The problem

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IN the last three decades the question of reservations has been written about and contested widely and with enormous passion. So much so that when the subject comes for discussion today, it evokes a sense of intellectual exhaustion, if not despair. Most people feel that the battlelines are by now fairly well-drawn between the pro-reservation and the anti-reservation lobbies and arguments on both sides are well-known and well-rehearsed. That may be so; yet, despite the many face-offs between the two sides, there has been little dialogue on this subject. Dialogue requires, among other things, an environment in which questions can be freely raised, and objections listened to and addressed with sincerity rather than polemic and ridicule – a condition that has not always been met in the debates on reservations.

Dialogue has also been made difficult by the fact that reservations received a constitutional sanction. In sharp contrast to most other liberal democracies, the Constitution of India provided for equality before the law as well as equality of opportunity. Article 16 of the Constitution, referring to equality of opportunity in matters of public employment, made a provision for reservation of posts for ‘backward class of citizens’. This did not simply accord legal sanction to the reservations; it suggested that the principle of equality of opportunity is readily compatible with the policy of reservations. Since no qualifying conditions were stipulated this fostered the impression that reservation of seats, at least in the public sector was, what might following Rawls be called, a ‘constitutional essential’. As such it required little deliberation, let alone justification.

The situation became more complicated as governments in power, both at the Centre as well as the states, used the available constitutional clause to bracket all issues of social and distributive justice into that of reservations. Politically assertive groups also translated their demands into claims for reservations. In a situation of acute scarcity, reservations became an important asset for accessing valuable resources. The ensuing competition for, and escalation in, the demand for reservations created a division that subsequently became the focus of concern and debate.

Not only did this limit the possibility of any dialogue between the adversarial positions, it also shifted attention from the primary question, ‘How should we pursue the task of social justice in a hierarchical and highly stratified society?’ to the effects of the policy of reservations. While some analysts saw reservations as reinforcing caste identities and compromising merit or efficiency, others dismissed these arguments. They interpreted these statements as expressing the anxiety of the upper castes who feared the social transformation unleashed by reservations. Either way, fundamental questions pertaining to the agenda of distributive justice, the purpose of affirmative action policies and the place of reservations or quotas within that framework, remained largely unattended.

Statements by members of the present government relating to the extension of reservations to the private sector have once again brought the issue of reservations to the centre-stage. They have, in addition to the persisting concerns about distributive justice, affirmative action and quotas, raised serious legal and theoretical problems. The Constitution made provisions for reservation of seats in public employment. It left the private domain out which is now being targeted.

In a liberal democracy no area of life can claim to be outside the purview of law and, by extension, of governmental regulation. From family to industry, all fall under the watchful eye of the law. The world over the law regulates, in varying degree, the relationships of the members of the household; it lays down the limits of what is and is not permissible in the house as much as it does for the open outdoors. Hence, in principle nothing is exempt from public scrutiny and deliberation, but all such interventions in a liberal democracy are justified only when they are aimed at enhancing either the liberty of citizens or fairness of a contract.

In each case the object of state action are procedural aspects, the idea being that substantive ends within the wider principle of equal liberty for all will be left to individuals and particular entities. Policies involving reservation of seats almost always raise liberal anxieties as they blur this distinction and involve prescription of a desired end. While this does not mean that such policies have no place in a liberal framework, it does suggest that reservation of seats require careful consideration; more specifically, they need to be formulated and pursued in a way that fits well with other values cherished in a liberal democracy and enshrined in the constitution.

All public policies entail a fine balance between the different values affirmed in the constitution of a country. The need for this may be more compelling in the case of reservation policy but is by no means peculiar to it. The Constitution of India made space for framing policies involving reservations while affirming the commitment to equality of opportunity. The most basic requirement then is to ensure that reservations do not erode or negate the principle of equal opportunity. To put it in another way, the first question is, how can reservations function in a way that enhances, or at least, respects the principle of equality of opportunity?

The courts have addressed this constitutional necessity by stipulating an upper limit for the seats reserved in institutions and jobs. This is an important step but it still requires consideration of the grounds that enable us to reconcile the principle of equal opportunity with the policy of reservations. In theory this reconciliation is effected by the arguments that (a) reservations seek to ensure a level playing field, and (b) they only seek to compensate those who have suffered harm due to past practices of the society as a whole. Open competition and equal opportunity entail that the race or the competition be fair. If the odds favour some in advance then both the principle of fairness as well as equality of opportunity is violated. Affirmative action, including positive discrimination, enter into the picture here as measures seeking to ensure that no one has a head start in the race.

Affirmative action can take many different forms and may include a wide range of actions – from formulation of anti-discrimination laws and access to social and public goods to special consideration in various spheres of social and institutional life. Further, special consideration may take different forms. It may involve preferential spending, positive weightings, or reservation of seats in favour of the disadvantaged sections. Reservations is thus one of the many kinds of affirmative actions that the state may pursue and it is one that is best seen as a way of supplementing other forms of affirmative action rather than a stand-alone policy.

