
interviewed about two hundred college-going and employed dalits in Aurangabad. Publishing
his findings in 1999, Gaikwad suggests that despite the institutionalisation of protective
discrimination policies in the public sphere, the attitude of caste Hindus has not changed.13
Whereas all of the respondent ‘were eager to do away with caste stigmatising identity’, they
felt deeply that they continued to be discriminated against.14 And while 80.5 per cent of the
dalits expected that their relationship with caste Hindus would be based on equality, the latter
did not respond in terms of inviting dalits to their homes, dining with them, or entering into
other social relationships. Sixty-six percent of the respondents reported that they continued to
feel humiliated and discriminated against. There have been changes in the secular aspects of
the dalit’s life concluded Gaikwad, but other aspects of his or her life have not changed.15
At least two overlapping but nevertheless distinct questions crop up in light of the
above observations. First, is it enough to institutionalise reservations in the public sphere to
reverse historical discrimination? Secondly, have affirmative action policies yielded results
other than the material? By material results I mean a) access to resources such as professional
skills through quotas in educational establishments, and b) access to an income through
quotas in government employment. By non-material results I mean the extension of respect to
people, in the sense of treating them with dignity if only because as human beings they
possess equal moral standing. To put it differently, have affirmative action policies produced
respect for the beneficiaries of these policies. Or, even if people who have been given access
to the sphere of education and government jobs through quotas are treated with minimal
professional courtesy and propriety in the public sphere, are they extended the same respect
in the private sphere? And, if not, what is the problem? As a possible answer I identify four
such problems with the way affirmative action policies have been conceptualised by the
Indian government.
One prefatory point may be in order here. I am personally committed to the policies of
protective discrimination, and if I have sought to uncover areas of tension in the concept in
this essay, it is purely to explore the idea in its fullness. I wish to explore the ambiguities and
the complexities of the issue. I want to show that though there is much good in the idea, it can
also cause great harm. In other words, I wish to carry out a reasoned evaluation of the
presuppositions and the consequences of 50 odd years of protective discrimination policies
because I care for democratic equality, even though my efforts may verge at times on the
politically incorrect.
But before I go on let me point out that affirmative action policies are based on two
major premises. For one, persons are disadvantaged not because they do not possess talent or
luck, or because they have suffered exploitation individually, but because they are born into a
caste that has been stigmatised in demeaning ways—as the ‘inferior’ or the ‘polluting’.
Human beings are discriminated against because the group of which they happen to be
members has been historically discriminated against.
Even die-hard liberals, who are generally suspicious of ascriptive group identity, have
been forced to acknowledge that the codification of caste-based disprivileges denies to the
member of that caste group equal moral standing. Consequently, an argument that was
13
Shankar L Gaikwad, Protective Discrimination Policy and Social Change. An Analytical Study of State Action
on Scheduled Castes in Aurangabad City, 1999, Rawat, Jaipur.
14
Ibid pg 190
15
Ibid pg 193.
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
originally designed to extend to individuals justice has been adapted to groups for two
reasons. Because individuals are subjected to ritualised humiliation because of their
membership of a caste group, which has been allotted a lowly status in the social hierarchy.
Moreover, by reasons of this membership, individuals are denied access to skills, resources
and other material necessities. Material deprivation is supervened upon cultural
marginalisation, exclusion and deprivation. Individuals are thus doubly disadvantaged by
reasons of their membership in a particular caste. Correspondingly, any kind of remedy has to
apply to all the members of the group rather than to the individual per se. Thus, affirmative
action is designed not for individuals as individuals but to individuals as members of a group.
Secondly, in India the case for protective discrimination has been built on a particular
reading of Indian history—members of groups have suffered in history because society has
allotted to the group a lowly place in the caste hierarchy and excluded the members from the
benefits that accrue to other members. The text of history is read as a narrative of collective
guilt and collective complicity on the one hand and collective victimisation and collective
harm on the other. There are no individual exceptions to this story of collective complicity
and culpability. No one can claim that they or their ancestors have not participated in
practices that exclude members of a society from sharing in the collective benefits that such
society has to offer to its members. No one can claim that they be exempted from the
remedial measures that have been adopted for the victims of history. If a particular reading of
Indian history16 has led to the institutionalisation of affirmative action, the acceptance of
collective culpability had led to its legitimisation in society and the polity. The general
feeling was and continues to be that those who have benefited from history should be willing
to pay the costs. The issue of compensation for harm done looms large over the conceptual
horizon of reservations and this is the first problem.
