Reservations Have Acted As a Form of Social Engineering to Address Centuries of Oppression and Discrimination: Justice Ravindra Bhat

The Supreme Court Judge spoke at length about the unique form of equality adopted by the Constitution framers, certainly to alleviate long years of suffering on account of caste discrimination, and to redistribute the benefits that privileged elites had monopolized, to a larger segment of the population, turning the caste system on its head.

Affirmative action v. Right to Equality

He observed that the pursuit of an "anti-discrimination" constitutional ethic, is more rigorous than the pursuit of a standalone "right to equality".

"There are, in effect, two integral facets of equality: one, the right of all people to the benefits of society; in that sense, the positive right to equality of opportunity. The second is the positive right to equal treatment or anti-discrimination.

The right to equality in the first sense, is an affirmative one, which is that all human beings should be treated alike. Here, we talk of benefits, of public goods, of services and other rights, which every citizen of a modern state, can expect.

The second limb, i.e. the anti-discrimination law, is to ensure that existing barriers are addressed through innovative state intervention, through policies, through legislation, and ensure that the largest number of people benefit and partake of the benefits of progress achieved," the Judge said.

He added,

"India's equality jurisprudence aspires to secure a society free of all distinctions based on caste; at the same time, it permits as a necessary means to that end, caste-based remedial programs - but only when those programs are carefully designed, limited, and taper over time. The Indian perspective is that affirmative action is nothing but the rationale of a just and fair social order.

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Reservations have acted as a form of social engineering to address centuries of oppression and discrimination, extreme inequities in the distribution of educational opportunity, and the formation of a huge class of Indian citizens who are not equipped to compete without this assistance."

Persistent caste-based discrimination

The Judge highlighted that despite enactment of anti-discrimination provisions like Article 15, 17 of the Constitution, stigmatization, exclusion and rejection continues to persist. He spoke about different forms of discrimination still underlying in India's behavioural patterns, and hinted that the same is often conveniently overlooked.

Talking about the treatment meted out to the Dalit community, Justice Bhat said,

"In rural India, despite the breakdown of the traditional subsistence economy, caste continues to exert its strong presence in many different dimensions. Untouchability is not only present all-over rural India, but it has survived by adapting to new socioeconomic realities and taking on new and insidious forms…

These include the well-known forms, such as preventing Dalits from entering temples, but also a mind-boggling variety of other practices such as Dalits not being allowed to enter the kitchen, even when they are employed as domestic workers, not being allowed to buy or rent houses in non-Dalit residential areas, or public goods such as street lights or municipal taps not being allocated to parts of the village where Dalits live."

He further disclosed that violence against Dalits over the period 2001-2009 increased when expenditure gaps between Dalits and upper castes decreased. "This could be due to upper castes feeling threatened, or a reaction to a perceived unsettling of an entrenched social hierarchy, where Dalits are expected to remain at the bottom of the socio-economic ladder," he said.

Talking about caste discrimination in urban spaces, the Judge said,

"An impactful illustration of this, is an empirical study conducted by Thorat and Attewell. The researchers sent out exactly identical resumes to private companies, both domestic and MNCs, in response to newspaper advertisements in New Delhi. The only difference in the resumes were the easily identifiable names of applicants: Hindu upper caste, Hindu Dalit and Muslims. The study revealed significant differences in callbacks between Hindu upper castes and the other two categories"

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In public administration, it has been found that there is a shortfall in the recruitment of SCs and STs to the elite services (the Indian Administrative Service), and smaller percentages rise to the highest levels of the administration. Their concentration in the Central Government is at the lower echelons of the bureaucracy.

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At the higher levels or promotion stages, formal and informal procedures operated to keep out the SCs, such as ad hoc and temporary positions, elimination through personal evaluation procedures like interviews, personality tests and unfair adverse entries in confidential records."

The most disturbing fact for Justice Bhat is that the category of sweepers (janitors) – an occupation traditionally associated with SCs – has an overwhelming preponderance of these groups, suggesting a reproduction of persistent patterns of social dominance in public institutions. "Interestingly, in the opposition to affirmative action, there is seldom any protest against over-representation of low castes in low paying jobs," he sarcastically remarked.

Affirmative action not a complete remedy for discrimination

Justice Bhat said that there is a pressing need to recognise that while reservations play a crucial equalising role, "more pervasive measures" are necessary to truly realise the ideal of egalitarianism.

"Our efforts to combat discrimination must seek more creative ways in which those who are truly marginalised can realise equal opportunities," the Judge said.

He elaborated,

"Affirmative action in India, due to the specific forms it takes, cannot be a complete remedy for discrimination, if not for any other reason than the fact that they apply only to the public sector, whereas there is some evidence of widespread discrimination in the private sector, which is becoming increasingly important in our economic and social structures today. In order to increase its efficacy, affirmative action policies should be less mechanical: provision of quotas should be seen as the beginning, not the end, as is the current practice. There needs to be a more holistic focus on outcomes. Out of the box measures targeted towards Dalits and Adivasis must be considered, which go beyond the scope of the current reservations system - free, compulsory and good quality primary education that these communities are actually able to access, vigorous expansion of employment opportunities that go beyond traditional caste occupations, land reforms wherever feasible, and subsidies/support for self- employment."

