Women's Reservation Bill: Fighting Inequality With Affirmative Action

The Constituent Assembly of India, indirectly elected by the members of the provincial assemblies that existed under the British administration, met for the first time on December 9, 1946, and over the course of the next three years, the CA had the tough job of nation building in front of them. Following over two centuries of imperial rule, on the eve of independence, the leaders of the freedom movement as well as the members of the CA were faced with multiple challenges - poverty, hunger, unemployment, illiteracy, political factionalism and communal tensions following a bloody Partition. But perhaps the biggest problem that underlined and interlinked most of these challenges was the problem of caste. How to ensure that historically marginalised sections of Indian society receive the benefits of this newly independent nation? The years between 1946 and 1950 saw intense debates about the issue, culminating in the adoption of reservations for marginalised communities in key sectors like employment, education, governance etc. 

Today, the country celebrates the historic possibility of 33 per cent reservation for women in Lok Sabha and all state Legislative Assemblies. The proposed 128th Constitutional Amendment Bill 2023, dubbed ‘Narishakti Vandan Adhiniyam’, also extends the quota to seats reserved for SC/STs, essentially bringing in a quota within a quota. The move is likely to have a deeper impact not just on the role of women in Indian politics but on Indian electoral politics at large. 

It is pertinent to remember the role of reservations in Indian politics and nation-building and why it was chosen as the path for the emancipation of marginalised populations.

Reservation as Affirmative Action

Reservation, by its very definition, is a form of discrimination. But reservation for marginalised sections flows from the doctrine of “affirmative action”. 

The idea did not come about in a day. 

“Affirmative action” refers to positive steps taken with a view to increase the representation of minorities in areas of employment, education, and cultural spaces from which they have been historically excluded. It has its roots in the West, especially in the United States of America where the Black and native populations had faced years of systematic discrimination and slavery. 

India started testing the idea of affirmative action and protected electorates from the 19th century itself. 

In 1882, British officer William Hunter and Dalit reformer Jyotirao Phule conceptualised the reservation policy contextualised to the Indian context. In 1932, Dr BR Ambedkar, who is seen as the father of the anti-caste movement in modern India, signed the historic ‘Poona Pact’ with Mahatma Gandhi ensuring reservation of electoral seats for the “depressed classes” in the legislature of British India in 1932.

It was Dr BR Ambedkar again who raised the issue of reservations in the Constituent Assembly debates. In fact, Ambedkar’s ideology and his idea of political representation were initiated as far back as 1919. It is to be noted that Gandhi, as well as several other caste-Hindu leaders, were against separate reservations for “untouchables” (whom he renamed as “Harijan”) as he believed that Harijan was invariably a part of Hindu society. The Poona Pact, which represented a compromise between Ambedkar and Gandhi (who had been fasting unto death against separate electorates for Harijans) resulted in the carving out of reserved seats for these ‘depressed classes’ from among the general seats and also altered the method of election (not separate electorates as Ambedkar had initially demanded but a two-round election process). 

The Constituent Assembly debates on the reservation are significant and one of the most stellar examples of the moral authority and legal expertise Ambedkar wielded over the nation and its Constitution, factors that nevertheless aided the Congress in unifying disparate and antagonistic masses of upper caste Hindus and oppressed castes in the years after independence. 

Ambedkar argued that the only way to provide equal representation to historically marginalised populations was through affirmative action in the form of reservation. The idea was that inequality could be eradicated not with equality but with equity as historically oppressed persons can never be represented equally in political or social arenas dominated by privileged upper-caste voters and leaders. In 1991, following the Mandal Commission's recommendations, OBCs were also brought under the fold of reservation. 

Reservations and the Black Rights Movement

The first time “affirmative action” showed up in American government policy was during World War II when US President Franklin D. Roosevelt issued an Executive Order barring discrimination against blacks in the federal government by war industries. This means that blacks and women who had hitherto remained out of the formal workforce could now get hired for jobs. The situation changed after those on the front lines returned home and reclaimed their jobs. But the move sowed the seeds of the need for inclusion in the workplace, albeit (as some may argue) driven primarily by the capitalist high productivity-mass production model the US adopted. 

In 1961, responding to the raging civil rights movement and violent agitations by Black protesters across the country, President John F. Kennedy instituted the Committee on Equal Employment Opportunity and issued an Executive Order to the same effect which used the term "affirmative action" to refer to measures designed to achieve non-discrimination against blacks. In 1963, Kennedy proposed a civil rights bill to outlaw discrimination in places of accommodation and permitted the cutting off of public funds to institutions that practised discrimination among others. 

His successor President Lyndon Johnson issued another Executive Order in 1965 which mandated federal contractors to take affirmative action and ensure equality of employment opportunities to all without discrimination on the basis of race, religion and national origin. In 1968, gender was added to the protected categories that required affirmative action. 

These moves had a drastic impact on the inclusion of social, racial and sexual minorities in the US, especially black people and women who had historically been denied voting rights. However, despite the legal reforms safeguards, it took years for Black people in America to actually find safe spaces in public institutions. The disparity was distinctly visible in educational spaces and suburban neighbourhoods which remained predominantly white, well into the 70s despite the affirmative actions. 

Rights vs Merit 

The criticism against affirmative action is usually rooted in the fact that positive discrimination is also based on the same criteria that cause a certain community’s marginalisation. For instance, in a 1979 collection of essays titled Philosophical Perspectives on Affirmative Action published in the US, the author Kenneth W. Simons notes that the “weaker justification for affirmative action is that it is a permissible, not obligatory, means of accomplishing an important social end. Even the weak claim is problematic…for affirmative action allows the explicit use of racial criteria that have traditionally been considered obnoxious”. Mahatma Gandhi’s objections against separate electorates for depressed classes stemmed from such a thesis. 

The second argument against preferential treatment even if it is for meeting social ends is unfair to merit. This argument reverberates through the anti-reservation narratives in India which state that not all Dalits benefitting from the reservation system are discriminated against and that not all “upper castes” are enjoying the benefits of the caste system. Merit is also a consistent question in educational and academic spaces where “general” quota students/employees often denigrate those inducted via SC/ST reservations as “inferior” in terms of intellectual quality or skills.

An answer to the merit-based critique of reservation appeared in Judith Jarvis Thomson’s work titled ‘Preferential Hiring’ where she speaks of “programs that prefer minorities or women to equally qualified white male applicants”. Speaking of the essay, Simons notes that “if there is no right to be preferred because of one's qualifications, if selection according to merit improves the efficiency of a program but not its fairness, then a preference for a minority or female candidate over a better qualified white male is no more unjust than a preference for an equally qualified minority or female candidate”. 

The argument helps one understand the question of fairness of affirmative action programs instead of their efficacy.