Rhetoric as argument: Social justice and affirmative action in India, 1990

Modern Asian Studies

Volumn 44, Issue 4, 2010, Pages 675-708

  Bajpai, Rochana ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CASTE SYSTEM; DEMOCRACY; LEGISLATION; POLITICAL THEORY; SOCIAL JUSTICE;

INDIA;

EID: 77954539662     PISSN: 0026749X     EISSN: 14698099     Source Type: Journal    
DOI: 10.1017/S0026749X09990035     Document Type: Article

References (114)

1. For colonial history and regional variations, see Marc Galanter, Competing Equalities, Law and the Backward Classes in India (New Delhi: Oxford University Press, 1984);
2. Susan Bayly, Caste, Society and Politics in India from the Eighteenth Century to the Modern Age (Cambridge: Cambridge University Press, 1999).
3. In Indian official usage and public debate, the term 'Backward Classes' is used to designate disadvantaged groups entitled to special treatment from the state. In its inclusive usage, the category denotes the Untouchables (Scheduled Castes or Dalits), tribal groups (Scheduled Tribes or adivasis) and Other Backward Classes (OBCs). The OBCs comprise mainly lower-caste Hindu groups (non-Untouchable) and equivalent non-Hindu groups, identified on the basis of caste and class characteristics. On the identification of beneficiaries, see Galanter, Competing; Laura Dudley Jenkins, Identity and Identification in India: Defining the Disadvantaged (London: Routledge Curzon, 2002). The Indian Constitution, unlike its US counterpart, explicitly sanctions preferential treatment for disadvantaged groups - see in particular articles 15 (4), 16 (4), 46, 330. Whereas national education and employment quotas for Dalits and adivasis are long-standing, those for the OBCs are a relatively recent phenomenon. OBC quotas in the national bureaucracy were proposed by the Janata Dal government in 1990; these were eventually instituted in 1993 after broad endorsement by the Supreme Court (IndraSawhney v. Union of India, 1992). OBC quotas in higher education institutions were proposedby the Congress government in 2006; these were instituted following the Supreme Court's authorization of supporting legislation (Constitution 93rd Amendment Act 2005 and Central Educational Institutions Reservation in Admission Act 2006 in Ashoka Thakur v. Union of India 2008). OBC quotas are limited to 27 per centby a Supreme Court decision holding that total quotas should not exceed 50 per cent (Balaji v. state of Mysore 1963).
4. While its prominence in political rhetoric is recent, social justice appears in the Indian Constitution and has been commonly usedinpolicy debates since independence to denote special consideration for disadvantaged groups. It finds frequent mention in the report of the first Backward Classes Commission, better known as the Kalelkar commission after its chairman; see Report of the Backward Classes Commission, vol. I (New Delhi: Government of India, 1956).
5. The second Backward Classes Commission, commonly referred to as the 'Mandal Commission' after its chairman B. P. Mandal, was set up in 1978 by a Janata Party government and submitted its report in 1980. Its key recommendations included quotas of 27 per cent in central government jobs and higher-education institutions for the OBCs. See Reservations for Backward Classes: Mandal Commission Report of the Backward Classes Commission, chapter XIII (New Delhi: Akalank Publications, 1980). The report was buried under Congress governments of the 1980s;
6. it was catapulted into public debate by the Janata Dal-led government's decision in 1990 to implement the Mandal report's proposals of job quotas in the national bureaucracy.
7. The 1990 Mandal debate was not the first instance of expansion of employment quotas in independent India. Most Indian states had instituted quotas for 'backward' groups, defined mainly by caste and community membership; see Galanter, Competing, chapter 6, for details. The 1990s, however, saw the consolidation and extension for the first time at the national level of the ad hoc and irregular trajectory of expansion in state-level policies and in this sense represented a new departure.
8. These parties include notably the Janata Dal and its various offshoots, such as the Samajwadi Party and the Bahujan Samaj Party. For details of these parties and their positions on social justice, see Christophe Jaffrelot, India's Silent Revolution (London: C. Hurst and Co., 2003);
9. Kanchan Chandra, Why Ethnic Parties Succeed: Patronage and Ethnic Head Counts in India (Cambridge: Cambridge University Press, 2004).
