Matters of right and of policy

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PREFERENTIAL policies for the benefit of socially disadvantaged groups have been devised and applied in various countries. These policies are of many different kinds, and they go under different names, such as affirmative action, positive discrimination, reverse discrimination or, simply, reservations. They have been justified by the argument for equality as well as the argument for diversity. In India the argument for equality has been the predominant one whereas in the United States the argument for diversity has had a strong appeal. In both countries the policies have had strong supporters and equally strong opponents, and it is not easy to make a balanced assessment of their overall consequences even for a single country.

India’s preferential policies are among the oldest and most comprehensive of such policies in the world. They have undergone many transformations since they were first introduced by the colonial government just after World War I, i.e. more than 80 years ago. The British who administered the country at the time did not generally regard India as a society of citizens but as one of castes and communities, and in the 19th and early 20th centuries there was some justification for doing so. They felt that in such a society the different castes and communities would not be adequately represented in education and employment unless special provisions were made for their presence.

The leaders of the Congress party which spearheaded the nationalist movement did not view quotas in education and employment, whether on the basis of caste or of religion, with much favour. They saw them as being socially and politically divisive, and certainly the British were not above using them to keep the nationalist movement in check. The colonial administration did not have any grand design for transforming the structure of Indian society. Their objective in introducing quotas was mainly the practical one of governing a large, complex, and alien society by balancing the different interests in it and without causing too much internal friction. But their policies had created new expectations of a kind unknown in the past, and these came to be expressed with increasing force after their departure from India.

The coming of independence in 1947 and the adoption of a republican constitution in 1950 brought a change in the framework of preferential policies. The British had introduced quotas in a piecemeal fashion and on a small scale without thinking to create a new structure of rights to be supported by a new kind of jurisprudence. In colonial times, caste quotas were matters of policy rather than matters of right. The new constitution created a whole array of rights, including fundamental rights, for individuals as citizens. In course of time caste quotas came to be represented more and more as matters of right – as what was due to members of disadvantaged communities for their past mistreatment – and not just as matters of policy. In the period since independence, the course followed by reservations has been shaped not only by the greatly expanded scope of politics but also by extensive judicial intervention.



As I have noted, the leaders of the nationalist movement were on the whole unsympathetic to caste quotas in public institutions which they regarded as obstacles to economic development and the modernization of society. But caste quotas came to be enlarged and not reduced after independence. This change of orientation may be clearly seen by comparing the reports of the two Backward Classes Commissions – the first under Kaka Kalelkar in 1955 and the second under B.P. Mandal in 1980. Both commissions were set up to make recommendations regarding the Other Backward Classes, since constitutional provisions for the Scheduled Castes and the Scheduled Tribes had already been put in place. Kaka Kalelkar, a veteran Gandhian, expressed anguish at the prospect of the revival and reinforcement of the divisions of caste and community in public life. B.P. Mandal, more seasoned in the ways of post-independence politics, called for a system of comprehensive quotas.

Between the two commissions, the movement for increasingly comprehensive quotas was spurred by the combined operation of the political and the judicial processes in a manner that may be regarded as characteristic of Indian democracy. Politicians dangled the prospects of quotas before more and more castes and communities in the expectation of gathering their political support. The courts showed themselves to be increasingly responsive to demands made in the name of social justice. The restraints that the Supreme Court under Justice Gajendragadkar had sought to impose on the expansion of caste quotas in Balaji’s case in 1962 were progressively relaxed.

What led to the shift from a policy-based to a rights-based approach to caste quotas? The new constitution not only sought to advance the conditions of disadvantaged castes and communities, it also made ample provisions for the rights of individuals as citizens of a kind that did not exist under British rule. It prohibited discrimination on grounds of religion, race, caste, sex and place of birth, and guaranteed equality of opportunity in public employment without consideration of those grounds. The first amendment to the constitution had to be made in the wake of the Champakam Dorairajan case in which a Brahmin girl who had failed to secure a place in a medical college in Madras on account of caste quotas pleaded before the court that her fundamental right under Art. 15 which prohibited discrimination on the ground of caste had been violated.



