commentary
Transcending Reservations:
A Paradigm Shift in the Debate
on Equality
Tarunabh Khaitan
Some of the contemporary
debates on social inequality
transcend reservations so as
not to be entrapped in the caste
paradigm. This article maps
the creeping changes in official
discourse brought about by
the infusion of fresh ideas. If
implemented, the new proposals
have the potential of bringing
about significant changes in the
lives of many, thereby achieving
a more meaningful equality for a
wider population.
Tarunabh Khaitan (tarunabh@gmail.com)
teaches law at St Hilda’s College, Oxford, UK.
8 september 20, 2008  EPW   Economic & Political Weekly
C
aste-based reservations in public
employment and education have
been India’s primary vehicle for
fulfilling its constitutional promise of an
egalitarian society. For 60 years independ-
ent India has seen this policy increasingly
entrenched and the most important de-
bates on equality have been debates on eli-
gibility of various caste (and sometimes,
religious and economic) groups to access
the benefits of reservations. There have
been voices of dissent, voices proposing
alternatives, demanding reviews and im-
pact assessments of the reservation policy,
often through the pages of this journal.
1  Introduction
Some have asserted that decades of reser-
vations have done little to remove the evil
of caste discrimination in any significant
manner [Thorat 2002]. Others have ar-
gued that reservations reinforce caste and
ethnicity rather than transcend it. Sanjib
Baruah (2003), for example, says that the
reservations policy in the north-east has
concretised ethnic identities and classified
the descendants of immigrants as perpet-
ual outsiders. This has been the main
anxiety that has prevented the extension
of the reservations model to religious
groups. The context of our history of
Partition based on religion has intro-
duced particular sensitivity for the dan-
gers of concretising religious identities
[Ali 2006]. The u­gliness of competition
for reservations benefits that identity
politics sponsors was seen in the recent
violent conflicts over reservations for
gujjars. Rajasthan makes one sceptical of
the reservations policy.
These are but a few issues in a crucial
debate that touches upon issues of equality,
justice and national integration. Recent
years have seen bold proposals that
transcend reservations – some hostile to
the concept, some seeing it as necessary
but not sufficient, while yet others which
r­equire certain modifications. Deshpande
and Yadav (2006), for example, have pro-
posed a point-based affirmative action
programme that takes into account both
group and individual disadvantages.
T­horat (2006) recommends a slew of mea­
sures, including an anti-discrimination law
and reservations, to achieve social justice.
Till recently, these dissenting voices
have largely been academic or activist. But
the last few years have witnessed a creep-
ing change in the government discourse
on equality, a sort of officialisation of
these voices. Recognising this change is
critical to everyone who has been dissatis-
fied with the unidimensional equality
model embodied in the reservations policy.
These new proposals are not necessarily
hostile to reservations and can easily
c­­oexist. But they claim to have the poten-
tial of achieving more meaningful equali-
ty for a wider population on (hopefully)
more acceptable terms to the non-
beneficiaries. The main purpose of this
article is to map this change in the official
discourse and outline these new post-
reservations proposals.
It all started with the justice Rajinder
Sachar Committee’s (2006) ‘Report on
S­ocial, Economic and Educational Status
of the Muslim Community of India’. Real-
ising that the backwardness of Indian
Muslims is a result of a larger institutional
and societal context, it made two specific
recommendations designed to benefit
all vulnerable groups, not just Muslims:
(1) ...the Committee recommends that an
Equal Opportunity Commission (EOC)
should be constituted by the government
to look into the grievances of the deprived
groups, (2) enhancement of diversity in
different spaces should be seen as a larger
policy objective... The idea of providing cer-
tain incentives to a “diversity index” should
be explored.
This out-of-the-box thinking that went
beyond reservations in public employment
and education were necessary because of
the constitutional impermissibility of
reser­vations for religious groups. Two
separate expert groups were set up as a
follow-up measure to look into these two

suggestions in further detail. The first
e­xpert group, chaired by Madhava Menon
(2008), was asked to “examine and deter-
mine the structure of an Equal Opportu-
nity Commission”. It submitted its report
in February this year. The second expert
group, chaired by Amitabh Kundu (2008)
to “propose ‘diversity index’ and to work
out the modalities for implementation”
submitted its report in June 2008. The
Kundu report recognised that the Sachar
report’s impact would be wider than its
principal objective:
Although the task of the Sachar Committee
was to evaluate and enumerate the condi-
tions of a specific minority group, the idea of
a diversity index is floated to operationalise
a broader notion of diversity, countering the
tendencies of discrimination and depriva-
tion in production, distribution and social
sectors in India (vii).
