A blog for discussions on media, political and cultural issues of South Asian and international significance

Monday, August 29, 2005

An Alternative to Reservations

The recent flap over the Supreme Court’s decision on reservations for admissions to private educational institutions and the government’s reactions to it has put the question of reservations back on the front-burner. This is, in my opinion, where the reservation debate rightfully belongs. Merely because the political consensus in the country says something, does not necessarily mean that it is the correct view; and the Supreme Court’s intervention has brought to the fore the need for an impartial judiciary willing to act as a counter-majoritarian check on exactly such consensuses.
But that bit of hyperbole is not what I’m really concerned about discussing here. What I do plan to deal with is why I believe there is no need for reservations in India, and how the social problems which are ostensibly being corrected by reservations can actually be addressed far less problematically with other methods. Justifications for (and against) reservations can be broadly divided into two categories – consequentialist and moralist justifications. Consequentialist justifications for reservations look at the consequences of reservations as their merits, consequentialist opposition to reservation looks at the consequences as demerit. Similarly, moralist justifications look at reservations as being imperative because of the morality of ensuring social justice, substantive justice etc., whereas moralist opposition looks at reservations being immoral (or unacceptable) because of the essential immorality of the State privileging one community over another. I’m leaving out of the loop here that form of opposition which asserts that reservations (and affirmative action) are immoral because of the inherent superiority of upper castes. While there may well be many people who hold this opinion, I would believe (and hope) that such arguments would not gain much ground in public debate today.
Before I go any further, a distinction must be made between affirmative action and reservations, because this is essential to the argument which follows. Not all forms of affirmative action involve reservations. Affirmative action is a substantive equality enhancing measure which aims at annulling the effects of historical discrimination in a given society. There are thus many forms of affirmative action, many of which do not involve the prescription of quotas, or even legal intervention. There is nothing prima facie inconsistent in supporting affirmative action in principle and yet opposing reservations, something which I am about to do.
Now affirmative action is usually to be justified on a moral ground – that there is a moral right of those who are historically discriminated against to reach a situation where the effects of such discrimination are removed. Hence, arguments against affirmative action must also counter it on the moral ground, that mere formal equality (ensuring non-discrimination by law, for example) is sufficient. I do not intend to go into this debate; I believe that the moral imperatives of affirmative action are strong enough. On the other hand, reservations as a means of affirmative action are often (though admittedly not always) justified on consequential grounds – that given our political systems and the predominance of upper castes in administration and education and public life, it is the most effective means of ensuring affirmative action. This may or may not be true, but I would like to offer a moral argument against reservations, without seeking to present a moral argument against the principle of affirmative action.
There are two levels of argument based on morality against the system of reservations in India today. The first level is an argument from merit, the second is an argument from multiple equality. The merit argument has a simple and a complex merit aspect - the simple merit argument is that merit alone can be the basis for selection by the State, as an offshoot of its commitment to neutrality. This is of course not a meaningful argument in light of our Constitution's providing the State with a socialist mandate, the State can well act in favour of the underprivileged at the expense of the privileged. The complex merit argument is that while the State can privilege certain deprived communities over others, it should not do so in certain fields (e.g. employment, education and so on) because these are fields which either depend wholly on merit for their importance (as it would be in the case of education) or because these are fields which the State does not have the moral authority to determine membership of (e.g. employment). The complex merit view does have some "merit" in it, but the problem with this view is that it could be taken to deny all affirmative action on the same basis.
The multiple equality argument is more convincing. This argument puts forth the view that equality and discrimination occur at many levels. Deprivation and discrimination on the basis of social status, for historical reasons or due to a lack of political empowerment are one form of inequality which requires to be addressed. There are also other forms of inequality which deserve to be addressed - predominantly economic inequality, but also gender and sexual equality. Many advocates of reservations today would recoil from providing reservations purely to those below the poverty line, and perhaps a lesser majority to women and sexual minorities. By providing for reservations for one segment of persons, the State is privileging one form of discrimination over another. Have women, the historically poor and gays faced lesser discrimination than lower castes?
This problem of privileging would not occur in a non-quota based affirmative action system, for example as in a diversity based system. In such systems, those with a higher likelihood of historical discrimination (e.g. the daughter of Dalit farmers in rural AP) are higher placed to gain access than those without such a likelihood of discrimination (e.g. Oxford-educated Brahmin from Calcutta). Such diversity based systems would also go a long way in answering merit-based criticisms of affirmative action (though not always, a diversity based system could provide for "points" to be allotted on different criteria, some of which could relate to historical discrimination).
But a significant problem still remains. Undeniably, SCs/STs/OBCs have been historically wronged in India. Reservations are not only a means of ensuring them a means of overcoming access deprivation, but also a significant measure of the State's owning up to its responsibility for the discrimination suffered by them. This may not be done through non-quota based affirmative action, because such action does not deliver the "sorry" message to targetted communities. What is the solution in these cases of historical discrimination? I would argue that a Truth and Reconciliation process akin to that of South Africa, followed by a national apology and symbolic reparations on the German model would be the appropriate means to acknowledge responsibility for the wrongs committed to SCs/STs/OBCs in particular. The method of distribution of compensation could be through tribunals, to a designated agency, or through programmes for the upliftment and welfare of the underprivileged communities.

