On Tuesday, the State of Rajasthan enacted two laws guaranteeing reservations to Economically Backward Classes among the forward castes, and Special Backward Classes, such as Gujjars. In defending the law, the State Home Minister argued that decades of reservation for the “backward classes” had largely succeeded in bringing them into the mainstream, but that in the process, economically weaker sections of the unreserved classes had “fallen behind”.
The laws have been swiftly decried as unconstitutional, both for their selection of beneficiary groups, and for taking the percentage of reservation beyond the Supreme Court-stipulated 50% threshold. Rajasthan’s move, however, can hardly be understood in isolation. It comes upon the heels of Hardik Patel’s violent agitation in Gujarat, which blew open yet again the always-unfinished debate over reservations in India.
Vice-President Hamid Ansari’s call for affirmative action for Muslims, coming on the heels of the Patel protests, created a firestorm of its own. Scholars have begun to discuss once more whether we are doing affirmative action right, or whether there are other, better ways to go about achieving social justice.
By now, reservations seem to have become the focal point from which issues of social justice are examined in India. Nonetheless, we reduce the discrimination problem to only reservations at our peril. Discrimination affects society more broadly and more deeply than simply unequal representation in institutions, and its solutions must correspondingly be broader and more creative than compromises over whom to provide reservations to, and how much to provide.
Consider history. Let us take three events, separated by almost a span of a century.
On March 19, 1927, three thousand people gathered in the town of Mahad (now in Western Maharashtra), demanding access to the local water tank, which had been historically off-limits to Untouchables. On September 24, 1990, a student died of burns suffered from self-immolation, in protest against the implementation of the Mandal Commission’s recommendations. On July 23, 2015, a Muslim woman used Youtube to inform Arvind Kejriwal, the Chief Minister of Delhi, that she had been denied entry into a flat that she had rented, because of her religion.
These three events reveal that the intertwined issues of discrimination, social and economic exclusion, and access to resources, have been at the forefront of the Indian polity. From the time of Jyotirao Phule and BR Ambedkar, they have engaged the attention of some of the country’s finest thinkers, activists and politicians. The complexity of these questions ensures that any possible resolution cannot simply be about reservations and quotas. And the recent publication of two books has provided us with a rich set of resources to continue thinking about these issues, whose salience promises to only increase with time.
Questioning caste
Anupama Rao’s Caste Question: Dalits and the Politics of Modern India (University of California Press, 2009), is a work of historical scholarship. In the first part of her book, Rao examines pre-Independence (West) India through the lens of its anti-caste civil rights movements. In Rao’s historical analysis, these movements were framed as responses to the specific forms of social and economic discrimination that were most prevalent at the time. For instance, in 1856, a Christian Mahar convert was denied admission into a government school. His petition to the Bombay government was rejected, on the grounds of respect for the religious sentiments of the majority. Civic inclusion, therefore, was an early political battleground. After a spate of petitions, the Bombay Education Department hit upon a “novel resolution”:
This, Rao points out, only intensified the experience of stigma faced by the untouchable students.
Through this early example, Rao demonstrates that discrimination (and, consequently, the responses to them) took two concrete forms: exclusion (i.e., denial of access to public facilities), and segregation (with its associated stigmatisation of the segregated groups).
Exclusion and segregation were at the heart of Dalit civil rights movements of the early 20th century, culminating in the famous “Mahad water satyagraha” of 1927, headed by Ambedkar. The vocabulary employed by the leaders of the Satyagraha was one of civic rights and non-discriminatory access to public facilities. While the water tank was one locus of the struggle, Rao notes that it extended to streets, schools, and temples as well. As Ambedkar stated, “public facilities should be open to untouchables like other Hindus.” While the movement met with little legal success in the colonial courts, and little political success within the dominant Congress party, access to public facilities would ultimately be enshrined as a fundamental right in the Constitution.
As Rao explains, however, access was only one side of the coin. The other form of discriminatory violence, stemming from the principle of segregation, was that of the “boycott”: the boycott, according to Ambedkar,
The boycott – and resistance to it – was complementary to the struggles around access, because it operated in the private domain of contract, social interactions, and economic transactions. And it was the boycott that Ambedkar had in mind when, in the Constituent Assembly debates, he vehemently insisted that Article 15(2), which guaranteed non-discriminatory access to shops, was meant to include any commercial service, including that of doctors and barbers.
Discrimination law
While Rao’s book provides us with the historical tool to understand the struggles around discrimination in India, Tarunabh Khaitan’s A Theory of Discrimination Law (Oxford University Press) is a work of legal scholarship, that can help translate historical understanding into a concrete legal framework.
A Theory of Discrimination Law is a detailed comparative study of the approach towards discrimination law taken by five countries: England, the United States, Canada, South Africa, and India. Central to Khaitan’s book is the thesis that even though discrimination law is framed with reference to “groups” (Article 15(1) of the Indian Constitution, for example, prohibits discrimination on grounds of sex, race, caste, religion etc.), its primary concern is with the individual. Historically, individuals have been subjected to various limitations and disabilities, and their freedom has been constrained, because of their identification with certain groups. Therefore, any attempt to redress this must take groups as its locus. However, Khaitan argues that we must not lose sight of the fact that our ultimate objective is not to bring groups on par with one another, but to ensure that the liberty and dignity of individuals is not compromised because of the groups they associate, or are associated with.