A related development has a different
origin. Because of the shrinking of the
state since liberalisation started in the
early 1990s, even the original beneficiar-
ies of the reservations policy – the schedu­
led castes (SCs) and scheduled tribes (STs)
– knew they were losing out. Intervention
in the private sector became necessary
and the current United Progressive Alli-
ance (UPA) government promised as much
after taking office:
The UPA government is very sensitive to the
issue of affirmative action, including reser-
vations, in the private sector. UPA’s Common
Minimum Programme (2004).
But since reservations were less palata-
ble to the private sector, other forms of
a­ffirmative action needed exploring. The
task is being performed by the Coordina-
tion Committee on Affirmative Action,
chaired by principal secretary to the
prime minister’s office T K A Nair.
Although the beneficiaries are still re-
stricted to SCs and STs, the government
has (at least so far) relied upon negotia-
tions rather than legal sanction to encour-
age affirmative action measures that are
not reservations-centric.
Put together, these developments point
towards a new multifaceted understand-
ing of equality. If implemented effectively,
they might make more meaningful chang-
es in many more lives than what has been
managed by the reservations policy on
its own. The following sections will look
at different aspects of this broadening
Economic & Political Weekly  EPW   september 20, 2008
under­standing of equality from a holistic
point of view.
2  Prohibiting Discrimination1
The main focus of the EOC proposed by
the Menon report will be to weed out dis-
crimination against members from “de-
prived groups” identified by an objective
deprivation index, and defined by “sex,
caste, language, religion, disability, de-
scent, place of birth, residence, race or any
other...” ground. Thus, the eligibility re-
quirement for protection by the proposed
law is deprivation based on an open-ended
list of irrelevant personal characteristics.
The final residual clause “or any other” is
a place-holder for other analogous
autonomy-infringing grounds that may be
filled in later. A­lthough this foresight is
commendable, it will be a good idea to
expand the list to include currently known
analogous grounds like “sexual orienta-
tion, marital status, food preference,
age, dress preference, gender identity,
pregnancy”, etc, while still retaining the
residual clause.
The proposed bill in the Menon report
also recognises that deprivation is
contingent. What is today a deprived
group may not be so tomorrow. Protec-
tion will be dependent not on the much
maligned “vote-bank politics” but on a
principled demonstration of deprivation
through the deprivation index. Further,
the bill recognises our multiple identities
by moving away from a focus on single
interest groups and instead arriving at
the generic idea of “­deprived groups”.
One may be rich, male and able, but a
Muslim religious identity may result in
being discriminated against nonetheless.
Again, a dalit lesbian woman c­arries
several depriving identities, the t­otality
of which cannot be captured by a single-
issue oriented law.
This design is not only morally better
but also has a more universal appeal –
with the rich and complex diversity of
human identities, most of us are more
likely to see ourselves as potential victims
of ille­gitimate discrimination rather than
as per­petual non-beneficiaries. This raises
the possibility of empathy with victims
of discrimination rather than empathy-
failure caused by divisions between
us-and-them.
commentary
In its potential impact, the Menon report
is the least ambitious of the three
s­uggestions being discussed here. It only
goes so far as imposing a negative obliga-
tion on public as well as private bodies: re-
frain from discriminating unfairly. There
is no positive requirement to do good. This
is what makes it possible to have a long list
of beneficiaries – unfair discrimination
against anyone is wrong. But it is particu-
larly wrong against a member of a deprived
group, because by definition they have few
opportunities available to begin with.
The Menon committee is, correctly, “of
the firm opinion that the jurisdiction of
this Commission should not be limited to
the public sector”. Yet, citing incremental
sectoral progress, it suggests that only em-
ployment and education should be the ini-
tial focus of the EOC. The deferment of its
application to the housing sector to a later
date is unfortunate, given rampant dis-
crimination on the grounds of religion,
caste, food preference and marital status
existing in that sector.2
To what extent anti-discrimination
legis­lations can help eradicate structural
injustice in the short-term is debatable.
Driven as they usually are by complaints
from victims, even a very effective e­nforce­
ment mechanism can only be e­x pected
to deal with only a limited p­ercentage of
existing discrimination in society and
that too after the discrimi­nation has
taken place. This has been a­ddressed to
a limited extent by the M­enon report
which seeks to grant a broad policymak-
ing role to the proposed EOC (sadly, it
seems, at some e­xpense to the equally-
important adjudicatory function in cases
of individual d­iscrimination).