Thus, if seats are reserved for the disadvantaged sections in educational institutions, then the success of this measure rests crucially upon the existence of other enabling conditions that help children to develop skills and capacities which are essential for performing well in the school. In England and America, for instance, governments often spend money in developing the infrastructural facilities in weak and poor neighbourhoods. They build playgrounds, libraries and community centres so that children here have access to resources that the children of the relatively rich enjoy and which channel their energies constructively while simultaneously giving them an opportunity to hone skills that enable better performance in schools. Such forms of preferential spending are sometimes as important as measures of reservation of seats. In fact, most often they make the difference between a successful and an unsuccessful affirmative action programme.

Affirmative action programmes thus entail a range of policies other than reservations. What needs also to be emphasized is that reservation by itself may be a rather limited form of affirmative action which would of necessity rely more on increasing quotas and lowering the benchmark at all levels rather than providing access to disadvantaged sections on an equal footing. Given the recent tendency to equate affirmative action with reservations, it is equally necessary to recognize that there can be affirmative action agendas even without reservations. As we deliberate on reservation policy today, we need both to accept the need for affirmative action policies as well as to acknowledge some of the weaknesses of the existing policies on reservations.

Two other aspects of the thinking on reservations require serious consideration. First, in India particularly, reservations have often been associated with the absence of merit and efficiency in the workplace. This view has won some legitimacy because of the way the policy is currently practiced. When qualifications are often lowered for those who come in through the reserved quota, the impression created is that merit is being set aside. In a situation where seats are reserved without fulfilling other associated conditions, such as, quality education, reduction in the benchmark is bound to occur.

But this need not be the case, and shortcomings in the existing policy should not be the basis for assessing the policy of reservations. Reservation of seats per se does not require lowering of standards. All it suggests is that all things being more or less equal, a person in the identified category must receive preference. In any case it does not imply that someone without merit and necessary competence would be given the job. Similarly, there is no reason to assume that the communities now being included are without merit and talent. If anything, history provides considerable proof that these groups bring with them new resources and perspectives that enrich public and social life.

Hence, anxieties about reservations bringing in mediocrity or inefficiency are quite misplaced and they confuse the accidental with the necessary condition. At the same time it needs reiteration that arguments coming from the other side are equally unsatisfactory. The claim that reservations in jobs and positions are justified because these communities have been excluded for centuries is indeed problematic. It invokes the principle of compensatory justice and suggests that communities previously harmed must now be suitably recompensed.

There is no doubt that communities that have been the victims of forced segregation have been harmed, yet the language of compensation does not provide an adequate justification for positive discrimination in favour of these victims. Principles of compensatory justice rely on pinpointing clearly the victim and the victimizer and the precise nature of the harm done by the latter to the former. This creates several difficulties as the degree of harm suffered may vary within the identified community.

Even when all the victims are supposed to be harmed equally, it remains to be seen whether all the other members of society were victimizers. If some fought alongside the victims for their freedom should they be treated as victimizers and expected to sacrifice seats and positions? Reservations, which are the strongest expression of positive discrimination, cannot therefore be justified adequately on grounds of compensation for past injustices.

There is need to address the issue of existing inequalities and continuing injustice. But neither arguments relying on compensation nor those using the language of rectifying past wrongs offer viable answers. Indeed, as Hegel reminds us, in the act of rectifying past wrongs we may create new wrongs. Consequently, as we work to create a society that is free from existing structures of inequality and hierarchy, these moral vocabularies that posit reservations as matters of right, or as being intrinsically ‘right’ or ‘wrong’, need to be replaced with a framework where we have a reasoned evaluation of what is appropriate, or unwise, in the pursuit of a given goal in a specific context.

The Greek philosopher Aristotle maintained that engagement in politics required men with practical wisdom, who would deliberate both on the ends to be pursued as well as the appropriate means of realizing those goals. The idea being that what may be necessary and reasonable in one context may not be so in another. Each situation therefore calls for a reasoned evaluation rather than the application of a pre-given truth.

This is the perspective from which we need to approach the issue of reservations and debate the extension of reservations to new categories of recipients and to new areas of economy and polity. It is pertinent here to recall that policies of affirmative action have a long history in India but when the Constitution of independent India made space for them it was not on account of retaining some continuity with the past. If anything, it was the desire to create a society very different from that which existed in the past that prompted such measures as reservations of seats.

Reservations provided to the Scheduled Castes and the Scheduled Tribes were visualized as an instrument of inclusion. Ambedkar, who played a crucial role here, feared that existing social prejudices would result in the continued exclusion of the Scheduled Castes from the political process. This is why he advocated reservations as a special measure to bring in the voice of the erstwhile excluded and segregated populations in the decision-making process.

