A better design for social justice

We are back to debating reservations. The argument in favour of affirmative action — for groups that suffer substantial, pervasive and abiding forms of disadvantage — is compelling. Such disadvantage is self-perpetuating. Given the mechanics of social power and its translatability into political, cultural and economic power, external intervention is essential to break the vicious cycle. Whether we should have affirmative action is an easy enough question to answer in our social context. It is the “how” that deserves more attention. Our chosen means — group-membership-based reservations — is one of the crudest, least imaginative and costliest (for the beneficiary group) forms of affirmative action. It is crude in two different respects: One, the criteria for allocation of benefits; and two, the nature of the allocated benefits. Greater sophistication on both counts is long overdue, although this column will address the criteria question alone. 

If we want to end the disadvantage faced by certain caste groups, it may seem obvious to distribute benefits directly along caste lines. However, doing so imposes significant costs on the intended beneficiaries themselves. Put simply, the argument is that caste-based affirmative action prevents us from transcending caste, its supposed objective. By increasing the social salience of group membership, it causes expressive harms to its ostensible beneficiaries. Resentment against the beneficiary group increases, and existing prejudices and stereotypes against the group are reinforced. These costs are, no doubt, entirely undeserved, but that unfortunately does not allow us to pretend they do not exist. It is a no-brainer that we should try to reduce the expressive costs of affirmative action to the disadvantaged groups while ensuring that they continue to derive meaningful benefits from it. This could be done by moving away from a group-membership-only criterion of allocation to a group-membership-plus or an indirect allocation method. The creamy layer’s exclusion from Other Backward Class (OBC) reservations, mandated by the Supreme Court, is a weak form of group-membership-plus allocation. Although caste remains the chief criterion for the distribution of benefits, certain other, mainly economic, factors are used to exclude certain categories of beneficiaries. In a significant article published in the Economic and Political Weekly in June 2006, Yogendra Yadav and Satish Deshpande had argued for a move to a stronger form of group-membership-plus model. Based on serious sociological evidence, they argued that group membership (caste, community, sex) should become but one factor in assessing a person’s eligibility for affirmative action, along with family background (managerial, professional, clerical, non-income-tax-paying) and the type of school a person went to (government or private, English or vernacular medium, residential, etc). Group-membership-plus models are attractive because they are likely to impose lower expressive costs on the beneficiaries. As a related bonus, they might also help target the benefits better by prioritising the weakest members of a weak group. Another allocation criterion, with arguably even lower expressive costs but more difficult to design, could be described as indirect affirmative action. The idea is simple — instead of allocating benefits directly on the basis of group membership, we should allocate these benefits based on neutral criteria that have a strong correlation with the membership of a disadvantaged group. For example, when race-based admissions at the University of Texas were introduced, it simply guaranteed admissions to the top 10 per cent of the graduating class of every Texan high school. Given the background of racially segregated schooling in Texas, the university’s intake of black students shot up dramatically. Sociological research could no doubt reveal similar correlations between group membership and (relatively) neutral criteria, such as the type of school attended, parents’ occupation and education, family size, sibling education, place of residence, use of the Mahatma Gandhi National Rural Employment Guarantee Scheme, and so on. This isn’t a simplistic income-based affirmative action proposal. Income-based proposals deny the fact that disadvantage is not simply material, but also social, cultural and political. By individualising disadvantage, they refuse to appreciate the weight of history that bears down on disadvantaged groups such as Dalits, Adivasis, women, the disabled and hijras. Indirect affirmative action measures, on the other hand, take history seriously and appreciate the multifaceted nature of disadvantage. But they also take the expressive costs of affirmative action seriously. The underlying empirical assumption is that measures that make direct classification based on, say, caste incur a higher expressive cost than a measure that makes classification based on an independently justifiable but less divisive criterion, albeit correlated with caste. We would do well to adopt evidence-based group-membership-plus and indirect affirmative action measures. Unlike the one-size-fits-all group-membership-only models, these alternatives will need to be designed flexibly from the bottom up, in the context of a particular institution and its location. If effectively monitored, that may be no bad thing. 
The writer, an associate professor in law at the University of Oxford and Hackney Fellow in law at Wadham College, is author of ‘A Theory of Discrimination Law’ -