10. This paper focusses on caste-based quotas which were the centre of contention in the Mandal debate. Debates over quotas for Muslims and women are outside its scope. The Mandal Commission report included non-Hindu communities among OBCs, who were identified regionally as were low-caste Hindu groups. Muslim OBCs are among the worst off in terms of socio-economic indicators. For a discussion of their position and different state patterns of quotas, see the Report on Social, Economic and Educational Status of the Muslim Community in India 2006 (Sachar Committee Report). Proposals for legislative quotas for women have been pending before the parliament since 1996;
11. on the controversy, see, for instance, Nivedita Menon, Recovering Subversion: Feminist Politics beyond the Law (Urbana, IL: University of Illinois Press, 2004).
12. See for example Jaffrelot, Silent; Chandra, Ethnic Parties; Sudha Pai, Dalit Assertion and the Unfinished Democratic Revolution: The Bahujan Samaj Party in Uttar Pradesh (New Delhi: Sage, 2002).
13. On the conceptual analysis of political ideologies, see Michael Freeden, Ideologies and Political Theory: A Conceptual Approach (Oxford: Clarendon Press, 1996).
14. See for instance, Rosalind O'Hanlon, Caste, Conflict, and Ideology (Cambridge: Cambridge University Press, 1985);
15. Gail Omvedt, 'The Anti-Caste Movement and the Discourse of Power' in T. V. Satyamurthy (ed.), Region, Religion, Caste, Gender and Culture in Contemporary India (New Delhi: Oxford University Press, 1996), pp. 334-54;
16. Valerian Rodrigues, 'Ambedkar on preferential treatment', Seminar 549 (May 2005) http://www.India-seminar.com/semsearch.htm;
17. D. L. Sheth, 'Ram Manohar Lohia on caste in Indian politics', in Ghanshyam Shah (ed.), Caste and Democratic Politics in India (New Delhi: Permanent Black, 2002), pp. 108-33.
18. The pre-eminent work is Galanter, Competing.
19. See Quentin Skinner, 'Some Problems in the Analysis of Political Thought and Action', Political Theory, 2, 3 (1974), pp. 277-303.
20. Rajya Sabha Debates (henceforth RSD) 7.8.1990, col. 309.
21. While outright opposition was rare, there were differences in the degree of support evinced by different political parties for OBC quotas in the parliamentary debate. The Janata Dal, the main party in the ruling National Front coalition, unreservedly championed quotas for the OBCs and opposed the use of economic criteria to exclude the better-off OBCs. Left parties - CPI, CPI (M), Forward Bloc - were strong supporters of OBC quotas but pressed for priority for poor 'backward' castes. The Hindu nationalist BJP, an ally of the ruling Janata Dal, pressed for the inclusion of upper-caste poor and priority for poor 'backward' castes. The Congress party too favoured economic criteria to exclude the better-off among the OBCs and the extensionof quotastopoor upper castes. The BJP and the Congress were perceived as opposed to OBC quotas. Some shifts occurred in the positions of all parties during the course of the debate in response to public opinion. The English language press was vociferous in its disapproval; campuses around the country erupted in protests by students, mainly upper caste, with several cases of self-immolation.
22. Michel Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (New Haven, CT: Yale University Press, 1991), p. 2.
23. In theoretical discussions of equality, a distinction is commonly drawn between social equality, denoting equality of status or an ideal of a society free from hierarchies, and distributive equality, concerning the distribution of resources among individuals in a society. See David Miller, Principles of Social Justice (Cambridge, MA: Harvard University Press, 1999), pp. 231-3. In my usage, social equality is not regarded as independent of social justice, but the distinction between equality of status and distributive equality is maintained.
24. Translation from Hindi, RSD 8.8.1990, cols. 361-4. Hukumdeo Narayan Yadav, another Janata Dal spokesman, declared, 'It is not a question of poverty, it is of selfrespect.' LSD 4.9.1990, col. 409.