The British empire, in Nirad Chaudhuri’s memorable words, ‘conferred subjecthood’ on Indians but ‘withheld citizenship’ from them. The republican constitution of a newly independent state set about changing all this. It not only conferred citizenship on Indians but invested them with an abundance of rights. Those who had suffered meekly the consequences of caste quotas under the colonial regime now sought remedy from the courts against the violation of their rights. The more individuals found that their efforts to secure educational and occupational advancement through open competition were being thwarted by caste quotas, the more they protested that their newly-created rights as citizens were being violated by the policies of the government.

But in the social as in the physical world, every action generates its own reaction. The argument that individual rights had to be protected by the constitution came to be met by the one that socially-disadvantaged castes also had rights and they too needed the care and attention of the state. One right was invoked to trump another, and in the prevalent political turmoil the courts allowed and encouraged, and sometimes themselves adopted, the language of rights in dealing with positive discrimination cases.



The Indian programme of caste quotas has been frequently compared with the American programme of racial preferences. But the comparison is often misleading. In the United States, even the strongest advocates of affirmative action have argued their case in the language of policy and not of rights. The distinguished jurist and public intellectual Ronald Dworkin has consistently maintained that it is good policy to have racial preferences in institutions such as universities in the interest of greater diversity in their social composition. It would be contrary to his argument that Blacks or individuals of any other socially identifiable group have rights of membership in public institutions in proportion to their numbers.

In arguing for affirmative action in the Bakke case, he maintained that Alan Bakke did not have a right of admission to medical school simply because his test scores were relatively high. But then, neither did the Black students selected under the affirmative action programme have such rights. He supported the admission of those students as against Bakke on the ground that it was good policy for the medical school of the University of California at Davis to have a diverse student body and, since that policy did not violate any rights, of either Black or White students, it should be adopted.



In the United States racial preferences were never written into the constitution. They were adopted as measures of policy long after the American Constitution was written, and no amendments to it were made to accommodate the preferential policies that were adopted from time to time. In India, on the other hand, provisions for positive discrimination were written into the constitution at its very inception, and amendments to it have been made to clarify and amplify their scope.

Dr Ambedkar saw more clearly than most other persons in his time or since the tension created by having special provisions for some sections of society over and above the general provision of equality of opportunity for all its individual members. He advocated very strongly the rights of citizenship, and those rights were the rights of individuals without consideration of race, caste or gender. But he felt that it was not enough to have equal provisions for all citizens, and urged the need to have special provisions for those sections of society that had suffered from severe social disabilities since time immemorial.

At the same time, he warned that the special provisions should not be allowed to ‘eat up’ the general provision of equality of opportunity for all. The restraint urged on the creation of special provisions by Dr Ambedkar has not always been observed with due care by either the legislatures or the courts.

The constitutional provisions for positive discrimination are elaborate and complex. To begin with, a distinction has to be made between mandatory provisions and enabling provisions. Mandatory provisions, like the one relating to the reservation of seats in the Lok Sabha under Art. 330, are those that must be applied. Enabling provisions, like the one under Art. 16(4) relating to reservations in employment, are those that may be applied, depending upon conditions and circumstances. Enabling provisions are necessary where preferential policies may be challenged on the ground that they appear inconsistent with other provisions, such as those that relate to equality of opportunity for all citizens irrespective of caste.

In course of time, the distinction between mandatory and enabling provisions has come to be blurred largely due to the rhetoric of social justice. Even the courts developed a tendency to treat all provisions relating to positive discrimination as mandatory ones. This was consistent with the shift from the treatment of reservations as a matter of policy to its treatment as a matter of right. A system of mandatory numerical quotas left very little scope for autonomous or semi-autonomous institutions such as the universities to devise their own programmes of affirmative action.



The public agitation over the adoption of the recommendations of the Mandal Commission that led to the fall of the V.P. Singh government in November 1990 marked the culmination of an important phase in the history of caste-based reservations in India. The Mandal Commission was set up in 1978 by the first non-Congress government in independent India. It submitted its report in 1980 which made far-reaching recommendations that were unanimously adopted by Parliament in mid-1982. By then the government had changed, and Indira Gandhi’s government and after it the Congress government under her son kept the recommendations on hold throughout the eighties without taking any executive action.