In this context, Justice Bhat cited the American example of encouraging diversity by incentivising it. Even in India, he said, States such as UP, Bihar, Karnataka, AP and Telengana follow a policy of affirmative action in awarding contracts and in that manner protecting the SC and ST entrepreneurs' entry into trade, business and other public works as contractors.

"Recently, Karnataka enacted a legislation, namely, The Karnataka Transparency in Public Procurement (Amendment) Act, 2016, which reserves 24.1% for SC and ST contracts in all Government works, public contracts up to Rs 50 lakh. This law aims to ensure the presence of SC and ST contractors and to get the award of Government work without rigid tender process. Orissa, too provides for a price preference to SC/ST entrepreneurs to the extent of 10% of contracts of a certain value," Justice Bhat said.

So far as the private sector is concerned, the Judge suggested that discrimination and inequality therefrom may be eradicated through corporate social responsibility.

"The definition and scope of CSR needs to be broadened to include measures to counteract the natural tendencies towards exclusion of certain groups. Hiring managers in the private sector also need to be more sensitive to societal patterns of exclusion and must consciously make an attempt not to fall prey dominant social stereotypes, which penalize people due to their birth into stigmatizing jobs, even if they might be individually qualified and competent," Justice Bhat said.

He added,

"companies can also pay attention to supplier diversity. By encouraging supplies from Dalit, tribal, disadvantaged Muslim or deprived classes owned firms, the large organized private sector in India could give a huge boost to the micro, medium and small enterprises owned by marginalized groups.

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Other focused interventions are also essential, such as efforts to eliminate bonded and child labour, which overlaps significantly with caste discrimination, as the vast majority of bonded labourers are Dalits."

Combat underlying discrimination

Justice Bhat said that the time has come for all of us to own up our responsibility as citizens to promote an equality-based culture.

"This means we have to address our own ingrained and unconscious, and at times, irrational prejudices. It is these prejudices, which result in discrimination. We have to recognize that discrimination of whatever form or kind shares similar features," he said.

He spelled out different forms of discriminations and remarked that in order to achieve equality, we need to take all people to be as us, in our hearts, willing to share our tables, and do all those things which we do with our friends and family.

"More than anything, it is the feeling that one is treated equally, that matters. Till then, as Ambedkar said, we have achieved a society where each woman and man has a vote; but each man and woman does not have equal value, in the eyes of each of us," Justice Bhat said.

Talking about Sh. LG Havanur, a freedom fighter who participated in the Quit India movement, Justice Bhat said,

"The landmark contribution of his career came in 1972 when he was appointed under the Commissions of Inquiry Act 1952 as the Chairman, Karnataka Backward Classes Commission. He served in that capacity up to 1975 and presented the Havanur Report on the socially marginalised people on 19^th November 1975."

Havanur obtained a degree in law from the Karnataka University in 1951 and became the first person from his Valmiki Community to pass in the LL.B. exam. Talking about his 'path-breaking' contributions in India legal jurisprudence, Justice Bhat said,

"Havanur's report on the backward classes, published in 1975, and its implementation was truly a decisive movement in the social transformation of Karnataka's socio-economic structure. Havanur was one of the early thinkers who expressed that the Indian Constitution does not express itself against caste. His vast knowledge of the Indian Constitution and his indepth study of the Backward Classes and Tribes compelled the Lawyer's Committee for Civil Rights, Washington and the African National Congress to invite him for preparing a Constitution for New South Africa in 1991."

Read the Full Text of Justice Ravindra Bhat's Speech

I am honoured to be here with you, to deliver the annual Havanur endowment memorial lecture.

Late Shri L.G. Havanur's contribution is path-breaking; his drafting a report on the socially marginalised people i.e. known as the Havanur Report was implemented by the then Government of Karnataka in 1977 in letter and spirit. My first association with him goes back to 1982 when the Karnataka reservation policy was challenged and was being heard by the Supreme Court; I had just joined the bar. My knowledge was sketchy and views typcial, about reservations and social transformation; I realized the vastness and complexity of the social justice project which the Consitution makers had envisioned during the time I had to work intensely in the defense of the Mandal Commission report, for about six months when I was in the Attorney General's team, in 1990, in the Indira Sawhney case.

Born into a family of freedom fighters on 24th March 1925, Havanur, who had participated in the Quit India movement, had a flair for that art led to his graduation in painting from J.J. School of Arts Bombay. He passed LL.B. from Karnataka University in 1951 and became the first person from his Valmiki Community to pass in the LL.B. exam. In 1953 he enrolled as a Lawyer in the Bombay High Court. He served in public offices- as Vice President of the Municipality of Ranebennur from 1956 to 1962 and later as Minister, of law in 1972- in the Karnataka State cabinet. Along the way, he forayed into academics by serving as an Assistant Processor in Government Law College Bangalore and later resigned from that job in 1969. He also joined as Government Pleader in the High Court in 1969 and resigned from that position in 1970.