25. ' The rule is for the whole class and section. If the whole section comes up, then it is all right. The rule is not for individuals.' RSD 9.8.1990, col. 251. This construal of social justice encapsulated several themes found in the thought of lower-caste leaders since the late nineteenth century - the emphasis on the denial of respect, political power for undoing the effects of caste and the advancement of the community as a whole rather than of individuals within it. Important theorists include Jyotiba Phule, Dr B. R. Ambedkar and Ram Manohar Lohia
26. (see O'Hanlon, Caste; Omvedt 'Anticaste'; Sheth 'Ram Manohar Lohia'; Rodrigues, 'Ambedkar'). 19 RSD, 1.10 1990, col. 45.
27. See also Congress President Rajiv Gandhi's speech, Lok Sabha Debates (henceforth LSD), 6.9. 1990, cols. 487-90.
28. See RSD 27.8. 1990, col. 286. Such suggestions were also mooted by supporters of the government's policy from Left parties.
29. While these two conceptions of social justice represented the broad positions of advocates and critics of the government's quota policy, in practice, there was some overlap between these positions. For instance, Janata Dal representatives occasionally argued for quotas on grounds that the lower castes were deprived in material terms.
30. John Baker, Arguing for Equality (London: Verso, 1990), pp. 4-5.
31. Congress President Rajiv Gandhi's speech in the Lok Sabha criticised the government decision as seeking to benefit the well-off OBCs: '[O]nce an individual has risen above a certain level...does his family need it...?' LSD 6.9.1990, col. 490.
32. Galanter, Competing, p. 170.
33. Miller, Principles, p. 239.
34. Gurpreet Mahajan, Identities and Rights: Aspects of Liberal Democracy in India (New Delhi: Oxford University Press, 1998), p. 154.
35. The most common example was that the OBCs constituted 52 per cent of the population and had only 4 per cent class I jobs. Similar claims were made regarding the under-representation of Muslims and women.
36. Anne Phillips, The Politics of Presence (Oxford: Clarendon Press, 1995), p. 21.
37. This discussion draws David H. Rosenbloom, Federal Equal Employment Opportunity, Politics and Public Personnel Administration (New York: Praeger Publishers, 1977);
38. Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996); Phillips, Presence.
39. For some of these objections, see Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Polity Press, 2001), pp. 90-8.
40. Rosenbloom, Federal, pp. 38-9.
41. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), pp. 43-4.
42. Cass Sunstein, 'Preferences and politics', Philosophy and Public Affairs, 20, 1 (1991), pp. 3-34.
43. Melissa Williams, Voice, Trust and Memory: Marginalised Groups and the Failings of Liberal Representation (Princeton, NJ: Princeton University Press, 1998), p. 17;
44. Nancy Fraser, Justice Interruptus: Critical Reflections on the 'postsocialist' condition (New York: Routledge, 1997).
45. On how the clustering of groups at certain social or occupational locations alerts us to a likely inequality in initial opportunities, see for instance Anne Phillips, 'Defending Equality of Outcome', Journal of Political Philosophy, 12, 1 (2004), pp. 1-19.
46. Thus, for instance, Somnath Chatterjee of the CPI (M) argued in favour of OBC quotas: 'We are against casteism, division of people on the basis of caste. But can we deny the historical fact, which is there that such people belonging to certain castes are today the most exploited, socially, educationally and also economically?' LSD 5.9.1990, col. 479. The Mandal Commission report had sought to establish the low-class status of the castes identified as OBCs.
47. On the general claim, see Phillips, Presence, p. 47;
48. Will Kymlicka, Multicultural Citizenship, A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), p. 141.
49. LSD 6.9. 1990, cols. 478-9.
50. See also Chitta Basu, LSD 4.10. 1990, cols. 166-8.
51. See Charles Beitz, Political Equality: An Essay in Democratic Theory (Princeton, NJ: Princeton University Press, 1989);