The new non-Congress government under V.P. Singh at first appeared to show the same lack of urgency as the two preceding ones towards implementing the recommendations of the Mandal Commission. Then in a somewhat abrupt and unexpected move V.P. Singh announced his decision to implement its recommendations for job reservation. This appears with the advantage of hindsight to have been a calculated political move to shore up a weak and faltering government. In the event, the move miscarried and the government fell. After the verdict of the Supreme Court which largely upheld the actions of the government, the feeling began to grow that the politics of backwardness had perhaps been carried a little too far.

The movement for reservations took a back seat for some time because many of those who had supported it out of sincere, though perhaps misguided, moral concern saw a little more clearly the cynical political manoeuvres that were often behind it. It has once again been given a new lease of life by the proposal to extend it to the private sector.

It cannot be too strongly emphasized that the move to extend caste-based reservations to the private sector is a new development in the long history of preferential policies in India. Undoubtedly, it is the same social and political impulse that lay dormant for some time following the Mandal agitations that seeks the extension of caste based reservations from the public to the private sector: if the public sector has carried the burden of the backward classes for so long, why should the private sector not now carry a part of it? After all, the private and the public sectors are both parts of the same society, and no major stakeholder in it should remain indifferent to its well-being.



I believe that there will be general agreement that business and industry, and not just the government, have social responsibilities. In the early years of independence the capitalist class did not carry a very attractive public image. India’s first prime minister and the advocates of socialist planning did not expect much by way of social conscience from traders and businessmen, although Mahatma Gandhi held a somewhat different view. To some extent every class lives up to the image that others create of it and it would be difficult to assert that traders and businessmen have always acted with a strong sense of social responsibility. But then, one can hardly say that the politicians and bureaucrats in whose care the public sector was placed were always zealous in meeting their obligations to the weaker sections of society.

Sharp disparities of caste and gender are not in the long-term interest of business and industry. Their reduction will contribute not only to social justice but also to economic efficiency. A great deal of talent, including entrepreneurial and managerial talent, lies unutilized in the country because opportunities for education and training are simply outside the reach of large sections of Indian society. This is not merely socially unjust, it is economically wasteful. There is no reason to believe that this simple truth is beyond the comprehension of the leaders of business and industry in India. If we are to devise more imaginative policies of affirmative action, we must put behind us the belief that the government, and the government alone, can act from a sense of social responsibility.

There is no reason why the private sector cannot be more actively engaged in affirmative action. But that is not likely to happen so long as affirmative action continues to be equated with mandatory numerical quotas administered under strict bureaucratic supervision. The quota mentality has taken deep roots in India since independence, and it has been a serious obstacle to economic development and social progress. Quotas in private sector employment are bound to give rise to strains in the economic as well as the legal systems whose consequences are likely to be far-reaching.



The move for job quotas in the private sector has come at a time when the Indian economy has begun to change its course. The state is relaxing its hold on the ‘commanding heights’ of the economy to give more room to the market so as to raise the rate of growth through increased competition. It is now realized that the Indian economy cannot do well nationally unless it becomes competitive internationally. Privatization, liberalization and globalization require an employment policy that is radically different from one governed by mandatory quotas based on caste and community. Without the replacement of a rigid and quota-based employment policy by an open and flexible one, the Indian economy cannot maintain the momentum given to it by the reforms started in 1991.

High levels of performance cannot be maintained in the private sector without a flexible system of job contracts. There cannot be a uniform distribution of rewards, including promotions, to all employees irrespective of performance as has become common in the services of the union and state governments. In the private sector, work practices and norms have to be oriented to efficiency of performance rather than seniority and permanence of tenure. There is no reason why in principle employment in the public sector cannot create more room for rewards and incentives, but bureaucratic office tends to be viewed as based on status rather than contract. Permanence of tenure has come to be viewed as a right of the government servant, and the procedures for the termination of services are so complicated as to be virtually unworkable.

Mandatory caste quotas tend to reinforce the element of status as against that of contract in public employment. A government employee is in any case difficult to dislodge from his position; where his appointment is due to a caste quota, it is virtually impossible to terminate his services. Owners and managers of private companies dread nothing more than having to accumulate growing numbers of non-performing employees; they are far more difficult to deal with than non-performing material assets.