How do we choose the “groups” that are the subjects of discrimination law? Khaitan takes us back to our primary intuitions about human choice and responsibility. Nobody, he argues, should suffer harm for something that is beyond their control (i.e., something they are not responsible for), or for something that represents a valuable personal choice. On this basis, he posits two criteria for identifying groups: “immutability” (e.g., one’s place of birth) and “personal choice” (e.g., one’s religion). While this makes sense, does it not prove too much? After all, eye colour is an immutable characteristic, and dress sense is a personal choice. It is here that history must enter: Khaitan argues that we must not only look at immutability and personal choice, but also whether group affiliation is likely to contribute to “abiding, pervasive, and substantial disadvantage.” This enquiry, of course, cannot avoid questions of history: what, in the past, and in the continuing present, have been the sites of discrimination, exclusion and violence? Khaitan tells us what questions we must ask, while Rao points us to the tools we need to answer them.
The questions of what discrimination law ought to do, and how it ought to do it, are important ones. The question of what its limits are is equally important. We would not, after all, be justified in imposing the requirements of non-discrimination upon a person’s choice of friends, or intimate partners. Here, Khaitan’s philosophical argument tracks Rao’s historical enquiry. There are two situations, he argues, where the law should certainly apply: first, where there is an element of “public-ness” to the activity in question (i.e., wherever the State is involved, or where a private body performs a public function); and secondly, where exclusion or discrimination can have a direct impact upon an individual’s ability to access the good or resources that are essential for a life of freedom and dignity. Thus, relationships between employers and employees, landlords and tenants, and shopkeepers and customers lie closer to the “private” end of the spectrum than the “public”; but the impact of collective exclusion from employment, housing and shops is akin to exclusion from the economic and social life of the community. And this, as Ambedkar pointed out, was exactly the purpose of the “boycott”.
Over the last few years, there have been repeated calls for a comprehensive anti-discrimination law in India. With the recent amendments to the Prevention of Atrocities Act, the debate is bound to escalate. Going forward, Rao and Khaitan’s books deserve to be read and engaged with, in order to develop a nuanced understanding of the problems and their potential solutions.
Anupama Rao, Caste Question, University of California Press, 2009. Tarunabh Khaitan, A Theory of Discrimination Law, Oxford University Press ,2015.
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The laws have been swiftly decried as unconstitutional, both for their selection of beneficiary groups, and for taking the percentage of reservation beyond the Supreme Court-stipulated 50% threshold. Rajasthan’s move, however, can hardly be understood in isolation. It comes upon the heels of Hardik Patel’s violent agitation in Gujarat, which blew open yet again the always-unfinished debate over reservations in India.
Vice-President Hamid Ansari’s call for affirmative action for Muslims, coming on the heels of the Patel protests, created a firestorm of its own. Scholars have begun to discuss once more whether we are doing affirmative action right, or whether there are other, better ways to go about achieving social justice.
By now, reservations seem to have become the focal point from which issues of social justice are examined in India. Nonetheless, we reduce the discrimination problem to only reservations at our peril. Discrimination affects society more broadly and more deeply than simply unequal representation in institutions, and its solutions must correspondingly be broader and more creative than compromises over whom to provide reservations to, and how much to provide.
Consider history. Let us take three events, separated by almost a span of a century.
On March 19, 1927, three thousand people gathered in the town of Mahad (now in Western Maharashtra), demanding access to the local water tank, which had been historically off-limits to Untouchables. On September 24, 1990, a student died of burns suffered from self-immolation, in protest against the implementation of the Mandal Commission’s recommendations. On July 23, 2015, a Muslim woman used Youtube to inform Arvind Kejriwal, the Chief Minister of Delhi, that she had been denied entry into a flat that she had rented, because of her religion.
These three events reveal that the intertwined issues of discrimination, social and economic exclusion, and access to resources, have been at the forefront of the Indian polity. From the time of Jyotirao Phule and BR Ambedkar, they have engaged the attention of some of the country’s finest thinkers, activists and politicians. The complexity of these questions ensures that any possible resolution cannot simply be about reservations and quotas. And the recent publication of two books has provided us with a rich set of resources to continue thinking about these issues, whose salience promises to only increase with time.
Questioning caste
Anupama Rao’s Caste Question: Dalits and the Politics of Modern India (University of California Press, 2009), is a work of historical scholarship. In the first part of her book, Rao examines pre-Independence (West) India through the lens of its anti-caste civil rights movements. In Rao’s historical analysis, these movements were framed as responses to the specific forms of social and economic discrimination that were most prevalent at the time. For instance, in 1856, a Christian Mahar convert was denied admission into a government school. His petition to the Bombay government was rejected, on the grounds of respect for the religious sentiments of the majority. Civic inclusion, therefore, was an early political battleground. After a spate of petitions, the Bombay Education Department hit upon a “novel resolution”:
“Dalit students were placed on the school’s verandah at a distance from both caste Hindu classmates and the classroom, to fulfill the colonial mission of educational access.”