Then came the landmark contribution of his career in 1972 when he was appointed under the Commissions of Inquiry Act 1952 as the Chairman, Karnataka Backward Classes Commission. He served in that capacity up to 1975 and presented the Havanur Report on 19th of November 1975. He was also a member of Karnataka Legislative Council from which he resigned in 1981.

Havanur's report on the backward classes, published in 1975, and its implementation was truly a decisive movement in the social transformation of Karnataka's socio-economic structure. Havanur was one of the early thinkers who expressed that the Indian Constitution does not express itself against caste. His vast knowledge of the Indian Constitution and his indepth study of the Backward Classes and Tribes compelled the Lawyer's Committee for Civil Rights, Washington and the African National Congress to invite him for preparing a Constitution for New South Africa in 1991.

He was the recipient of several honours: the Sri D. Devraj Urs Award in 1998; Dr. B. R. Ambedkar Award in 2005; the Karnataka High Court felicitated him during its Golden Jubilee Celebrations in April 2006.

Havanur's formidable exterior, with a fierce walrus moustache, belied his humorous nature, which one would get to see, when he dissolved into a smile, the warmth spread throughout his face. It is in the fitness of things to remember that Late Shri. L.G. Havanur was the founder President of the Lawyers' Forum for Social Justice

Combating Discrimination – The Need for a New Framework

A just society is that society in which ascending sense of reverence and descending sense of contempt is dissolved into the creation of a compassionate society.

- B.R. Ambedkar

Questions of discrimination – especially on grounds of caste are as relevant today as they were at the time of the framing of our Constitution. When the drafters of India's Constitution met in 1948, they were confronted with the need to alleviate long years of suffering on account of caste discrimination, and redistribute the benefits that privileged elites had monopolized, to a larger segment of the population, turning the caste system on its head. The Constitution envisions the creation of a society whose citizens share a strong sense of national identity despite cultural diversity and, based on this, the creation of an intrinsically diverse and plural nation-state. The institutions of governance were intended to conform to the individualist conception of equal citizenship, encompassing equal rights for all individual citizens and upholding the principle of equality before the law. At the heart of the constitutional scheme, lies a commitment to egalitarianism, and it is this ideal that we must strive to uphold and foster in the social orders that each successive generation brings.

India's constitutional project must be viewed as an exercise in at once, deconstructing and reshaping the relationship between power, discrimination and violence. Power in this sense is not to be understood as brute physical power. The power that I refer to here, is access to or control over one's freedoms, over one's capabilities and over one's dignity. In that sense, it is more than a simple paradigm of the state's monolithic power as against the oppressed citizen. It is a construct that applies to all power equations, between citizens, between aggregates of citizens and incorporated collectives of economic power. Discrimination then is to be understood as not just as powerlessness, but in the context of sustained societal construction of barriers limiting access to freedom and dignity. Some of the barriers which act as pivots of discrimination are constitutionally reflected in Article 15 (1) and 16. But they are by no means exhaustive. New barriers and indices of discrimination evolve, with changing power equations. And, violence, of both varieties -the stark and subtle, is to be understood as expressions of dominance over the powerless.

Viewed in this light, the pursuit of an antidiscrimination constitutional ethic, is more rigorous than the pursuit of a standalone "right to equality". It is much more than redistribution of resources, affirmative action in public jobs and educational institutions. It is against this backdrop that we need to build upon the triangular relationship between libertyequality-fraternity. This narrative order of these principles in the Preambular vision, may be slightly modified to place fraternity in the middle, as the buckle that fastens liberty and equality together. Liberty and equality, often act as competing claims in rights adjudication, expressed as merit and affirmative action. The constitutional ethic that reconciles the two is fraternity.

As a judgment of the Supreme Court reminded us, the Preamble and its promise of social and political justice, is to be achieved despite and notwithstanding our prior history of degradation of humans amongst us by ascribed status, and of economic poverty. These objectives are to ensure that "certain invaluable qualities, such as dignity, fraternity, security and integrity of our nation-state, inform all aspects of social order." [Indian Medical Association v Union of India 2011 (7) SCC 179]

The nature of fraternity renders judicial enforcement in a direct and linear fashion an extremely challenging task. That is not to say that it must not inform and instruct judicial decisions on discrimination. It could inform discrimination claims in housing, education and services, where equality as a judicial tool may be not be appropriate in the absence of a claim against the State. It could inform regulation of political and social institutions and could induce a fresh social consciousness into our democracy. The ethic of fraternity must inform fresh perspectives on enforcing equality. Fraternal pursuits on redistribution of resources, opportunities and public goods could deliver less confrontational solutions, which may not be exclusionary. In figurative terms, it may enable everyone to run the race, not depriving anyone of a chance to run, but provide different incentives and vantage points to run. Fraternal values could be employed to persuade economic institutions to be more diverse, broadening our hitherto myopic approach of the only the State pursuing distributive goals. Fraternity focuses our resolve to see the Constitution as a charter of governance of the republic, as a delineation of the powers of the state in its various manifestations vis-à-vis inalienable liberties and a document delimiting the rights and responsibilities of the Union and its constituent states. It is more: it is also a compact between people, about the relationships that they guarantee to each other (apart from the guarantee of liberties vis-à-vis the state) in what was a society riven along caste and sectarian divisions. That is why the preambular assurance that the republic would be one which guarantees to its people liberties, dignity, equality of status and opportunity and fraternity.

