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.