Monday, August 15, 2005

Is Islam a "Problem"?

There's been a lot of stuff happening on the listserv. First, there was a war on multiculturalism (how strange that sounds) which started with one assertion that multiculturalism would never work because strong cultures trump the weak, ergo the values of post-Enlightenment Christendom could never co-exist with the umma. Predictably this sparked a lot of outraged posting, at which point I referred to Naomi Klein's latest article in the Nation - Terror's Greatest Recruitment Tool. Klein's argument is that extremism is prompted not by Muslims, but by Western reactions to Muslims, which results in a fomenting of religious hatred in reaction to racism. Klein takes two test cases - Hussain Osman and Sayyid Qutb - to show that merely being Muslim was not what made them take to terror, the perceived (in Osman's case) and real (in Qutub's) mistreatment of fellow Muslims is also responsible for pushing people into extremism. In sum, Klein believes that the problem is "not too much multiculturalism but too little".

This led to an email which critiqued Klein's argument on the ground that Islam per se was the problem, not the treatment of Muslims by non-Muslims, and in order to prevent extremism, Islam necessarily had to change. There were two strands of responses to this -

a. American high-handedness, not some "problem" with Islam, was responsible for extremism (following from Arundati Roy's Come September article). I personally feel this goes too far, Roy does not offer a single word in condemnation of the violence adopted by Islamic extremists, she seems to believe that it's a perfectly natural consequence of Western treatment of the East. A corollary of this argument was that Indian Muslims did not commit acts of extremism in the West because Indian Muslims were not mistreated in a similar way as those who do commit acts of extremism.
b. A more moderate strand, the essence of which was that the problem is not with Islam per se, but with certain forms of Islam, and with some Muslims, not all of them. This is my response, which falls into the second category -

(Note - in a prior email, I argued that in order to say that Islam as a whole was a problem, one would need to show that there is something fundamental to Islam - i.e. in the Qu'ran or the Haadith-which could uncontroversially be regarded as promoting extremism. Where this was not demonstrated, one could not argue that all of Islam was extremist and fundamentalist. The counter was that in order to criticise a religion, how it was practised is all that mattered, not what the religious text said. A comparison was drawn between British Hindus and British Muslims to buttress the point that only Muslims take to extremism as a response measure, not others. I've tried to respond to this as well in what follows)

1. From what I gather, the Klein's point is that the reason some Muslims turn to terrorism is because of factors other than their religion, and its conflict with our supposed tolerance for persons of different faiths and cultures. The counterpoint appears to be that this is not so, because there are problems inherent in the way Islam is practised today which make it easy for terrorism to flourish in Islamic contexts.

2. Here is my first problem with the simplistic assessment in the counter-Klein position. Islam is not the world's first religion which has been used for extremism in its name. Much as we may like not to think about it, Hindus have had a pretty pathetic record of tolerance in the last half century (and even before that). British and American Hindus are large funders of Hindu extremist organisations, whose target is admittedly not the countries of the West, but fellow Indian citizens. Assuming that terrorists are not only Muslims who kill non-Muslims, and that financial and moral support for extremism is also extremism, Hindus have much to account for. Further, there is a large amount of support for Hindu extremist reactions to the perceived "Muslim problem" among Hindus (in India and elsewhere), and as Thariel points out, Lakshman Kadirgamar was assassinated by suspected Hindu extremists. Does this mean that Hinduism is a problem? Of course not, because any interpretation of Hindu texts and values which could be used to justify extremism would be an unquestioned perversion. A religion's significance cannot be separated from its core texts, though the texts of a religion may be misinterpreted by those hostile to the religion to criticise it. So it's perfectly valid to say there is a problem with "some Muslims", or with "extremist forms of Islam", but how can one say there is a problem with "Islam" without detailing what the problematic aspects of the Qu'ran and/or hadit are? Are peaceful Muslims followers of the Church of Scientology? Or is a secular Muslim a bad Muslim?

