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september 20, 2008

EPW

Economic & Political

Weekly

tsdig rsvis: a Pdig Shi i h Db equli

Tarunabh Khaitan

Some o the contemporary debates on social inequality transcend reservations so asnot to be entrapped in the casteparadigm. This article mapsthe creeping changes in ocialdiscourse brought about by the inusion o resh ideas. I implemented, the new proposalshave the potential o bringingabout signicant changes in thelives o many, thereby achievinga more meaningul equality or a wider population.

aste-based reservations in publicemployment and education havebeen India’s primary vehicle orullling its constitutional promise o anegalitarian society. For 60 years independ-ent India has seen this policy increasingly entrenched and the most important de-bates on equality have been debates on eli-gibility o various caste (and sometimes,religious and economic) groups to accessthe benets o reservations. There havebeen voices o dissent, voices proposingalternatives, demanding reviews and im-pact assessments o the reservation policy,oten through the pages o this journal.

1 Idui

Some have asserted that decades o reservations have done little to remove the evilo caste discrimination in any signicantmanner [Thorat 2002]. Others have ar-gued that reservations reinorce caste andethnicity rather than transcend it. SanjibBaruah (2003), or example, says that thereservations policy in the north-east hasconcretised ethnic identities and classiedthe descendants o immigrants as perpet-ual outsiders. This has been the mainanxiety that has prevented the extensiono the reservations model to religiousgroups. The context o our history o Partition based on religion has intro-duced particular sensitivity or the dan-gers o concretising religious identities[Ali 2006]. The ugliness o competitionor reservations benets that identity politics sponsors was seen in the recent violent conficts over reservations orgujjars. Rajasthan makes one sceptical o the reservations policy.These are but a ew issues in a crucialdebate that touches upon issues o equality, justice and national integration. Recent years have seen bold proposals thattranscend reservations – some hostile tothe concept, some seeing it as necessary but not sucient, while yet others whichrequire certain modications. Deshpandeand Yadav (2006), or example, have pro-posed a point-based armative actionprogramme that takes into account bothgroup and individual disadvantages.Thorat (2006) recommends a slew o mea-sures, including an anti-discrimination lawand reservations, to achieve social justice.Till recently, these dissenting voiceshave largely been academic or activist. Butthe last ew years have witnessed a creep-ing change in the government discourseon equality, a sort o ocialisation o these voices. Recognising this change iscritical to everyone who has been dissatis-ed with the unidimensional equality model embodied in the reservations policy.These new proposals are not necessarily hostile to reservations and can easily coexist. But they claim to have the poten-tial o achieving more meaningul equali-ty or a wider population on (hopeully)more acceptable terms to the non-beneciaries. The main purpose o thisarticle is to map this change in the ocialdiscourse and outline these new post-reservations proposals.It all started with the justice RajinderSachar Committee’s (2006) ‘Report onSocial, Economic and Educational Statuso the Muslim Community o India’. Real-ising that the backwardness o IndianMuslims is a result o a larger institutionaland societal context, it made two specicrecommendations designed to benetall vulnerable groups, not just Muslims:

(1) ...the Committee recommends that anEqual Opportunity Commission (

EOC

)should be constituted by the governmentto look into the grievances o the deprivedgroups, (2) enhancement o diversity indierent spaces should be seen as a largerpolicy objective... The idea o providing cer-tain incentives to a “diversity index” shouldbe explored.

This out-o-the-box thinking that wentbeyond reservations in public employmentand education were necessary because o the constitutional impermissibility o reser vations or religious groups. Twoseparate expert groups were set up as aollow-up measure to look into these two

Tarunabh Khaitan (

tarunabh@gmail.com)

teaches law at St Hilda’s College, Oxord, UK.

commentary

Economic & Political

Weekly

EPW

september 20, 2008

suggestions in urther detail. The rstexpert group, chaired by Madhava Menon(2008), was asked to “examine and deter-mine the structure o an Equal Opportu-nity Commission”. It submitted its reportin February this year. The second expertgroup, chaired by Amitabh Kundu (2008)to “propose ‘diversity index’ and to work out the modalities or implementation”submitted its report in June 2008. TheKundu report recognised that the Sacharreport’s impact would be wider than itsprincipal objective:

Although the task o the Sachar Committee was to evaluate and enumerate the condi-tions o a specic minority group, the idea o a diversity index is foated to operationalisea broader notion o diversity, countering thetendencies o discrimination and depriva-tion in production, distribution and socialsectors in India (vii).

