Affirmative Actions

The freedom struggle in India was largely an elitist participation in the beginning. The ‘Constitutionalists’ as they were called relied on Constitutional methods of pleadings and petitions for registering demands that largely reflected the sentiments of the elite and intellectual class. They realized the importance of public support quite late in the course of freedom struggle. But public support needed highlighting public demands. Demands that could have directly impacted poor and common people. But even while raising public demands, it was only weakly realized that the problems faced by the common people of India also depended on the strata of society to which they belonged. Here becomes the theory of Dr. B.R. Ambedkar both important and significant. According to him, the Hindu society is inherently casteist. Since India has an overwhelming Hindu majority in its demography, people identify themselves and are identified by their castes more than by any other parameter of identity. I am talking of a time before the independence. So, you may be tempted to feel that the caste identity of the people of independent India may have become obsolete to a large extent. After all, so many policy initiatives have been undertaken in the direction to make it redundant. But I am afraid to say that it is not the case even after 70 years of the Indian Independence. People still inquire about each other’s caste due to no significant reason other than just for the sake of knowing it. Hence, we have to carry the memory of our caste till date for any present and even future references. Is this the India that Dr. B.R. Ambedkar imagined while drafting the Indian Constitution? It is difficult to say what he forecasted for the future of the Caste System in India. It is even possible that he could already foresee that the situation would be just like the way it is. Probably due to the same reason, he devised a method of affirmative action in a to be ‘liberal democracy’. It was purely his own life experiences and intellectual ability that landed him in the position of the President of the drafting committee of the Indian Constitution. In the debates of the Constituent Assembly, he made the following important remark. He said

“One likes to ask whether there can be anything new in a constitution framed at this hour in the history of the world….The only new thing, if there can be any, in a constitution framed so late in the day are the variations, made to remove the failures, and accommodate it to the needs of the country.”

I shall attempt to justify the above remark in the context of affirmative actions that the Constitution promises to the underprivileged people who continuously lived under social discrimination for centuries. I shall particularly focus on specific articles of the Indian Constitution, which are relevant in the context of affirmative actions. Let us first briefly understand what they mean.

Article 14 states that all persons within the territory of India shall not be denied ‘equality before law’ and will have ‘equal protection of laws’. ‘Equality before law’ means that everybody shall be treated equally before the law of the land. Nobody shall enjoy any privilege in terms of his relation to the law. This phrase has a negative connotation attached to it to some extent. ‘Equal protection of laws’, on the other hand, is a positive concept in the sense that two persons cannot be equated just because they both are within the territory of India. Their social identity also features in the comparison. This means that one who does not have the ways and means to live a dignified life can be provided with some sort of state support. I have somewhat extrapolated the consequence of Article 14, but in anticipation of the other articles that I am going to talk about.

Article 15 states that ‘the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ It can simply be understood as follows: ‘the state shall not discriminate against any citizen on grounds only of those parameters of identity that is not within their choice.’ A citizen of India cannot enjoy any special provision only because he or she belongs to any particular community or is a resident of a certain province of the state.’ But this article does not prevent the state to make special provisions for a specific community. The condition is that the grounds of action include, apart from the above parameters, some other criteria which does not fall in the list of the above parameters. It means that a second criteria, unrelated to the above parameters, is essential to be considered for enabling such provisions that are constitutionally allowed and have constitutional sanctity. Such special provisions or actions are then called ‘affirmative actions’ rather than ‘discrimination’. Thus, there is a fine line between a ‘discriminatory policy or law’ and an ‘affirmative action’. A large proportion of people who are non-beneficiaries of such ‘affirmative actions’ fail to realize this fine line. It is simply because they are not able to empathize with the second criteria considered as a necessity for such actions. Absence of such interventions by the state would lead to a status quo of conditions for such communities. This would hinder such communities to truly identify with and benefit from the principle of equality.

Article 14 and 15 talks about Social and Political equality only, which alone is incapable of satisfying the principle of equality. Hence, there needs to be a constitutional basis for establishing the much-needed economic equality in the society. The other rights are not feasible to be fully realized without such a constitutional basis. Article 16 fills this gap by stating that ‘the state shall not discriminate against the citizens in case of public employment on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.’ It again protects the citizens against unjustifiable discrimination by the state. But it does not prevent the state from taking ‘affirmative actions’ for specific classes of citizens. The only condition is to cite justifiable causes unrelated to the parameters of identity which a citizen does not choose to live with. That a second cause is always cited to give the ‘affirmative actions’ the constitutional validity is a very important idea to realize.

In India, the second cause or criteria happens to be ‘social and educational backwardness’ of classes. This criteria figures in various clauses of the articles related to fundamental rights themselves. But it becomes more apparent when we see the fundamental rights in the broad context of the preamble and more specifically in the light of the ‘directive principles of state policy.’ Article 46 states that ‘the state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.’ This article clearly highlights the vision of the state related to establishing social, political and economic equality. This directive principle for the state is constructed to guide the state in making policies for reversing the social and educational backwardness among specific classes. It stems from the realization of historical injustice preferred to them due to the hierarchical framework of caste system in the Hindu society.