3. I would disagree with the assertion that no Indian muslim has carried out suicide bombings, or with the broader argument that Islamic extremism in India is absent, yet would use this to further Klein's argument. Most Indian muslims and the majority of Indian Muslim scholars, priests and leaders (like Muslims in Britain and America) condemn acts of terror committed by extremists in the name of Islam. Those who do take to extremism (or organised crime) in India are by and large socio-economically underprivileged youth for whom terrorism/crime is a real option of gaining things they would never else have access to. Political power-players (Hindus and Muslims) also provide tacit support to extremist elements and stand to gain by pulling out the terror card at the elections. Hence, the problem of extremism in India is not a problem of Islam, but a political problem. And given that India has more serious incidents of terrorism a year than Israel and Iraq combined, nowhere is the flaw with the "Islam as a problem" argument proved better.

4. A consequentialist point - even if one were to accept that those who argue that there exists a problem with Islam do not apply the same yardstick to all Muslims (I'm not even going into the legal fictions involved here because it would keep me awake for the next year), this lumping of Islam with genuine ideologies of terror(such as Fascism-an abhorrent analogy if I ever saw one) can be abused by others without such pure motives as a mask for Islamophobia (even perhaps racism). By giving currency to a spurious claim (i.e that all forms of Islam are problematic), we run the risk of validating several other evils in the name of confronting the aforesaid (false) problem.

The long and short of it was that in order to prove that most Muslims are potential extremists, or that all forms of Islam facilitate extremism, one would have to show that there was something fundamental to Islam, or something common to most Muslims. This was not done on the listserv, can it ever be done?

Prithvi.

PS. Robert Pape, Professor of Politics at Chicago University, argues here that the Al Qaeda's acts of extremism are "less a product of Islamic fundamentalism than of a simple strategic goal: to compel the United States and its Western allies to withdraw combat forces from the Arabian Peninsula and other Muslim countries."

PPS. This pretty much blew away the blissful apolitical euphoria I've been feeling for the past couple of weeks. All good things must end, I suppose...

Should we restrict hate speech?