This, Rao points out, only intensified the experience of stigma faced by the untouchable students.
Through this early example, Rao demonstrates that discrimination (and, consequently, the responses to them) took two concrete forms: exclusion (i.e., denial of access to public facilities), and segregation (with its associated stigmatisation of the segregated groups).
Exclusion and segregation were at the heart of Dalit civil rights movements of the early 20th century, culminating in the famous “Mahad water satyagraha” of 1927, headed by Ambedkar. The vocabulary employed by the leaders of the Satyagraha was one of civic rights and non-discriminatory access to public facilities. While the water tank was one locus of the struggle, Rao notes that it extended to streets, schools, and temples as well. As Ambedkar stated, “public facilities should be open to untouchables like other Hindus.” While the movement met with little legal success in the colonial courts, and little political success within the dominant Congress party, access to public facilities would ultimately be enshrined as a fundamental right in the Constitution.
As Rao explains, however, access was only one side of the coin. The other form of discriminatory violence, stemming from the principle of segregation, was that of the “boycott”: the boycott, according to Ambedkar,
“is not a case of social separation, a mere stoppage of social intercourse for a temporary period. It is a case of territorial segregation and of a cordon sanitaire putting the impure people inside a barbed wire into a sort of cage.”
The boycott – and resistance to it – was complementary to the struggles around access, because it operated in the private domain of contract, social interactions, and economic transactions. And it was the boycott that Ambedkar had in mind when, in the Constituent Assembly debates, he vehemently insisted that Article 15(2), which guaranteed non-discriminatory access to shops, was meant to include any commercial service, including that of doctors and barbers.
Discrimination law
While Rao’s book provides us with the historical tool to understand the struggles around discrimination in India, Tarunabh Khaitan’s A Theory of Discrimination Law (Oxford University Press) is a work of legal scholarship, that can help translate historical understanding into a concrete legal framework.
A Theory of Discrimination Law is a detailed comparative study of the approach towards discrimination law taken by five countries: England, the United States, Canada, South Africa, and India. Central to Khaitan’s book is the thesis that even though discrimination law is framed with reference to “groups” (Article 15(1) of the Indian Constitution, for example, prohibits discrimination on grounds of sex, race, caste, religion etc.), its primary concern is with the individual. Historically, individuals have been subjected to various limitations and disabilities, and their freedom has been constrained, because of their identification with certain groups. Therefore, any attempt to redress this must take groups as its locus. However, Khaitan argues that we must not lose sight of the fact that our ultimate objective is not to bring groups on par with one another, but to ensure that the liberty and dignity of individuals is not compromised because of the groups they associate, or are associated with.
How do we choose the “groups” that are the subjects of discrimination law? Khaitan takes us back to our primary intuitions about human choice and responsibility. Nobody, he argues, should suffer harm for something that is beyond their control (i.e., something they are not responsible for), or for something that represents a valuable personal choice. On this basis, he posits two criteria for identifying groups: “immutability” (e.g., one’s place of birth) and “personal choice” (e.g., one’s religion). While this makes sense, does it not prove too much? After all, eye colour is an immutable characteristic, and dress sense is a personal choice. It is here that history must enter: Khaitan argues that we must not only look at immutability and personal choice, but also whether group affiliation is likely to contribute to “abiding, pervasive, and substantial disadvantage.” This enquiry, of course, cannot avoid questions of history: what, in the past, and in the continuing present, have been the sites of discrimination, exclusion and violence? Khaitan tells us what questions we must ask, while Rao points us to the tools we need to answer them.
The questions of what discrimination law ought to do, and how it ought to do it, are important ones. The question of what its limits are is equally important. We would not, after all, be justified in imposing the requirements of non-discrimination upon a person’s choice of friends, or intimate partners. Here, Khaitan’s philosophical argument tracks Rao’s historical enquiry. There are two situations, he argues, where the law should certainly apply: first, where there is an element of “public-ness” to the activity in question (i.e., wherever the State is involved, or where a private body performs a public function); and secondly, where exclusion or discrimination can have a direct impact upon an individual’s ability to access the good or resources that are essential for a life of freedom and dignity. Thus, relationships between employers and employees, landlords and tenants, and shopkeepers and customers lie closer to the “private” end of the spectrum than the “public”; but the impact of collective exclusion from employment, housing and shops is akin to exclusion from the economic and social life of the community. And this, as Ambedkar pointed out, was exactly the purpose of the “boycott”.
Over the last few years, there have been repeated calls for a comprehensive anti-discrimination law in India. With the recent amendments to the Prevention of Atrocities Act, the debate is bound to escalate. Going forward, Rao and Khaitan’s books deserve to be read and engaged with, in order to develop a nuanced understanding of the problems and their potential solutions.
Anupama Rao, Caste Question, University of California Press, 2009. Tarunabh Khaitan, A Theory of Discrimination Law, Oxford University Press ,2015.