A related development has a dierentorigin. Because o the shrinking o thestate since liberalisation started in theearly 1990s, even the original beneciar-ies o the reservations policy – the schedu-led castes (

s) and scheduled tribes (

s)– knew they were losing out. Interventionin the private sector became necessary and the current United Progressive Alli-ance (

UPA

) government promised as muchater taking oce:

The

UPA

government is very sensitive to theissue o armative action, including reservations, in the private sector.

UPA

’s CommonMinimum Programme (2004).

But since reservations were less palata-ble to the private sector, other orms o armative action needed exploring. Thetask is being perormed by the Coordina-tion Committee on Armative Action,chaired by principal secretary to theprime minister’s oce T K A Nair. Although the beneciaries are still re-stricted to

s and

s, the governmenthas (at least so ar) relied upon negotia-tions rather than legal sanction to encour-age armative action measures that arenot reservations-centric.Put together, these developments pointtowards a new multiaceted understand-ing o equality. I implemented eectively,they might make more meaningul chang-es in many more lives than what has beenmanaged by the reservations policy onits own. The ollowing sections will look at dierent aspects o this broadeningunderstanding o equality rom a holisticpoint o view.

2 Phibiig Disiii

The main ocus o the

EOC

proposed by the Menon report will be to weed out dis-crimination against members rom “de-prived groups” identied by an objectivedeprivation index, and dened by “sex,caste, language, religion, disability, de-scent, place o birth, residence, race

or anyother

...” ground. Thus, the eligibility re-quirement or protection by the proposedlaw is deprivation based on an open-endedlist o irrelevant personal characteristics.The nal residual clause “or any other” isa place-holder or other analogousautonomy-inringing grounds that may belled in later. A lthough this oresight iscommendable, it will be a good idea toexpand the list to include currently knownanalogous grounds like “sexual orienta-tion, marital status, ood preerence,age, dress preerence, gender identity,pregnancy”, etc, while still retaining theresidual clause.The proposed bill in the Menon reportalso recognises that deprivation iscontingent. What is today a deprivedgroup may not be so tomorrow. Protec-tion will be dependent not on the muchmaligned “vote-bank politics” but on aprincipled demonstration o deprivationthrough the deprivation index. Further,the bill recognises our multiple identitiesby moving away rom a ocus on singleinterest groups and instead arriving atthe generic idea o “deprived groups”.One may be rich, male and able, but aMuslim religious identity may result inbeing discriminated against nonetheless. Again, a dalit lesbian woman carriesseveral depriving identities, the totality o which cannot be captured by a single-issue oriented law.This design is not only morally betterbut also has a more universal appeal – with the rich and complex diversity o human identities, most o us are morelikely to see ourselves as potential victimso illegitimate discrimination rather thanas perpetual non-beneciaries. This raisesthe possibility o empathy with victimso discrimination rather than empathy-ailure caused by divisions betweenus-and-them.In its potential impact, the Menon reportis the least ambitious o the threesuggestions being discussed here. It only goes so ar as imposing a negative obliga-tion on public as well as private bodies: re-rain rom discriminating unairly. Thereis no positive requirement to do good. Thisis what makes it possible to have a long listo beneciaries – unair discriminationagainst anyone is wrong. But it is particu-larly wrong against a member o a deprivedgroup, because by denition they have ewopportunities available to begin with.The Menon committee is, correctly, “o the rm opinion that the jurisdiction o this Commission should not be limited tothe public sector”. Yet, citing incrementalsectoral progress, it suggests that only em-ployment and education should be the ini-tial ocus o the

EOC

. The deerment o itsapplication to the housing sector to a laterdate is unortunate, given rampant dis-crimination on the grounds o religion,caste, ood preerence and marital statusexisting in that sector.

To what extent anti-discriminationlegislations can help eradicate structuralinjustice in the short-term is debatable.Driven as they usually are by complaintsrom victims, even a very eective enorce-ment mechanism can only be expectedto deal with only a limited percentage o existing discrimination in society andthat too ater the discrimination hastaken place. This has been addressed toa limited extent by the Menon report which seeks to grant a broad policymak-ing role to the proposed

EOC

(sadly, itseems, at some expense to the equally-important adjudicatory unction in caseso individual discrimination).Having enacted the Civil Rights Actprohibiting discrimination in the privatesector in 1964, the United States (

) pro- vides good evidence over a long period o time. O course, the Menon report pro-poses a group-driven rather than anindividual-driven complaints model andadjudication is only a minor role o theproposed commission – so comparisonscan be tricky. For what they are worth,some statistics released by the

EqualOpportunities Commission refect thechange in the composition o the work-orce over the years, which at least in part,is owed to the law.

commentary

september 20, 2008

EPW

Economic & Political

Weekly

Although discrimination certainly con-tinues to exist in the

, the gures areremarkable. Beore enacting the Menonreport into law, a study o the impact o various models o anti-discriminationlaws in other jurisdictions as well as pilotstudies in India is necessary.While the Kundu report discussed inthe next section is more directly concerned with the representation o various groupsin the workorce, anti-discriminationlegislations denitely augment othermeasures to encourage diversity. But thelatter have their main value in promotinga national culture that is intolerant o unair discrimination. This battle o mindsis perhaps more, i not as, important as thebattle o numbers.