There are, in effect, two integral facets of equality: one, the right of all people to the benefits of society; in that sense, the positive right to equality of opportunity. The second is the positive right to equal treatment or anti-discrimination. At the first appearance both seem indistinguishable, but a closer look shows them to be different in shape and content. The right to equality in the first sense, is an affirmative one, which is that all human beings should be treated alike. Here, we talk of benefits, of public goods, of services and other rights, which every citizen of a modern state, can expect. The equality of opportunity here pre-supposes that there is a right to claim, inhering in all. Thus, the right to claim public employment, the right to claim entry in public spaces, the right to claim admission in public institutions of learning, etc should not have any barriers based on caste, race, gender, religion, etc. This is the right to anti-discrimination. The second limb, i.e. the anti-discrimination law, is to ensure that existing barriers are addressed through innovative state intervention, through policies, through legislation, and ensure that the largest number of people benefit and partake of the benefits of progress achieved.

One of the unique provisions that our founding fathers gave us, in the Constitution was the ability of people to act against discrimination, not only in respect of public institutions, such as education, and in public employment, but also in access to facilities that are publicly available, i.e. access to establishments that are not state or state funded. This access, by reason of Article 15 (2) in today's economic set-up means that access to shops, places of entertainment, hotels, public restaurants and "places of public resort" cannot be denied on grounds of caste, religion, gender, place of birth, etc. This assures that all citizens have to necessarily accommodate each other in such places, even though they may be not established by the state or funded by the state. More importantly is the injunction against untouchability, under Article 17, which underlines societal resolve to eradicate this obnoxious practise of treating a set of human beings as second rate citizens.

One of the ways in which the state has sought to increase representation in education and public employment of those who face social discrimination, is through reservations. Indian law has created a set of legal categories: Scheduled Castes ("SCs"), comprising the formerly untouchable castes; Scheduled Tribes ("STs"), referring to tribal groups; and the "other backward classes" ("OBCs"), identified through social and educational backwardness. In relation to these groups, the normative justification for reservations has been that equality of opportunity would be effectively denied to these groups as they could not, given their histories of marginalisation, compete on equal terms, and hence required special guarantees to access opportunities they would otherwise be denied.

We have, today, identified more than 3,500 distinct social groups as needing preferential treatment and created reservations up to fifty percent in education and employment. Policies of reservation are rooted in India's constitutional guarantees of equality that authorize the government to make "special provisions" for "socially and educationally backward classes." In the first three decades, selection of groups to receive preferential treatment was left largely to state governments, with the result that the Indian Supreme Court repeatedly struck down plans that seemed primarily to benefit certain groups or that were based on traditional assumptions about caste-based prejudice without empirical research to show which groups were truly in greatest need. In 1980, the Mandal Commission was appointed, which conducted a nationwide survey that used a variety of empirical factors - including social discrimination, educational deprivation and economic status - to define groups in need, producing the list of 3500 "backward classes."

India has tackled the question of differential needs for affirmative action amongst these groups, in various ways. The Scheduled Castes and Scheduled Tribes, considered the most disadvantaged in every respect, each have their own separate quotas that approximate a proportion to their share of the population at the state level; they do not have to compete for these reserved seats against the more populous and frequently relatively influential OBCs. In 1992, the Supreme Court created a further level of differentiation within beneficiary groups by imposing a means test for individual eligibility. This "creamy layer" approach addresses two different but related concerns: (1) that the benefits of reservations are not distributed evenly throughout a backward group but instead are monopolized by persons at the socioeconomic top of the group; and (2) that reservations are going to persons who do not in fact need them because they have been raised in privileged circumstances due to parental success in overcoming the disadvantaged status of the backward group.

India's equality jurisprudence aspires to secure a society free of all distinctions based on caste; at the same time, it permits as a necessary means to that end, caste-based remedial programs - but only when those programs are carefully designed, limited, and taper over time. The Indian perspective is that affirmative action is nothing but the rationale of a just and fair social order. Affirmative action is not an exception to equality of treatment, but a method of ensuring equality, by enabling all individuals to perform according to their potentials.

A comparative perspective

Affirmative Action in USA:

The affirmative action policies in USA are race sensitive and have led to the development of the minorities and extend to women (unlike in India, where these programs have appeared recently, in the last 20 years). Some of them were withdrawn due to the criticism that they result in extreme favoritism towards minorities and women. Affirmative action in the US essentially aims to achieve targeted goals and not provide blanket reservation to the specific quotas. Executive order no. 10925 of the US president directed "all government agencies to go beyond passive non-discrimination to take affirmative action so as not to discriminate in hiring". The 1964, Civil Rights Act mandated non-discrimination by race/ethnicity within any federally assisted program. The executive order of 10925 was revised by the executive order of 1965 which called for affirmative action in recruitment and outreach practices.