52. Phillips, Presence, p. 36.
53. See Hannah Pitkin, The Concept of Representation (Berkeley, CA: University of California Press, 1967);
54. Phillips, Presence.
55. Phillips, Presence, p. 34.
56. Andre Beteille, The Backward Classes in Contemporary India (New Delhi: Oxford University Press, 1992), p. 75.
57. David Miller, 'Democracy and social justice', British Journal of Political Science 8, 1 (1978), pp. 1-19.
58. Phillips, Presence, p. 39.
59. LSD 6.9. 1990, cols. 477-8.
60. On constitutive and analogical linkages between concepts, see Miller, 'Democracy'.
61. On the democratic goods served by affirmative action, see Elizabeth Anderson, 'Integration, affirmative action and strict scrutiny', New York University Law Review 77 (2002), pp. 1195-271;
62. in the context of Indian debates, see Omar Khan, Why Preferential Policies Can Be Fair (Runnymede Trust: London, 2006).
63. The extent to which social justice should concern itself with the distribution of status, respect and power is a matter of dispute. For an influential argument that egalitarian justice should concern itself primarily with equality as a social relationship rather than the distribution ofdivisible material goods, see Elizabeth Anderson, 'What is the point of Equality?' Ethics 109 (1999), pp. 287-337.
64. Criticisms of OBC quotas were muted in the parliamentary debate but were prominent in the wider public debate. For a critique of OBC quotas as inherently sectional, see, among others, Dipankar Gupta 'Positive discrimination and the question of Fraternity: Contrasting Ambedkar and Mandal on reservations', Economic and Political Weekly 31-32 (1997), pp. 1971-78;
65. A. M. Shah, ' Job reservation and efficiency', in M. N. Srinivas (ed.), Caste: Its Twentieth Century Avatar (New Delhi: Penguin, 1996), pp. 174-94.
66. Galanter, Competing, chapter 16.
67. In contrast with Galanter's schema, where general welfare arguments necessarily have groups as their units of calculation and are not justice claims, my usage admits the category of consequentialist justice arguments, which in turn can apply to both individuals and groups. A large philosophicallegal literature exists on compensatory justice, equal opportunity and social utility rationales for affirmative action, based mostly on the experience of the United States. Key contributions can be found in Marshall Cohen, Thomas Nagel and Tim Scanlon (eds.), Equality and Preferential Treatment (Princeton, NJ: Princeton University Press, 1977);
68. Steven M. Cahn (ed.), The Affirmative Action Debate (New York and London: Routledge, 2002);
69. Hugh LaFollette (ed.), Ethics in Practice: An Anthology (Malden, MA: Blackwell, 2007).
70. Janata Dal MP Ram Dhan quoted approvingly from the Kaka Kalelkar report: 'Being convinced that the upper castes among the Hindus have toatone for the neglect of what they were guilty towards the lower classes, I was prepared to recommend that all special help should be given only to the backward classes.... Even the poor and the deserving among the upper classes could be safely kept out from the benefit of this special help. ' LSD 5.9. 1990, col. 444.
71. The invocation of Hindu beliefs regarding atonement for past sins also provides a way around another problem with the costs of quotas, namely that these are unfairly distributed in society and have to be borne by a few, relatively weak members of the upper castes. It blurs the issue of the distribution of costs within upper castes, as every member of these groups is presumed to share moral responsibility for past injustices against the lower castes.
72. For arguments in the Constituent Assembly debates, see Rochana Bajpai, 'Constituent Assembly debates and minority rights', Economic and Political Weekly, 35, 21/22 (2000), pp. 1837-45.
73. Reparations do not in theory require that the victim group be disadvantaged in socio-economic terms, although in practice this has often been the case.
74. See for instance Miller, Principles. Several theorists disagree with the view that justice demands that jobs be allocated by merit because for instance they reject the idea of desert (e.g. Rawls) or because they reject the huge differentials in material rewards and esteem that are attached to meritocratic allocation of jobs (e.g. Nagel).