Having enacted the Civil Rights Act
prohibiting discrimination in the private
sector in 1964, the United States (US) pro-
vides good evidence over a long period of
time. Of course, the Menon report pro­
poses a group-driven rather than an
i­ndividual-driven complaints model and
adjudication is only a minor role of the
proposed commission – so comparisons
can be tricky. For what they are worth,
some statistics released by the US Equal
Opportunities Commission reflect the
change in the composition of the work-
force over the years, which at least in part,
is owed to the law.3
9
commentary
Although discrimination certainly con-
tinues to exist in the US, the figures are
remarkable. Before enacting the Menon
report into law, a study of the impact of
various models of anti-discrimination
laws in other jurisdictions as well as pilot
studies in India is necessary.
Table 1: Share in the Composition of Private Workforce
(all figures in percentages)
White Men Women Minorities
1966 60.9 31.2 11.2
2002 36.7 48.2 29.7
Table 2: Share in Official and Managerial Positions in
Private Workforce (all figures in percentages)
Women African-Americans Latinos
1966 9.3 0.9 0.6
2002 36.4 6.9 5.3
Table 3: Share in Professional Positions in Private
Workforce (all figures in percentages)
Women African-Americans Latinos
1966 20.5 1.7 0.8
2002 51.7 7.1 4.1
While the Kundu report discussed in
the next section is more directly concerned
with the representation of various groups
in the workforce, anti-discrimination
l­egislations definitely augment other
measures to encourage diversity. But the
latter have their main value in promoting
a national culture that is intolerant of
u­nfair discrimination. This battle of minds
is p­erhaps more, if not as, important as the
battle of numbers.
3  Promoting Diversity
In a non-discriminatory world, all public
spaces will be diverse (public “spaces” in-
clude privately owned business, housing
societies and schools since the functions
they perform are of a quasi-public nature).
If hiring, admitting, leasing and selling
policies are non-discriminatory, the social
mix of a workforce, students or housing so-
ciety will roughly reflect that of the society
itself. Since this is not the case, positive action
is needed. The Kundu report argues thus:
The case for increasing social diversity in
public spaces can be built on the notion of
a fair demographic representation for all
groups of population. Groups that are sub-
jected to discrimination in society tend to
get under-represented (as compared to their
proportion in the population) in several pub-
lic spheres. This leads to inequity and aliena-
tion resulting in resentment and frustration
among the excluded population. These could
10
assume violent and secessionist expressions, as sex in a given public space. It calculates
leading to disruption in social and political the “diversity gap” in a public space by
life, with serious negative consequences for
comparing the actual intake of members
growth, development and social harmony...
There are numerous cases when the indi- of a particular religious, caste or gender
vidual characteristics have been rendered group in a given institution to the “popu-
e­ither secondary or completely redundant in lation who are eligible to enter the institu-
determining her/his access to these institu- tion” and not to the general population.
tions as group identities overwhelm or dic-
While admitting that a low number of eli-
tate the decision-making process.
gible members itself may be a result of dis-
Diversity, although linked to discrimi- crimination, the report justifies this as a
nation, is an independent concept. As the pragmatic compromise because “an indi-
Kundu report emphasises, its main con- vidual institution has limited role to play
cern is the “Concentration or clustering of in changing that”.
populations with similar socio-economic, The diversity gap is designed to ensure
religious and ethnic characteristics in geo- that only social exclusion is corrected – so,
graphical, social, political and institution- only if a community is under-represented
al spaces...” A concentration of minority in proportion to its eligible population will
groups in a public space is as regrettable the institution be rewarded for enhancing
as that of a majority group. As such, diver- its participation. If a community (even if
sity transcends the majority-minority divide. a minority) is already over-represented
The benefits of diversity go beyond in a given institution, it cannot claim
repre­sentational justice. As the US Supreme any benefits.
Court noted in Grutter vs Bollinger, a Once diversity gap has been identified
d­iverse “admissions policy promotes cross- in an institution, the report recommends
racial understanding, helps to break down that those institutions which take meas-
racial stereotypes, and enables students to ures to bridge the gap should be rewarded
better understand persons of different by the state with incentives, concessions,
races. These benefits are important and access to public land and resources, ten-
laudable, because classroom discussion is ders, export quotas, preferences, adver-
livelier, more spirited, and simply more tisements, etc; while those institutions
enlightening and interesting when the that ignore the diversity gap are not pun-
students have the greatest possible variety ished but do not get the benefits either.
of backgrounds.”4 Similar benefits may be The report identifies three sectors to push
seen in a diverse workforce. for diversity – education, employment and
The Kundu report does not restrict the housing. It recommends:
sensitivity of diversity to religion alone. (1) Incentives in the form of larger grants
The report recommends a diversity-index to those educational institutions that have
which is sensitive to caste, religion as well higher diversity and are able to sustain it
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september 20, 2008  EPW   Economic & Political Weekly

over time. These incentives can apply to
both colleges and universities, both in
public and private sector.