The main objective of affirmative action mechanism in USA is to combat racism and discrimination in general in American society. It is argued that such action diversifies the homogenous institutions and places of employment. There is criticism of the affirmative action in USA, as the opponents allegedly call it as "reverse discrimination". It is said to be psychologically deleterious to the coloured people, women and any other intended beneficiaries. However, another line of criticism has been proclaimed by the Critical Race Theory which argues that the "affirmative action" programs are not unconstitutional or unfair rather slow-paced and ineffective.

South Africa

South Africa, like India, has a long-standing and rigid history of social discrimination. Combating the racial inequalities is the main aim of affirmative action in South Africa, some consideration is also paid to the need for affirmative action in favour of women. It was only in 1994, every South African was allowed to participate in parliamentary elections in the form of "one person, one vote". Following the attainment of democracy, the government led by African National Congress chose to implement affirmative action legislation to correct previous inequalities this policy came to be known as "employment equity". The Reconstruction and Development Programmes [Reconstruction and Development Program (1994)] thus, began to readdress past imbalances.

Affirmative action in South Africa ensures that qualified people from designated disadvantaged groups have equal opportunities. The Employment Equality Act of 1998 gave an increased impetus to the affirmative action movement in South Africa. Although the affirmative action has altered the political and economic conditions of the once-apartheid state, it has not succeeded in widely transforming the lives of the poor and marginalized.

Affirmative Action in Brazil:

Brazil faced racial ambiguity and inequality in greater terms as compared to most other states. [Antonio Sergio, Colour and Race in Brazil: From Whitening to the Search for Afro-Descent (2010)] In 1968, Brazilian government signed U.N. Convention 111 which mandated the promotion of racial/ethnic minorities in occupations. In 2001, a major leap was taken when President Fernando Henrique Cardoso signed National Program for Affirmative Action, aimed at diversifying governmental agencies. The goal of affirmative action in Brazil was twofold: to combat racial discrimination and to expand the access to higher education for traditionally disadvantaged groups so as to create a level playing field.

Rio de Janeiro took a major step in light of reservation system when in 2001 it announced reservation of 40% of admission slots in state universities for coloured and pardo students and 50% of state university slots for public school graduates. This quota was subsequently reduced in 2003 due to major criticism. Finally, in 2009, the State University of Rio de Janeiro's quota program was held unconstitutional by a state tribunal.

Though the quota system of affirmative action in Brazil was subjected to much criticism, it was upheld by the eleven-member Brazilian Supreme Court [Democratas Party (DEM) ADPF 186 and The Pro Uni Case - ADI 3330]. This has led to the change in racial identity in Brazilian society. Affirmative action programmes in Brazil have achieved success; nevertheless, a lot needs to be done in general context as the major focus is confined to equal opportunities in the Universities.

Contemporary realities

There is sufficient evidence that amply demonstrates the various aspects of stigmatization, exclusion and rejection that Dalits continue to face in contemporary India. In rural India, despite the breakdown of the traditional subsistence economy, caste continues to exert its strong presence in many different dimensions. Untouchability is not only present all-over rural India, but it has survived by adapting to new socioeconomic realities and taking on new and insidious forms. A study conducted by the National Council of Applied Economic Research revealed that one in four Indians admits to practising some form of untouchability in their homes. As recently as 2010, a survey documented 98 types of untouchability practices directed towards Dalits by non-Dalits. These include the well-known forms, such as preventing Dalits from entering temples, but also a mind-boggling variety of other practices such as Dalits not being allowed to enter the kitchen, even when they are employed as domestic workers, not being allowed to buy or rent houses in non-Dalit residential areas, or public goods such as street lights or municipal taps not being allocated to parts of the village where Dalits live. A comprehensive empirical analysis of violence against Dalits over the period 2001-2009 found that violence (murder, arson, destruction of property, rape, assault, bodily harm and so forth) against Dalits increased when expenditure gaps between Dalits and upper castes decrease. This could be due to upper castes feeling threatened, or a reaction to a perceived unsettling of an entrenched social hierarchy, where Dalits are expected to remain at the bottom of the socio-economic ladder.

In urban spaces too, caste discrimination prevails in various forms, with very real consequences of deprivation. An impactful illustration of this, is an empirical study conducted by Thorat and Attewell [Sukhdev Thorat and Paul Attewal: Urban Labour Market Discrimination (2009) Indian Institute of Dalilt Studies]. The researchers sent out exactly identical resumes to private companies, both domestic and MNCs, in response to newspaper advertisements in New Delhi. The only difference in the resumes were the easily identifiable names of applicants: Hindu upper caste, Hindu Dalit and Muslims. The study revealed significant differences in call-backs between Hindu upper castes and the other two categories. Another such study was done for firms in Chennai, which tested for the effects of caste and gender, and found that Dalit women got the lowest call-backs.