According to Ambedkar, caste system not only divides the labour of the society but also divides the labourers. Identified and fixed by specific castes, a graded hierarchy of labourers has been firmly established in the society which does not let the labourers climb up the ladder of hierarchy. The main challenge for the society is to enable them attain the same level of literacy and social empowerment as the upper castes. Illiteracy and ignorance are imposed upon the lower classes of people by the continuous and brutal denial of education and other social freedom. Due to this, they have become incapable of uplifting themselves as a community by competing with the upper classes on an apparently equal but truly unequal pedestal. Education and social empowerment can be acquired at an individual level because there are no constitutional restrictions. But that alone does not translate to the literacy and social empowerment of the community, at least in a short duration of a few decades. It is a long process that the community has to go through, even if the social conditions are enabling and encouraging. But instances of discrimination are profound and are both visible and invisible. Constitutional directives and obligations of non-discrimination have not been too successful in changing the reality. Those discriminatory practices which are visible are comparatively easy to deal with from an administrative point as they can be brought to justice by law. But the invisible strands of discrimination stems from the mental rigidity of the upper castes who do not let the idea of equality sink in their imagination.

This is particularly disturbing and very hard to deal with. People still identify themselves with their caste and thereby create a structure which forces the others also to identify themselves with their castes. This leads to the continuation of the age-old practice of imposing the menial occupations like sewage cleaning and manual scavenging on to castes which lie lowest in the hierarchy. This mental rigidity has proven to be very difficult to loosen given that the education and awareness about caste system and it being a prime cause of the misfortunes of certain communities, seems not very successful. This means that people do not realize the depth and immensity of the problem which has proved to be a bane to the society. They may not even see it as a bane in the first place. They do not understand the true significance of placing an issue right at the core of fundamental rights which otherwise could have indicated that it can be solved by policy interventions alone. This is what, I suppose, is lacking from the state’s efforts to eradicate the age-old tradition.

India is a liberal democracy by design of the constitution. The constitution gives utmost importance to the individual rights of the people be protected against the possible suppression of the state. But at the same time, historical reasons necessitated the Indian state to undertake the welfare of its people with at least the same priority. Liberal Democracies historically did not believe in welfare programs for specific communities. This is because this idea is opposed to the capitalist form of economy which is a natural product of the right to individual liberty. The states which allowed capitalism to be the wheel of the state economy could not, in principle, talk about welfare.  It would have meant to redistribute the earnings of the individuals of the state in such a manner as to create an egalitarian society – a society with inequalities in income made insignificant if not zero. This would have inherently meant to forego part of the individual liberty that is guaranteed by the constitution of liberal democracies. Thus, India needed to devise a method to create a system which treated individual liberty on an equal footing as that of equality. It was realized that individual empowerment is not enough to create an egalitarian society in India which has witnessed inequality in the class or community level. This inequality proved even more resilient in India due to the static nature of caste inequality unlike economic inequality which is dynamic in the sense that incomes and wealth are functions of time. Therefore, it was much essential to address the issue of discrimination fundamentally. This could only be possible by including it among the justiciable fundamental rights of the people and not merely leaving it as a matter of policy deliberations which are dependent on the wishes and ideology of the government of the day.

It is also important to understand what stopped the Constitution makers from going further than just declaring the fundamental right of equality and non-discrimination. They could have made affirmative actions for certain classes a constitutional obligation for every government of the state. But it was not done and the specific actions have been delegated to the government of the day. This is also a partial reason that does not let the debate on ‘reservation’ – the name given to the affirmative action policy of the state – to settle forever. This stance of the Constitution makers has to partially do with the then financial situation of the state. The state could not take on the task of providing reservations, scholarships and other welfare measures to certain communities unconditionally. There was and is a budget constraint for the state due to which the task could not and cannot be made binding on the state. It can at most be a conditional obligation on the state. But that is half the reason. The other half has to do with another ideology that believes in a system of proportional representation for each community. Reservation quota in admissions to educational institutions or in public employment should be decided on the basis of the changing gap between the proportion of disadvantaged people in population and the proportion of their representation in such institutions or organizations. As the gap changes, the policies and actions need to be revised continuously meaning that reservations may not be needed some day in the future. It is believed that adequate representation would lead to sufficient political and social empowerment of the classes so that they would be able to make assertive demands in the society. This would result in changing the societal structure and naturally pave way for the society to become more egalitarian.

It is also believed by some that economic equality in the society, which could be brought about by certain affirmative actions, would automatically lead to bridging of social inequality in the society. This idea was firmly opposed by Ambedkar who believed that caste system is there to stay as strongly in the Indian society even if society attains economic equality to a large extent. His idea has proven to be right. India has been able to lift millions out of poverty and is continuously and incessantly working in the path of eradicating it completely. But that has not much altered the social status of the deprived classes. Ironically, they are often seen as being in an advantaged position by people who do not individually benefit from the provisions of reservation. The deprived classes were denied of opportunities of education and employment and were put to social abuse for centuries. The difficulties they have to face even now both economically and socially to uplift and integrate themselves with the face of independent India is unimaginable. Reservation in admissions and public employment is just a way to create a level playing field for every community.

Freedom is not merely an assertion of political sovereignty or independence. It carries an equal weightage, if not more, of social and economic freedom as that of political freedom. Freedom of a state from political domination of a foreign power alone cannot provide the joy of freedom to the classes who still feel discriminated and alienated in the society. They do not feel much difference in their social status and dignity. The old discrimination is not confined to the chapters of history only but is quite apparent today. It is so apparent that it still attracts the best sociologists and social scientists to debate the causes of its resilience as a formidable wall dividing the Indian society.

             By - Abhijeet Roy