One of the tricky questions of human rights law is how to approach the regulation of hate speech. There is a spectrum of hate speech regulation, swinging from the extremely libertarian US Supreme Court approach to hate speech (which I'll summarise shortly) to the aggressively restrictive German approach (for obvious historical reasons). Most countries fall somewhere in the middle here, regarding free speech as a highly important and valuable right, but preventing the right from being exercised where it was likely to cause harm, or infringe on other rights of groups or individuals (hence, the denial of the Holocaust has been restricted in different countries on grounds of fomenting hatred for Jews, infringing religious freedom and denying dignity to Jewish people).
Before moving onto hate speech in the Indian context, a brief mention of the American practice. The First Amendment to the US constitution codifies what appears to be an absolute right to free speech - "Congress shall make no law... abridging the freedom of speech". This right has generally been interpreted so as to exclude certain devalued forms of expression from the definition of "speech" under the US constitution (obscenity, "fighting words" which incite people to violence and libel are good examples) but to protect all which falls under the classification of speech. Even in the case of incitement to hatred, however, the courts have struck down legislation which has restricted hate speech on the grounds of it being hate speech. So, for example, the court has allowed members of the American Nazi Party to march through neighbourhoods with a high concentration of Jewish persons (because the injunction was granted against them solely because they were Nazis planning to march in a neighbourhood of Holocaust survivors- Smith v Collin, 439 U.S. 916 (1978) and Collin v Smith, 578 F.2d 1197 (1978). In order to be constitutionally valid restriction on speech, therefore, a restriction on hate speech in the US can probably never discriminate on the basis of the viewpoint of the State in relation to the content of the speech. The US Constitution is unique, however, in not using any form of balancing justifications for analysing freedom of speech restrictions (the Indian constitution, does provide for "reasonable" restrictions on freedom of speech). Some authors are of the opinion that this is done because it is presumed that an absolute guarantee of the freedom of speech ensures equality as it ensures governmental neutrality in the regulation of speech.
The Indian constitution does not contain an absolute restriction on the freedom of speech. Like most other common law former colonies, Art. 19 (2) of the constitution permits for "reasonable restrictions on [the freedom of speech and expression] ... in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence". In addition to the constitutional provisions, the IPC also allows for restrictions on speech and expression where similar interests are affected (Ss. 153-A/B, 295, 295 -A, 296, 297, 298, 505 are some examples). Clearly, therefore, the Indian constitution (and statutory law) allow for far wider restrictions on the freedom of speech and expression than the US Constitution does. Particularly, unlike in the US, the requirements for valid hate speech regulation are not very stringent, in the sense that the discriminatory treatment of ideas by Indian law is tolerated under the Indian constitution.
I will argue however, that the courts in India (and the statutes as they exist) ought to import the American practice, rather than continue to regulate hate speech in the current manner. The practice of hate speech regulation in India has been highly arbitrary. Depending on the political groups (or the dominant ideology) in power at a given time in the country, regulation of Hindu extremist speech (see the facts of Dr. Ramesh Yeshwant Prabhoo v Shri Prabhakar Kashinath Kunte and Others, AIR 1996 SC 1113 which deals with the legislative and executive action taken against Bal Thackeray and Manohar Joshi), of Muslim extremist organisations (see for e.g. the SIMI ban) and so on indicates clearly that the state restricts speech in a selective and non-uniform manner. Arbitrariness, in this context, leads to inequality because these groups (Hindu, Muslim, Sikh etc) have their speech rights restricted on the basis of their religion rather than merely because of the content of their speech; and this substantially undermines the equal treatment guarantee available to people across the country.
Additionally, I would argue that deregulation of hate speech will enhance equality among religions and communities in India. A pluralistic society can only grow when there is free and frank discourse in the public sphere, and restrictions on one group's right to access this sphere creates inequalities. This not only flows from the previous point that this gives the State the potential to abuse its powers in an arbitrary manner, but also because exercising a free speech right is empowering for minorities. Let me illustrate - if a religious extremist organisation publishes statements hatefully directed at another religion, we have 2 situations which may arise -
a. The State bans the publication and/or the group
b. The other members of the community react to the publication and/or the group (both positively and negatively)
In situation b. the community assumes agency, and forges a sense of community identity within (or in relation to) the national (or larger group) identity, which, if nurtured, could lead to the beginnings of a process of integration (because it is a process of empowerment through discussion). In situation a. before any of this arises, the State acts to deprive the community of agency and contextual identity. This could, if exploited improperly, lead to resentment and subsequent conflict.
This would work just as well for majority as well as minority groups, there will be equal and non-regulated (i.e. non arbitrarily regulated) discussions among all groups in a pluralistic society, which will define their relations with each other, and also with the nation-State. Where the State steps in to regulate hate speech, it breaches the equality which ought to exist in the public sphere, and this leads to one community being privileged over the other.
What do you think?

Friday, August 12, 2005

And Now for Something Completely Different...

Till I get over my "I'm in the World's Greatest City" high, and begin to feel cranky and upset with the world again, I'm not going to be able to post on anything critical. Here are some photos instead. Larger versions are available here - unlike this blog, the photos will be regularly updated.

Feel free to tell me what you think of them,

Prithvi.



The Woolworth Building



Three Generations of Broadway



Looking Uptown from Astor Place



Empire State Building from Times Square



Ugly Brooklyn!



City Hall Park



Life in Manhattan



Brooklyn and Manhattan Bridges from Staten Island Ferry Station



Rickshaws (!) on 49th Street between 8th and 9th Avenues


Empire State Building from 5th Avenue

On Central Plaza and Broadway

Thursday, August 11, 2005


On Central Plaza and Broadway

Sunday, August 07, 2005

Are Indians insensitive?

Marriages Made in Hell

Everyone in Delhi is talking about Vivaha 2005, an annual marriage exhibition. This year's exhibition seems to have wowed more people than last year's edition, mainly because of the higher prices and more outrageous items on display (including a Ganesh worth Rs. 1,60,000, and edible body paint for couples for Rs. 2,400), and the prospect of higher returns for the exhibitors and organisers ($ 16 million this year as opposed to $ 12 million in the last one). Here's what upsets me most about this event and the media coverage of it -

1. None of the articles covering Vivaha 2005 which I have come across as of 07/08/05 comment on the propriety of holding such an event in light of the losses in Mumbai. Perhaps the socialite segments don't have much to do with the real-life segments of our media?
2. The organisers are moving this event to Mumbai after the Delhi show, and yet there's still no mention of the poor taste displayed by hosting such an event in that city right now.
3. There is no indication in these reports about whether any part of the proceeds from the event (or from the exhibitors' revenues) will go towards relief or charity.

This inspite of the Maharashtra CM's appeal for more relief resources.

Please let me know if any of this changes in the next few days.

Prithvi.

Blog Archive