Reservations are designed to encourage representation in the public sector. There is still a long way to go to if meaningful representation to be achieved despite the fact that it is many decades since reservations first made their appearance in India. In public administration, it has been found that there is a shortfall in the recruitment of SCs and STs to the elite services (the Indian Administrative Service), and smaller percentages rise to the highest levels of the administration. Their concentration in the Central Government is at the lower echelons of the bureaucracy. Most disturbing is the fact that the category of sweepers (janitors) – an occupation traditionally associated with SCs – has an overwhelming preponderance of these groups, suggesting a reproduction of persistent patterns of social dominance in public institutions. Interestingly, in the opposition to affirmative action, there is seldom any protest against over-representation of low castes in low paying jobs.

Marc Galanter has observed that before the 1990s, for years, quotas remain unfulfilled for reasons of "indifference/hostility on the part of the appointing authorities, insufficient publicisation of vacancies and the sheer expense of application". At the higher levels or promotion stages, formal and informal procedures operated to keep out the SCs, such as ad hoc and temporary positions, elimination through personal evaluation procedures like interviews, personality tests and unfair adverse entries in confidential records.

In higher education, reservations have a crucial role to play. Introducing learners from these groups to another world and a different future breaks the silence imposed by marginality, caste prejudice and poverty. Reservations have acted as a form of social engineering to address centuries of oppression and discrimination, extreme inequities in the distribution of educational opportunity, and the formation of a huge class of Indian citizens who are not equipped to compete without this assistance. These are not matters of history. Dalits cite countless examples from their own experience where they have been interrogated about their caste identities, castigated by prospective employers for their support of reservations, subjected to harassment or disrespect, and denied jobs (as far as they know) solely on account of their caste background.

There are two dangers against which affirmative action should be guarded if it is to survive challenges. First, it must be a tapering concept- and seen to be so - in order to redeem itself from the compulsions of electoral politics inevitable in democratic societies. Second, we must reassess existing strategies in light of better knowledge of social realities, and affirmative action must be constructed and justified in terms of these realities, grounded in empirical research.

There is a pressing need now to recognise that while reservations play a crucial equalising role, one should also equally acknowledge that more pervasive measures are necessary to truly realise our ideal of egalitarianism. Our efforts to combat discrimination must seek more creative ways in which those who are truly marginalised can realise equal opportunities. In education, this can be done through efforts to address educational inequality at much younger ages. Without a massive commitment to improving primary school education, we cannot realise the true potential of reservations in higher education. Students from marginalised communities find it hard to succeed in competitive entrance examinations due to past handicaps (lack of good quality schooling, lack of access to special tutorial or coaching centres that prepare candidates for open competitive examinations and so forth). There are specific remedial measures that can be applied to address these problems: bridge courses, special courses in mathematics and English (the two areas with the maximum gaps between SCs and others), etc. The University Grants Commission, the government body that regulates higher education, has special funds allocated for such remedial measures, but these funds remain unutilized for the most part, both because of lack of awareness about these funds and, more fundamentally, because of a lack of serious will to make affirmative action succeed.

Affirmative action in India, due to the specific forms it takes, cannot be a complete remedy for discrimination, if not for any other reason than the fact that they apply only to the public sector, whereas there is some evidence of widespread discrimination in the private sector, which is becoming increasingly important in our economic and social structures today. In order to increase its efficacy, affirmative action policies should be less mechanical: provision of quotas should be seen as the beginning, not the end, as is the current practice. There needs to be a more holistic focus on outcomes. Out of the box measures targeted towards Dalits and Adivasis must be considered, which go beyond the scope of the current reservations system - free, compulsory and good quality primary education that these communities are actually able to access, vigorous expansion of employment opportunities that go beyond traditional caste occupations, land reforms wherever feasible, and subsidies/support for self- employment.

The American practice of encouraging diversity by incentivising it by for instance, the award of government contracts to firms that have a good record of recruiting members from racially or ethnically disadvantaged groups, found echoes in The Bhopal Declaration that was being implemented in the state of Madhya Pradesh. [https://www.hurights.or.jp/archives/other_documents/section1/2010/03/bhopal-declaration-2002.html – Clause 19] There have been also attempts by States such as UP, Bihar, Karnataka, AP and Telengana for following a policy of affirmative action in awarding contracts and in that manner protecting the SC and ST entrepreneurs' entry into trade, business and other public works as contractors. Recently, Karnataka enacted a legislation, namely, The Karnataka Transparency in Public Procurement (Amendment) Act, 2016, which reserves 24.1% for SC and ST contracts in all Government works, public contracts up to Rs 50 lakh. This law aims to ensure the presence of SC and ST contractors and to get the award of Government work without rigid tender process. Orissa, too provides for a price preference to SC/ST entrepreneurs to the extent of 10% of contracts of a certain value.