The inclusion of these communities in the public services was similarly expected to fulfil an essential condition of democracy. Ambedkar felt that the absence of the ‘depressed’ communities from public services, such as, police and local administration, might imply that the atrocities against them would remain unregistered and unacknowledged. Hence, it was to ensure that these communities can exercise their rights as equals that reservations were favoured in the public services. The fact that these measures of inclusion were likely to bestow a range of additional benefits, such as, social and occupational mobility, new role models for members of the community, a sense of dignity and respect, were significant but these were in the nature of derivative goods. The primary reason for reservations was the goal of inclusion in the face of existing social prejudice.

It was evident to him that reservations could not erase existing prejudice; indeed their purpose was not to end social prejudice. He knew that social prejudices that had operated in society for thousands of years would not vanish in ten years. Yet, he insisted that reservations should be time bound and that at the end of ten years the policy should be assessed by the Parliament. Ambedkar recognized that policies of reservation that seek to enhance equality are envisaged as temporary measures whose continuation or extension needed to be discussed and debated with the change in context and circumstance.

The Scheduled Tribes were in many ways different from the Scheduled Castes, but in their case too reservations were a way of including them into the polity. Without reservations in legislative bodies, many felt that their distinctive needs and perspective might remain unrepresented. In both cases reservations were linked to overcoming legal and social barriers in the path of political participation and representation. Reservations were, in this sense, an instrument for the effective functioning of democracy.

Over the last 55 years the policies on reservations have changed significantly and this has yielded several paradoxes that compel careful consideration. Perhaps the most striking and far-reaching change has come in the rationale for seeking and granting reservations. If inclusion was the primary concern earlier, it is adequate representation and social transformation that justify reservations and generate new demands for the extension of this policy. Two things have occurred as a consequence of this.

One, the democratic commitment to inclusion targeted communities that had suffered on account of forced exclusion or segregation. The concern for social transformation has thrown the doors open to many new categories of deprived groups and communities. Since the latter focuses less on the cause of deprivation and more on the circumstance of deprivation, demands for reservations have steadily increased.

Two, the changed rationale has placed a question mark against caste-based reservations. Since caste was the ground on which some communities had previously been excluded and segregated, caste offered an appropriate criterion for identifying those who needed to be included as equals. However, when the concern shifts to minimizing backwardness/deprivation the relevance of caste as the basis of identifying beneficiaries itself becomes debatable. While there may be a correlation between low caste and low income, there are groups in every religion and caste that are deprived. Should they not receive some consideration? In other words, the changing concerns of the reservation policy raises the question about what constitutes ‘backwardness’? Is income and wealth a more adequate basis for identifying the least advantaged in society? If, however, caste remains the operative criterion, should we not distinguish between members who are better off than the rest of the community.

These questions arise sharply in the context of the shift in the thinking on reservations. But they reveal the contradictions and limitations in the existing policy framework. The focus on transformation and development also raises the issue of the efficacy of reservations as a policy. Pitted against the structural change affected by policies like land reforms on the one hand, and the potential created by the growing political presence of the marginalized populations even in the absence of reservations, the need to rely on reservations for achieving the goal of social transformation has itself become a matter of dispute. Today, both the continuance of the policy of reservations and the manner of its operation require public debate. It is not as if the consensus around reservations has broken down, but that fresh consensus has to be built through reasoned arguments between contending viewpoints.

As we consider the necessity of extending reservations for identified communities in the private sector, we need to reflect carefully on the rationale of reservations as well as consider the best possible way of achieving the desired goal of social justice within the framework outlined by the constitution. This task acquires greater urgency when we consider that the constitution affirmed equality before the law and equality of opportunity; it provided space for formulating policies of reservations but spoke only of public services in this regard. Concerns of representation and inclusion are compelling when we are dealing with public institutions of a democratic polity but the same cannot be said about the private sector. Hence, as we formulate policies for the latter in an increasingly liberalizing economy, accommodating the values enshrined in the Constitution with the concerns of social justice may require a willingness to innovate and explore new ideas and policy perspectives.

At the theoretical level, we have rarely considered the possibility of using anti-discrimination laws to pursue the ideal of equal opportunity. Likewise, we have not given sufficient attention to the role of affirmative action, other than reservations. Reservations in turn have remained delinked from other policies involving redistribution of material goods; and the role that distribution of non-material goods can play in promoting social justice has remained neglected. So far affirmative action programmes have been prompted by the concern for equality. Should they now be applied to promote diversity? What policies would be required for pursuing the ideal of diversity as distinct from that of equality? Either way, what must remain inviolable if the principle of equality before the law is to have any meaning at all?

If these are a few of the conceptual and theoretical issues that face us, problems presented by the existing policy packages involving affirmative action and reservations are many more. To analyze the latter we would need to take cognizance of the diverse range of policies initiated in different states along with the changes that have gradually been introduced through the acts of various commissions and the judicial institutions. The enormity of the task ahead only underlines the urgency to take a step, however small, in this direction. Dialogue is not just a political necessity of the hour; it is an essential and indispensable condition of policy formulation: one that makes a crucial difference between politics from public affairs in a democracy.