(2) Incentives to provide the public and
private sector enterprises and institutions
to encourage diversity in their workforce.
While such initiatives should be part of
the corporate social responsibility, some
affir­mative action may help initiate
this process.
(3) Incentives to builders for housing com-
plexes that have more “diverse” resident
populations to promote “composite living
spaces” for “socio-religious communities”.
Thus, the implementation scheme is
based only on carrots, not sticks. The con-
cept has been employed in various other
countries. In a recent book entitled Buying
Social Justice Christopher McCrudden (2007)
draws on jurisdictions as diverse as the US,
Malaysia, the European Union, Canada and
South Africa to provide an excellent em-
pirical analysis of the way in which they
have tried to balance private freedom with
social goals, by “buying” s­ocial justice. In-
stead of relying on their “i­mperium” (pow-
er of sanction), these j­urisdictions have re-
lied on their “dominium” (power of purse)
to achieve social justice goals. The idea is
an intelligent compromise between entre-
preneurial freedom and social justice, and
is a useful one to try out in India.
The report suggests that “this approach
has greater flexibility than the system of
reservations. The diversity-based incen-
tive system, first and foremost, creates
awareness. It sets the goal towards which
the institutions would work, and while
these goals may not be achievable imme-
diately, institutions must try and achieve
them gradually, within a reasonable
p­eriod of time.” It further argues that
reser­vations might make sense in “certain
specific situations” but the diversity
a­pproach is “a more effective and, we
hope, a more a­cceptable solution” for “long
term... systemic change”.
4  Promoting Affirmative Action
The Nair Committee on affirmative action
is less clear conceptually, operating as it
does on the negotiating table between
senior bureaucrats and trade and industry
leaders, rather than having its origin in a
well-thought-out academic report. The
government appears to be appealing to
Economic & Political Weekly  EPW   september 20, 2008
corporate social responsibility of the
companies, while on the other hand keep-
ing open the possibility of Parliament im-
posing affirmative action obligations on
private companies through law if volun-
tary action does not deliver quick results
[­Aggarwal 2008b].
The corporate sector is being encour-
aged to invest in increasing the skills and
employability of SCs and STs, to provide
scholarships and jobs and promote indus-
trialisation in districts with large SC/ST
populations [Aggarwal 2008c]. The Con-
federation of Indian Industry has so far
resisted government efforts to appoint an
ombudsman to oversee the implementa-
tion of these measures [Subramaniam
2008]. However, in a meeting of the com-
mittee in June 2008, the Federation of
I­ndian Chambers of Commerce and Indus-
try informed the government of some of
the measures that the industry has been
taking to fulfil the goals identified by the
committee [Aggarwal 2008a].
It remains to be seen whether the gov-
ernmental threat of parliamentary legisla-
tion imposing affirmative action mandates
on private bodies will be carried out or if it
is only a negotiating tactic to encourage
voluntary action. If a legal framework is
contemplated, the Parliament will be well-
advised to follow the carrots-rather-than-
sticks policy of the Kundu report described
above [Khaitan 2008]. With or without
l­egal incentives, whether Indian corporate
sector inculcates a culture of taking its s­ocial
responsibility seriously remains to be seen.
In any case, it is a development anyone in-
terested in equality needs to monitor.
5  Institutional Mechanism
These are decent proposals, but many good
ideas have been scuttled by bad imple­
mentation. If each of them is implemented
independently, along with all the others
that we already have in place, we will have
a regulatory nightmare on our hands.
The Menon report recommends the set-
ting up of central and regional EOCs. The
Kundu report envisages the establishment
of a diversity commission, boards and
committees at the central, state and insti-
tutional levels respectively. Add to that
the existing array of National Commission
for SCs and STs, National Commission for
Women, the Coordination Committees
commentary
and Commissioners under the Persons
with Disabilities Act 1995, National Com-
mission for Minorities and their regional
and local counterparts. With all of them
tasked with achieving some aspect of
equality, turf wars and bureaucratic red-
tape are inevitable.