Evidence across all states in India and in different sectors has shown that access to productive employment and decent jobs remains confined to a few sections of the workforce, while the rest eke out a living in the informal economy. The lines of division between those who are "included" in good jobs and those who are "excluded" run deep, and are based on caste, religion, region, all of which overlap with class and gender, such that even within the small section of the labour force which is productively employed in decent jobs, some groups are better represented than others, some groups are placed higher than others, while some castes and religious groups are practically absent in the top echelons of the private corporate sector. While private sector hiring managers firmly believe in jobs being allocated on the basis of individual merit, their views about how merit is distributed overlaps very strongly with existing stereotypes around caste, religion, gender and regional differences.

One way in which the private sector can make substantive contributions to alleviate discrimination and inequality, is through its corporate social responsibility (CSR). CSR has been compulsory in India since 2013. These initiatives have taken two major forms: education of the under-privileged either through special schools or other programmes to support schoolgoing children, and support to poor women through home-based work or micro-finance. While these measures are significant, there are other spheres where CSR could be directed, with even greater benefits. The definition and scope of CSR needs to be broadened to include measures to counteract the natural tendencies towards exclusion of certain groups. Hiring managers in the private sector also need to be more sensitive to societal patterns of exclusion and must consciously make an attempt not to fall prey dominant social stereotypes, which penalize people due to their birth into stigmatizing jobs, even if they might be individually qualified and competent.

In addition to being sensitized to the problem of under-representation at the time of hiring (by actively pursuing diversity enhancing policies and/or by equal opportunity employment policies), companies can also pay attention to supplier diversity. By encouraging supplies from Dalit, tribal, disadvantaged Muslim or deprived classes owned firms, the large organized private sector in India could give a huge boost to the micro, medium and small enterprises owned by marginalized groups. Indeed, this is also one of the planks used in the USA, for instance, where minority-owned businesses are not only given active financial incentives by the government, but larger firms are expected to source a part of their supplies from minorityowned businesses. Given that typically, Dalit owned micro enterprises employ greater proportion of Dalits (as compared to enterprises owned by non-Dalits), an active supplier diversity programme would also boost employment.

Other focused interventions are also essential, such as efforts to eliminate bonded and child labour, which overlaps significantly with caste discrimination, as the vast majority of bonded labourers are Dalits. A report has suggested that "retailers and wholesalers should pressure suppliers not to use bonded child labour in the manufacture of their goods and to support a good faith program to phase children out of bondage, offering them financial assistance and access to formal education."

A commendable effort was made by the All India Organization of Employers (AIOE) along with Federation of Indian Chambers of Commerce and Industry (FICCI), in framing a Code of Conduct for 'Promotion of Affirmative Action in Private Sector in India'. This document sets forth guidelines for the private sector to promote affirmative action measures in their operations. It recommends that:

• Private sector investment in education of historically discriminated groups of society, by opening or adopting schools/ colleges/ educational institutions in clusters with higher representation of these groups;

• skill development programs for historically discriminated groups in their area of expertise;

• Lending technical/ professional experts and infrastructure for training of historically discriminated groups, and commit to absorb the successful candidates;

• Creation of platforms for direct interface with students/trainees of vocational training institutions/ civil societies, located in the areas of high concentration of historically discriminated groups, to orient them on market demands, bridge the skill gap, and to better prepare them to get employment;

• Providing equal opportunities to all qualified applicants for employment without regard to their race, caste, religion, colour, ancestry, marital status, gender, sexual orientation, age, nationality, ethnic origin or disability; and a fair employment policy.

This is a good starting point for firms in the private sector to be more inclusive of marginalised and disadvantaged communities. In the present day, it is important to ensure that large sections of the population are not left out of the growth story, because if they are, the consequent rise in inequalities will generate large-scale resentment and social unrest. Here, like in Madhya Pradesh, Telengana, Orissa and Karnataka it would be appropriate to implement policies which would incentivize private employers by giving some preference, in the matter of grant of public contracts, through extra evaluation points, if they have up to a certain percentage of the workforce from SC/STs, women and other disadvantaged groups.

Further, there is frequently an overlap between cultural and material inequalities; between, on the one hand, discrimination on account of caste or religious identity and, on the other hand, economic disadvantage. Traditional and historical forms of social inequality thus co-exist with, and are reinforced by, inequalities arising in the sphere of economic activity. Both public policy and civil society have failed to adequately recognise the fact that the cultural and the material are often two faces of the same phenomenon. Whether it is SCs, STs or religious minorities, members of these communities are much more likely than members of other groups to be deprived of basic needs, of development, and of dignity. Questions of rights and basic needs are not divorced from questions of dignity; questions of cultural rights are not separate from those of social and economic rights. These forms of multiple and mutually compounding disadvantage present challenges both of recognition and of redistribution, and suggest that the groups that need special attention are those that are doubly disadvantaged, i.e. both culturally and in terms of their human development indicators. Peoples duties.

The time has come for us to own up our responsibility as citizens to promote a equality based culture. This means we have to address our own ingrained and unconscious, and at times, irrational prejudices. It is these prejudices, which result in discrimination. We have to recognize that discrimination of whatever form or kind shares similar features.