Certainly, the notion of compensation for the harms of history may be a sound basis
for building protective discrimination policies and endowing them with legitimacy. Whether
it is enough to reverse caste discrimination and whether it is enough to secure respect for the
beneficiaries of these policies is more debatable for the following reasons.
1. For one, the idea that ‘we’ owe something to ‘them’, divides society along the axis
of ‘we-ism’ and ‘they-ism’. ‘We’ as the beneficiaries of history have to pay ‘them’ as the
‘victims’ of history. So we design reservations in educational institutions and in government
jobs. But does this mean that the resources of a given society are equalised? Does it mean that
every person is viewed as an equal stakeholder in society? For, it is possible that even if
reservations benefit some people, their share of the common resources of a society remain
far, far, lower than those possessed by the better-off in that society.
Is it enough, we are further compelled to ask, to minimally compensate people for
historical wrongs and leave it at that? Should we disclaim any further responsibility for the
disprivileged? Should we not be moving towards a shared vision of egalitarian democracy,
instead of remaining mired in notions of minimal compensation? Should we not also ensure
that all people move towards this vision through persuasion? Correspondingly, if we do not
do that, is it possible that the issue of compensation has been caught up in humanitarianism
and not social justice? But humanitarianism cannot be substituted for egalitarianism, for
humanitarians are concerned only with helping the worse off; they are not concerned with
16
I take it as a matter of course that this history of caste exploitation, which was narrated by the Bhakti Saints,
Jyotiba Phule, or Ambedkar, among others, has become a part of collective consciousness through the struggles
of the dalit movement.
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Social Science Baha, Godavari, 16-17 November, 2003
equality. Therefore, even if the dalits are guaranteed access to education, the rich upper castes
have even greater access to much better education. This does not by any means equalise
access to resources; it may even reproduce inequality.
2. Secondly in India, social justice, which ideally should include land reform, incomegeneration policies, redressal of inequality, and securing the well-being of the disprivileged,
has been collapsed into reservations in educational institutions and in government jobs.
Reservations, which should have formed one component of social justice, have come to
substitute for social justice. The victims of history have been compensated in the most
minimal of fashion possible. In the process the realm of social justice has narrowed down
rather than expanded. Whereas issues of land reform have been consigned to the dustbin of
history, reservations have expanded to rather absurd proportions.
It is not difficult to figure out why this is so. Reservations in effect have proved a soft
option for political elites who are reluctant to carry out deep-rooted changes in society and
would rather opt to enlarge the constituency for reservations in state jobs and in educational
institutions. It is, after all, relatively easy to essay reservations in a rapidly shrinking
government sector and in an even more rapidly privatising educational system than change
ownership of resources in the country. Moreover, promises of reservations prove especially
profitable when it comes to garnering votes. Therefore we witness the somewhat perplexing
phenomenon of caste groups, which by no stretch of imagination can be thought of as
historically deprived, being made the beneficiaries of reservations for the purpose of amoral
electoral politics. Consider how the once-proud Jat community, which has historically either
owned land or cultivated land, has been granted reservations in Rajasthan and in Delhi. And
consider how in Rajasthan the Brahmins and the Rajputs have demanded reservations.
All this has had rather serious consequences both for the practice and the legitimacy
of reservations themselves. For in the process of being employed as an electoral ploy, they
have been de-linked from their normative moorings in visions of social justice and egalitarian
democracy, and come to be generally perceived as a convenient tool of amoral electoral
politics. Therein the recent discourse of caste reservations rests on less rather than more firm
philosophical (and hence morally justifiable) grounds. Consequently, the arguments that are
assembled for caste reservations in the politics of the nation seem to the ordinary citizen less
compelling than they should be. This citizen does not view reservations or the beneficiaries
of reservations kindly precisely because no policy-maker spells out the normative case for
these measures in any detail.
3. It is difficult to escape the realisation that the public discourse of restitution for
historical wrongs has inevitably led to competing and spiralling claims of victimhood on the
one hand, and demands for compensation on the other. In a world where the victim is the
hero, suffering itself has been trivialised because it has been reduced into an index for
compensation. Groups now compete over who has been most victimised in history because
they aim for reservations as compensation. As a result, instead of joining together to battle
injustice, groups confront each other: ‘as long as we get quotas we do not care what happens
to you’. The division of the disprivileged along the lines of reservations allows the better-off
upper castes to monopolise the gains of the economy in the expanding private sector, even as
reservations confine the disprivileged to the state sector that is in any case undergoing
privatisation.