75. Rosenfeld, Affirmative, p. 98.
76. On the general argument, see for instance Ronald Dworkin, 'Bakke's case: are quotas unfair?' in A Matter of Principle (Oxford: Clarendon Press, 1986);
77. Gutmann and Thompson, Democracy; Miller, Principles.
78. LSD 4.10. 1990, col. 195.
79. See Hukumdeo Narayan Yadav, LSD 4.9. 1990, col. 406. Several speeches cited examples from Hindu epics such as the Ramayana and the Mahabharata of how exceptionally gifted individuals from the lower castes had been forced to forsake the vocation suited to their skills and accept instead the calling dictated by the caste of their birth. The most frequently cited episode in political speeches was the legendary archer Eklavya's sacrifice of his thumb to his guru Drona from the Mahabharata. In political arguments for and against quotas, myths were often deployed as historical evidence in support of claims.
80. Thomas Nagel, Mortal Questions (Cambridge: Cambridge University Press, 1979), p. 91.
81. For criticisms of merit-based objections, and a defense of affirmative action in terms of equalizing opportunities, see also Luke Charles Harris and Uma Narayan, 'Affirmative action as equalizing opportunity: challenging the myth of "preferential treatment" ', in LaFollette (ed.) Ethics in Practice, pp. 492-503. Harris and Narayan defend affirmative action as necessary for 'levelling the playing field' for groups facing ongoing institutional discrimination on account of class, race, gender and disability.
82. RSD 1.10. 1990, cols. 97-8.
83. As Galanter has pointed out, preferential treatment was defended here as a mechanism which would enable the identification of individuals who would have been selected on merit grounds were it not for obstacles such as educational and social disadvantages that were the result of past discrimination. Galanter, Competing, p. 553;
84. see also Bhikhu Parekh and Subrata Mitra, 'The logic of anti-reservation discourse in India', in S. K. Mitra (ed.) Politics of Positive Discrimination: A Cross-national Perspective (Mumbai: Popular Prakashan, 1990), pp. 91-109;
85. Gutmann and Thompson, Democracy. While desert-based considerations suggest that hiring by merit may require some kinds of preferential treatment, these do not support more rigid mechanisms such as group quotas, which entail that a fixed number of positions in an institution be filled by members belonging to particular groups (Miller, Principles). The general problem here is one of justifying mechanisms that take the group as their unit of calculation from the standpoint of desert-based justice that is founded on claims of individuals.
86. Gutmann and Thompson, Democracy, p. 321.
87. Hukumdeo Narayan Yadav declared, 'On the one side you have built magnificent schools in Delhi where children of only high class people get education... On the other side are the children... who get education in the schools which have no roofs and sit on the floor. You want to put both of them on the same footing in competitions. The true philosophy of education is that there should be same education for the son of a king or for a son of the Scheduled Caste. If you have courage... put locks on all the private schools.' LSD 4.9. 1990, col. 411.
88. That criteria irrelevant to the job had come to attach themselves to job qualifications is evidence, as Miller suggests, of 'the existing significantly unmeritocratic order in which jobs tend to be reserved by informal means for particular categories of people, as a result of which norms specific to those groups get attached to the jobs.' Miller, Principles, p. 193.
89. Ram Dhan averred, 'As far as merit is concerned, history bears a testimony that so long as this country had the governance of the so-called meritocratic persons, it had to face foreign invasions and was subjugated.... The Britishers used to say that Indians were an incompetent and inefficient lot. They thought that handing over the reins of power to Indians would bring catastrophic results to the people of that country'. LSD 5.9. 1990, cols. 445-6.
90. LSD 4.9. 1990, col. 414.
91. Gutmann and Thompson, Democracy, pp. 327-28.
92. The report of the First Backward Classes Commission had contrasted considerations of equality of opportunity and efficiency on the one hand, and those of social justice on the other. See Backward Classes Commission, pp. 126, 139.
93. Bajpai, 'Constituent'.
94. RSD 9.8. 1990, cols. 232, 233.
95. RSD 27.8. 1990, col. 355, translation from Hindi. He held that 'the only way we can ensure the welfare of a particular class [is] through the provision of reservation for them.... If we want to bring changes in the society, we will have to bring changes in the bureaucracy also which is a decision making institution.... We have to place the downtrodden in bureaucracy'.
96. LSD 6.9. 1990, col. 535.
97. Prime Minister V. P. Singh advocated quotas as follows: 'When we talk of participative democracy, when we talk of decentralization, we forget one very important structure, bureaucracy. How are you going to give them participative powers?' RSD 27.8. 1990, col. 347.