(a) it can be individual, group or institutional;

(b) it can be direct or indirect, overt or covert;

(c) it is based on the belief that one group is inferior;

(d) it involves power relationship - the "superior" group or individual is in the ''up" position;

(e) the problem becomes focussed on the "inferior" individual or group and not on the "superior" individual or group, e.g. reserved category problem, member of a religion, or belonging to a backward region, women not being able to take a joke;

(f) individual identity is lost to group identity, e.g. Mr X or Ms. X is not seen as one, with a particular history, but as a part of a group (a reserved category employee and therefore, not "upto par") or a married woman who might get pregnant or have to stay off work to look after children, and who is generally unreliable.

A consensus study report published in 2004 by the National Academy of Sciences, compiled statistical data and scholarship on discrimination and its forms. The report may provides guidance and clarity on the content of anti discrimination law. The Report categorizes discrimination into three: (a) explicit, direct hostility, which it manifests in

(i) verbal antagonism (which includes casual casteist, racist or religious based remarks, gender slurs, etc), avoidance, segregation, physical attack and aggression;

(ii) Avoidance which means choosing comfort one's caste, race, religious or group (in group) over interaction with the other group (the outgroup). This is apparently harmless, but practised over long periods and on widespread basis, results in exclusion, especially in employment hiring, promoting educational opportunities, access to health care. This kind of behavior can be more damaging than direct abuse.

(iii) Segregation is the consequence of active exclusion of disadvantaged caste or other such groups, from allocation of resources and access to institutions. These include denial of education, housing, employment, health care, etc.

(b) The other behavior is subtle prejudice, which are a set of unconscious beliefs and associations which affect attitudes and behaviors of members of ingroup towards outgroup. Indirect prejudice results in members of the ingroup blaming the disadvantaged, outgroup members for their laziness, inefficiency, lack of education, drive, etc. This results in a Catch 22 syndrome: outgroup members should try harder, not be lazy and at the same time, not impose themselves where they are unwanted.

(c) Another form is statistical discrimination or profiling. In this an individual from the ingroup uses overall beliefs about a group (people of a community being very sharp, some members of a tribe or caste being lazy or unreliable, people from some region or state or caste, or community being very quarrelsome) which results in decisions adverse to individuals.

(d) Institutionalized or structural discrimination is the reflection, by organizations, of biases similar to those which people have, who operate within them. Rules in such organizations at times, evolve from past histories, including of discrimination, which are not easily overcome which appear neutral, facially. But if these processes function in a way leading to differential treatment or produces differential the results are discriminatory. These typically operate in location of educational institutions, such as schools, housing and similar public amenities. They also apply to rules relating to career advancement, such as promotion, appraisals, etc.

John F Kennedy said that all of us may not have equal talent, but should have equal opportunity. I would say, that opportunity should be meaningful, and not formal. Till now, the method of testing a person's worth is based on certain assumptions which are rooted in past prejudices: such as intelligence tests premised on language proficiency, rote learning, self confidence or assurance. Often, these tests are stereotypes and blunt instruments. We have started realizing that proficiency in English or general knowledge, or other rote based information cramming is not what society needs, but other qualities which gauge a candidate's abilities to absorb information, develop skills, and communicate with others. Here the language too plays an important role: not knowledge of English, but the use of terms which are neutral, and which show compassion and empathy.

To achieve what is assured to each citizen, by our unique Constitution which speaks not only of equality before the law, but also equal protection of laws and equality of opportunity we have to go a long, long way. The Supreme Court has opined that the expression "equality before law" has to be understood in the light of the Preamble as well as Part IV of the Constitution. The Preamble to the Constitution speaks of social, economic and political justice, equality of opportunity, equality of status, dignity of the individual, and fraternity among its citizens. More importantly, the Directive Principles of State Policy are meant to guide state action. Particularly, Articles 38 and 39 provide that the state shall ensure that the wealth of the society shall be equally distributed among all, that there should be no concentration of wealth in the hands of a few. The Indian Constitution, therefore, envisions radical substantive equality, and it is this ideal that we must strive towards in envisioning how our society will be structured for future generations.

The task is daunting; 73 years after independence, there are promises to be kept. Challenges faced by new generations, thrown by disruptions, such as exponential growth of technology are dangers, and opportunities: dangers, in that they can, and have often, created exclusions. Opportunities, because new technologies can disrupt and enable empowerment. Yet, all that is of no avail, until all of us, recognize that each of us, belongs to the human race, born in the same manner, are subjected to the same processes, like disease, hunger, and mental trauma, and that realization results in the treatment of each one as we would wish to be treated ourselves. Not till, we take all people to be as us, in our hearts, willing to share our tables, and do all those things which we do with our friends and family, can we achieve equality. More than anything, it is the feeling that one is treated equally, that matters. Till then, as Ambedkar said, we have achieved a society where each woman and man has a vote; but each man and woman does not have equal value, in the eyes of each of us."