4. Even as reservations have been disembedded from their moorings in egalitarianism
and come to be embedded in cynical electoral considerations, they have transformed caste
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Social Science Baha, Godavari, 16-17 November, 2003
identity into a self-perpetuating advantage, one that is completely contrary to what the
leadership of oppressed groups had envisaged. Martin Luther King Jr had dreamt of a
situation where ‘my four little children will one day live in a nation where they will not be
judged by the colour of their skin but by the content of their character’.17 It is an indication of
our times that Ambedkar’s dream that caste identities should become an insignificant
category in our public life is today regarded as naively utopian at best and as a limited
commitment to caste equality at worst by dalit parties themselves. People have simply come
to acquire a vested interest in caste identities.
And it is precisely this which has contributed to generalised feeling of hostility
towards the beneficiaries of these policies today. To put it bluntly, our public discourse over
reservations undermines both reservations and the beneficiaries of reservations. Reservations
are seen not as a justified component of egalitarianism but as unjustified rewards for things
such as support for a particular political party for instance. Any political or philosophical
defence of such policies is rendered wafer thin. Expectedly, any extension of reservations has
met with hostility and resentment from the beneficiaries of the policies. Resentment and
hostility, in turn, have been expressed through the perpetuation of demeaning caste
stereotypes and stigmatising imagery. It has, in essence, reproduced humiliation and
disrespect.
There are two uncomfortable facts about reservations that its defenders refuse to
recognise. And this refusal to recognise the problem further de-legitimises reservations. One,
given the self-perpetuating nature of reservations because they have become a soft option, it
has become extremely difficult to justify them when it comes to questions such as the
following: why should a middle-class child who belongs to the lower caste be offered an
educational opportunity, which is denied to a poor upper-caste student?
Secondly, protective discrimination policies perhaps naturally focus on inter-group
rather than intra-group inequalities. Demands for social justice are inescapably demands for
equality between groups rather than equality within groups. But that any group, even one that
have been historically deprived, can be divided along the axis of inequality is obvious. After
all those who remain at the bottom of a group will be unequal to those who have benefited for
two or now three generations from reservations. A deep problem casts its shadow over
protective discrimination policies for we will have to ask the question: why is inequality
between members of a group acceptable when inequality between groups is not?
Correspondingly, how do we design policies of redistribution that apply to individuals within
the group? These are questions that are rarely asked of policies that target entire groups.
Conclusion
I have argued that any society that is committed to democracy, justice and equality, has to
address two kinds of marginality, horizontal and vertical. Horizontally inequality between
groups can be remedied through the adoption of a variety of measures such as power-sharing,
which ensures that one group does not monopolise all powers. Vertical inequalities can be
remedied through measures that promote social and economic injustice, such as
institutionalising the right to basic needs. However, there are also groups that are doubly
disadvantaged, such as the dalits in society. For them, in addition to the right to basic needs,
we need to employ affirmative action policies in order to redress social discrimination as well
17
Martin Luther King Jr (1965), ‘I Have a Dream’, speech reprinted in Negro Protest Thought in the Twentieth
Century by F. Broderick and A. Meier (Bobbs Merril, Indianapolis).
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‘Affirmative Action in Nepal: Learning from Experiences Elsewhere’
Social Science Baha, Godavari, 16-17 November, 2003
as economic marginality. Affirmative action policies are just one component of the entire lot
of remedial measures.
Affirmative action policies have to be handled carefully for a variety of reasons. For,
in India, not only has affirmative action been reduced to the politics of quotas, it has become
a soft option for political elites, who would rather grant quotas than generate employment or
institute equalisation of land holdings. This does not, note, affect the power-balance in a
society, nor does it touch the power of the elites. Moreover, because reservations have been
used to narrow down the sphere of social justice, and because they have become a ‘soft
option’, they have become a tool in the hands of political elites to establish and consolidate
electoral constituencies. Therefore, we witness the absurd phenomena of political leaders
promising reservations to all and sundry, even if these groups have never been marginalised.
This in turn de-legitimises reservations, it leads to resentment, it consolidates a feeling of
‘we’ versus ‘them’ in the body politic, and it promotes competition between marginal groups.
But reservations become difficult to defend if they become a part of electoral politics rather
than a part of social justice. Social justice can be defended but reservations as a part of
amoral electoral politics cannot be defended especially if reservations are indiscriminately
extended to upper caste groups.
In sum, I wish to reiterate that affirmative action policies have to be taken seriously
and used sparingly; otherwise they become controversial and therefore lose their legitimacy.
Societies may even witness a backlash against affirmative action policies as has been in the
case of the US, and the increased resentment in India against what is seen as a violation of the
basic law of equality.
25