98. LSD 5.9. 1990, cols. 483-4.
99. See Congress leader and former Prime Minister Rajiv Gandhi's speech, LSD 6.9. 1990, cols. 485-6.
100. RSD 27.8. 1990, col. 343.
101. Bajpai, 'Constituent'.
102. It was argued, for instance, that while social justice might conflict with national unity in the short term, over the long term, the two were in harmony. Social justice was a condition for national strength. Caste oppression was portrayed as the main cause of national weakness in the past. This relied on an alternative narrative of India's history from that found in nationalist versions, one with a distinct iconography, comprising non-Brahmin and Untouchable leaders suchasJyotiba Phule, B. R. Ambedkar, Periyar Ramaswamy and Ram Manohar Lohia.
103. Arguments for quotas for disadvantaged groups as promoting the general interest in development, for example, or democratic citizenship are underdeveloped in contemporary Indian political discourse. For a defence of preferential treatment in higher education in India as a means of integrating members of disadvantaged groups into the societal elite, see Thomas Weisskopf, 'Affirmative action in higher education', Seminar 569 (2007), pp. 69-73. Elite integration, Weisskopf notes, can serve the general interest in a variety of ways-for example by providing the political system with greater legitimacy, strengthening democratic institutions by widening participation and improving performance in jobs requiring knowledge of disadvantaged communities. For an influential defence of affirmative action as facilitating the integration of disadvantaged racial groups into mainstream institutions and thereby furthering a democratic civil society and undermining barriers to opportunity, see Anderson, 'Integration'.
104. It is important to emphasize that arguments for OBC quotas in the Mandal debate drew substantially upon liberal and democratic norms. There is an influential tendency in Indian scholarship to regard social justice as part of an 'indigenous' vocabulary radically opposed to the liberal democratic language of the Englishspeaking political elite; see for instance Yogendra Yadav, 'Electoral politics in the time of change: India's third electoral system, 1989-99', Economic and Political Weekly 34-35 (21-28 August 1999), pp. 2393-99).
105. For debates on OBC quotas in higher-educational institutions, see for instance Economic and Political Weekly 41, 24 (2006);
106. on the extension of reservations in the private sector, see Seminar 549 (2005).
107. Indra Sawhney; see also Dudley Jenkins, Identity, pp. 148-55. The central government's criteria for identifying the 'creamy layer' in its office memorandum dated 8 September 1993 include children whose parents hold constitutional positions, are class I and class II officers of the All-India Central and State Services and equivalent posts in public sector undertakings and private employment, are at the rank of colonel and above in the defence services, are lawyers, doctors, financial consultants and other professionals, belong to families that own irrigated land equal to more than 85 per cent of the state land ceiling laws and have a gross annual income of 100, 000 rupees or more (the income ceiling was raised to 450, 000 rupees in 2008). Proposals mooted in public debate have also sought to combine caste and class criteria to address both group and individual disadvantage; see for instance Satish Deshpande and Yogendra Yadav, 'Redesigning affirmative action: castes and benefits in higher Education
108. Economic and Political Weekly 41, 24 (2006), pp. 2419-24.
109. In Indian political parlance, these parties constitute a 'third front' that has become an enduring alternative to the two main parties, the Congress and the BJP.
110. My point here is not that OBC quotas cannot be defended in terms of the general interest, but that such a case has not been sufficiently made by its current defenders, and that this factor is relevant for understanding their limited national reach.
111. See Miller, Principles, p. 232.
112. Egalitarian theorists differ on how distributive and social equality are related. Key contributions include Anderson, 'Equality'; Phillips, Presence; Nancy Fraser and Axel Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London: Verso, 2003);
113. Young, Justice; Jonathan Wolff, 'Fairness, respect and the egalitarian ethos', Philosophy and Public Affairs, 27, 2 (1998), pp. 97-122.
114. Adam Swift, Political Philosophy: A Beginners' Guide for Students and Politicians (Cambridge: Polity Press, 2001).