In defence of discrimination

S Subramanian

IN an earlier piece I had reviewed two common arguments against caste-based reservation, and found them wanting. In this article, I consider two more commonly misconceived arguments against the notion of affirmative action. The first of these is founded in an idea of equality which African American economist Glenn Loury has called a feature of many constitutions that uphold a sort of ‘liberal neutrality’. This idea finds expression in the view that people may not be discriminated against on grounds such as their gender, race, caste, or place of birth. Inasmuch as affirmative action requires us to discriminate in favour of people on grounds of, say, their caste, it also, by implication, requires us to discriminate against other people on these same grounds of their caste. Does this not amount to a violation of Articles 14 and 15 of the Constitution of India? Article 14 says: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”; and Article 15 says: “…The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

What is involved in Articles 14 and 15 is a (deep) notion of formal, not substantive, equality. Another way of putting this is to suggest that the social virtue invoked in these Articles is not so much one of ‘equality’ as one of what economists call ‘anonymity’. Anonymity requires, as its nomenclature suggests, that the notion of, say, a fair distribution of income should not depend on peoples’ identities. If the people involved are equal in terms of their non-income characteristics, then they should be treated equally in terms of the distribution of incomes, too. Such a notion of equality is immediately and compellingly persuasive in the context of any homogeneous population, that is to say, a population in which people cannot be differentiated in terms of their non-income characteristics. 

But homogeneous populations are not the sorts of population that obtain in the world as we know it. Typically, it is the heterogeneous population which is the rule, and the homogeneous population which is the exception. It is this pervasive presence of heterogeneity in the real world which led to economist-philosophers such as Amartya Sen arguing against the systematic normative appeal of an equal distribution of income. Employing the example of a physical handicap as an instance of heterogeneity, Sen argued that an ethically optimal distribution of income would typically require more income to be allocated to the physically handicapped person than to the one not so handicapped. 

As legal philosopher Ronald Dworkin put it, there are two types of the right to equality which humans may be expected to be entitled to. He called these, respectively, the ‘right to equal treatment’, and the ‘right to treatment as an equal.’ The right to equal treatment (which Dworkin described as the right to an equal share of a society’s burdens and benefits) is a fair right to advocate for any homogeneous population. But for any heterogeneous population, marked, for instance, by the inequities of the caste system, it is the right to treatment as an equal (which Dworkin described as a person’s right to be treated with the same respect and consideration as any other person) that must claim priority. It is this right that is at the heart of principles of reservation, or compensatory discrimination, or affirmative action.         

Yet another major argument that is frequently invoked in order to resist the phenomenon of reservation is the one located in the alleged error of seeking to correct ‘historical injustice’ though ‘current practices’. More specifically, the argument consists in calling into question the rightness of providing compensatory discrimination in favour of sections of the ‘historically disadvantaged’ sections of society, on the grounds that what happened in history is best left to history and not imported into the present. Why, that is, seek rectification ‘now’ for what happened ‘then’? In this view, what is being served is not so much the cause of justice as the cause of retribution, if not outright revenge. Surprisingly, this line of argumentation has been resorted to by many intellectuals of a self-confessedly ‘liberal’ orientation. This is no more clearly in evidence than in debates relating to ‘Mandir’ and ‘Mandal’, in which a well-known ‘liberal’ argument has been the following. Those who are against ‘Mandir’ on the grounds of the inappropriateness of exacting retribution for wrongs committed in the distant past ought, from considerations of consistency, to oppose also caste-based reservations as amounting to exacting retribution for wrongs committed in the distant past. How does one address this line of reasoning? There are at least two issues to contend with here.

First, it is useful to draw a distinction between a history that has a bearing on the present and one that does not. It is not being suggested for a moment that it is always possible to draw such a pristine and water-tight distinction. But often enough, it is differences in degree rather than differences altogether and entirely in kind that make a difference at the margin. After all, we are dealing with the ambiguities of history, not the exact certainties of mathematics. And if this is granted, it is not all that difficult to be able to see a difference between those aspects of history that do, and those that do not, cast an appreciable shadow on the present. Seen in this light, the historical wrong of a mosque built on the foundation of a demolished temple (even assuming this, for a moment, to be a historical fact) is surely not on the same footing, in terms of its impact on present generations, as the historical wrong of the practice of untouchability, in terms of the impact of that wrong on present generations. The majority religious community in India today does not bear the scars of historical religious persecution in any way comparable to the burdens visited by history on the Scheduled Castes and Tribes in terms of the discriminatory denial to them of ordinary rights of freedom and liberty.

Second, and related to the first point, is that what are called historical wrongs are also contemporary wrongs in the case of the caste, but not the religious, context we are speaking of. In the matter of caste, not only has the past contributed to a present in which identifiable sections of the population have to labour under the cumulated burden of social and educational disadvantage, but the past also continues to replicate itself in current practices ranging from lack of access to drinking water, on the one hand, to caste atrocities, on the other. 

Given the incredibly short span of memory for some events, and the unrelentingly elephantine memory for other events which some of us seem to be endowed with, let us remind ourselves that Dadri, Sunpedh and Gohana happened in October 2015, not in 1527. 

— The writer is National Fellow, Indian Council of Social Science Research