In a fluid and changing economic environment, employers are naturally reluctant to hire managers and other employees who will have to be given tenures for life. Job specifications and job requirements change continuously, and a person who appeared to be suitable for a particular position at a particular point of time may turn out to be unsuitable five years or even two years later. This may be because the appearance of suitability was deceptive to begin with, or because the requirements of the company have changed. Mistakes are frequently made in the recruitment of personnel, and a business cannot move forward if it is prevented from correcting its mistakes and replacing unsuitable recruits with more suitable ones.

It is now coming to be widely recognized that the command economy that prevailed until the eighties had for some time been hamstrung by licences and quotas of every kind. Much of the success achieved by the Indian economy in the last ten to fifteen years has been due to the removal of the restraints under which it had to operate in the past. Even if those restraints were necessary in the formative years of a developing economy, they are not necessary any more. If quotas are bad for manufacture, and for imports and exports, how can quotas in employment be economically beneficial?



Moreover, the constitutional propriety of the state imposing mandatory quotas in private employment is open to question. It is difficult to see how the government can dictate preferential policies in the recruitment of personnel to private firms without serious encroachment on the law of contracts. But then, laws can always be changed, and there are enthusiasts among all parties in Parliament who are only too willing to ask for amendments to the constitution. Indian companies may have to bear with some or all of this, but it is difficult to see how foreign companies can be attracted to India if the legal environment is made uncertain and volatile. Clearly, the courts have a crucial part to play here. In the past, where questions of social justice arose, they did not always act consistently or predictably.

As I have already indicated, there is no reason why business and industry should remain indifferent to a problem that is deeply rooted in the structure of Indian society. Affirmative action is a response to a problem that has scarred Indian society for centuries and tarnished its image in the comity of nations. No other society has nourished such deep and pervasive inequalities based on false and superstitious beliefs about inherited ability and character. Those inequalities, and the beliefs and practices on which they are based, are as bad for business as they are for public life, and they cannot be expected simply to vanish of their own accord.



The disenchantment with the state – its corrupt political leadership and its ineffectual administrative executive – has led some people to believe that the market can solve all problems if only it is left free to do so. But the market by itself cannot solve all problems any more than the state can. The natural tendency of market forces is to increase and not reduce inequalities. It is true that the inequalities that arise from competition are different in kind from the hierarchy of castes and communities based on birth. Nevertheless, where there are large disparities between castes and communities, they act as strong impediments against the equalization of life chances. Open competition is in such cases less than fair competition.

In the Indian case the disparities between groups that have come down from the past are so large that policy interventions are essential to mitigate their effects. Unfortunately, the role of social policy in dealing with disparities has been undermined by the enthusiasm for creating more and more rights to solve every kind of problem. The imposition of mandatory quotas on private companies is not a feasible way of addressing the problem of inequalities in the conditions of competition. New and imaginative policies have to be devised if those inequalities are to be reduced. No useful purpose will be served by creating a confrontation between the government and the private sector if a way ahead is to be found.

Instead of seeking to extract its pound of flesh from business and enterprise, the government should encourage private companies to devise their own programmes of affirmative action. To begin with, tax concessions may be offered to companies that diversify the social composition of their employees. It will be in the long-term interest of the companies, and not just in the public interest, to adopt active measures to seek out, stimulate and nourish the vast reservoir of unutilized talent that exists in the socially and educationally backward communities. There should be far greater private investment in education and training. Again, the government should encourage private companies to stimulate and foster talent among members of socially disadvantaged groups.



Here something may be learnt from the American experience. Unlike in India, there the government did not first fix numerical quotas for student admissions and then demand that all universities adopt the same quotas across the board. The universities devised their own programmes and operated them according to their own requirements, arguing before the courts that their preferential policies should be allowed to stand as they did not violate any principle of law.

It cannot be too strongly emphasized that it was the better universities such as Harvard and Princeton – both private universities – that devised the most active programmes in what they believed, correctly, to be their own long-term interest. There is no reason why the better Indian companies should not take the lead in devising active affirmative action programmes for themselves. In this the government should offer them as much help as possible instead of holding out the threat of a uniform system of mandatory numerical quotas.