3 Pig Divsi

In a non-discriminatory world, all publicspaces will be diverse (public “spaces” in-clude privately owned business, housingsocieties and schools since the unctionsthey perorm are o a quasi-public nature).I hiring, admitting, leasing and sellingpolicies are non-discriminatory, the socialmix o a workorce, students or housing so-ciety will roughly refect that o the society itsel. Since this is not the case, positive actionis needed. The Kundu report argues thus:

The case or increasing social diversity inpublic spaces can be built on the notion o a air demographic representation or allgroups o population. Groups that are sub- jected to discrimination in society tend toget under-represented (as compared to theirproportion in the population) in several pub-lic spheres. This leads to inequity and aliena-tion resulting in resentment and rustrationamong the excluded population. These couldassume violent and secessionist expressions,leading to disruption in social and politicallie, with serious negative consequences orgrowth, development and social harmony...There are numerous cases when the individual characteristics have been renderedeither secondary or completely redundant indetermining her/his access to these institu-tions as group identities overwhelm or dic-tate the decision-making process.

Diversity, although linked to discrimi-nation, is an independent concept. As theKundu report emphasises, its main con-cern is the “Concentration or clustering o populations with similar socio-economic,religious and ethnic characteristics in geo-graphical, social, political and institution-al spaces...” A concentration o minority groups in a public space is as regrettableas that o a majority group. As such, diver-sity transcends the majority-minority divide.The benets o diversity go beyondrepresentational justice. As the

SupremeCourt noted in

Grutter vs Bollinger

, adiverse “admissions policy promotes cross-racial understanding, helps to break downracial stereotypes, and enables students tobetter understand persons o dierentraces. These benets are important andlaudable, because classroom discussion islivelier, more spirited, and simply moreenlightening and interesting when thestudents have the greatest possible variety o backgrounds.”

Similar benets may beseen in a diverse workorce.The Kundu report does not restrict thesensitivity o diversity to religion alone.The report recommends a diversity-index which is sensitive to caste, religion as wellas sex in a given public space. It calculatesthe “diversity gap” in a public space by comparing the actual intake o memberso a particular religious, caste or gendergroup in a given institution to the “popu-lation who are eligible to enter the institu-tion” and not to the general population.While admitting that a low number o eli-gible members itsel may be a result o dis-crimination, the report justies this as apragmatic compromise because “an individual institution has limited role to play in changing that”.The diversity gap is designed to ensurethat only social exclusion is corrected – so,only i a community is under-representedin proportion to its eligible population willthe institution be rewarded or enhancingits participation. I a community (even i a minority) is already over-representedin a given institution, it cannot claimany benets.Once diversity gap has been identiedin an institution, the report recommendsthat those institutions which take meas-ures to bridge the gap should be rewardedby the state with incentives, concessions,access to public land and resources, ten-ders, export quotas, preerences, adver-tisements, etc; while those institutionsthat ignore the diversity gap are not pun-ished but do not get the benets either.The report identies three sectors to pushor diversity – education, employment andhousing. It recommends:(1) Incentives in the orm o larger grantsto those educational institutions that havehigher diversity and are able to sustain it

Table 1: Share in the Composition of Private Workforce

(all figures in percentages)

White Men Women Minorities

1966 60.9 31.2 11.22002 36.7 48.2 29.7

Table 2: Share in Official and Managerial Positions inPrivate Workforce

(all figures in percentages)

Women African-Americans Latinos

1966 9.3 0.9 0.62002 36.4 6.9 5.3

Table 3: Share in Professional Positions in PrivateWorkforce

(all figures in percentages)

Women African-Americans Latinos

1966 20.5 1.7 0.82002 51.7 7.1 4.1

Call for Papers

Margin: The Journal of Applied Economic Research

The National Council of Applied Economic Research invites papers for publicationin its quarterly journal, now being produced and marketed internationally by SagePublications India.

Margin

is a refereed journal and includes papers of national and international

signicance. We invite papers in any area of applied economics that make asignicant methodological contribution in applied economic research or contribute

to policy discussion. They can relate to any branch of applied economic research,

and may even report interesting ndings from research projects, not only empirical

research but also conceptual viewpoints that contribute to policy discussion.Additional details on the journal, its editorial board and manuscript submissioncan be found at the website:

http://mar.sagepub.com

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Transcending Reservations

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