What is needed is a holistic approach
to equality, with one independent and
a­utonomous central equality commission,
assisted by similar regional and local
committees. The existing commissions
can be merged into this single body to
streamline their operation. The task will
involve the amendment of several statutes
and even the Constitution, but is essential
for proper implementation of various
dimensions of equality. A similar exercise
was necessitated in the United Kingdom
where the Equality Act of 2006 merged
the pre-existing EOC, Commission for
Racial Equality and Disability Rights Com-
mission into a single Commission for
Equality and Human Rights. Upsetting the
e­ntrenched vested interests and massive
bureaucracies will demand significant
p­olitical will – but anything short of a ra-
tional restructuring of the implementation
mechanism will defeat the noble objectives
of these proposals.
6 Conclusions
These recent conversations on equality
are promising. The Menon and Kundu re-
ports show that one can think about equal-
ity without necessarily drawing strict
boundaries between beneficiaries and
non-beneficiaries, between majorities and
minorities, between “us” and “them”.
These proposals appear to be fairer poli-
cies in comparison to reservations and
have therefore greater prospects of
a­cceptability.5
While fairness and acceptability are de-
batable, these two proposals certainly
a­ffect a greater number of people than the
reservations policy and in many more sec-
tors. Even for dalits and tribals who were
the original beneficiaries of the reserva-
tions policy, these new proposals will open
new doors towards claiming full citizen-
ship. How much is translated into reality
remains to be seen. The obvious benefit of
the reservations policy is that it is easy to
implement. Jayati Ghosh (2006) argues
in favour of reservations by citing low
11
commentary
e­nforcement costs and easily identifiable
and achievable, even if rigid, targets. None
of the proposals discussed above can
claim  that.
While dealing with the private sector,
these proposals impose far less restric-
tions on private enterprise than reserva-
tions would. Inasmuch as they prohibit
unfair discrimination and provide incen-
tives rather than penalty for pursuing
d­iversity and corporate social responsi­
bility, it is hard to label them onerous or
unfair to the private sector.
These comparisons of the new propos-
als with the reservations policy should not
lead us to think that this is an argument
for doing away with reservations. Sub-
stantive equality will require a number of
simultaneous measures to be undertaken
– whether reservations should continue to
be one of them is a decision that needs to
be arrived at independently and after tak-
ing all its costs and benefits into consider-
ation. But there is nothing intrinsic in
these policies that prevents them from be-
ing launched alongside reservations. This
new discourse is therefore not necessarily
opposed to reservations, it merely tran-
scends reservations as the sole vehicle
t­owards an equal society.
Neither should this article be seen as an
endorsement of everything there is in the
Menon and Kundu reports or of the func-
tioning of the Nair Committee. While I
e­ndorse the idea of an effective anti-­
discrimination law, diversity in public
spaces and socially responsible corporate
sector generally, the finer details in each
of these proposals need extensive public
debate before acceptance. Many of these
initiatives are experimental – we must be
willing to learn from other countries who
have already implemented similar pro-
grammes as well as from our own mis-
takes. Nothing would be worse than these
proposals becoming yet another en-
trenched government programme which
are not subject to periodic review or
i­mpact assessment.
Finally, what is essential is that the
government takes a holistic approach to
the problem of equality rather than con-
sidering these various proposals piece-
meal. A related debate on the regulatory
mechanism needed to implement these
proposals effectively is also necessary.
12
This post-reservations discourse on equal-
ity has the potential to affect many more
people, in a larger number of areas and,
arguably, in deeper ways. A liberalising
state, proliferating identities and endur-
ing discrimi­nation demand that this dis-
course is t­aken  seriously.
Notes
1 For a detailed analysis of the Equal Opportunity
Commission Bill proposed by the Menon report,
see Tarunabh Khaitan, ‘Dealing with Discrimina-
tion’, 25(10), Frontline, May 23, 2008, p 102. Avail-
able at http://www.hinduonnet.com/fline/
fl2510/stories/20080523251010200.htm
2 On discrimination on the basis of food-preference
in particular, see Tarunabh Khaitan ‘Vegetarianism,
Tolerance and Discrimination’, The Hindu,
May 26, 2008. Available at http://www.thehindu.
com/2008/05/26/stories/2008052653861000.htm
3 All figures in Tables 1, 2 and 3 (p 10) are taken
from the United States Equal Opportunity Com-
mission, ‘Indicators of Equal Employment Oppor-
tunity – Status and Trends’ 6 (2004) as cited in
Stuart Ishimaru, ‘Fulfilling the promise of Title
VII of the Civil Rights Act’ of 1964 36 University of
Memphis Law Review 25, 26.
4 Grutter vs Bollinger, 539 US 306, 330 (2003) (in-
ternal notes and quotations omitted).
5 This is not meant to be a comment on the fairness
or otherwise of the reservations policy. Although
the debate over the fairness of reservations was a
starting point of this article, I take no position in
this debate.
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