AFFIRMATIVE ACTION FROM A SOCIOLOGICAL AND

COMPARATIVE PERSPECTIVE

Gérard Toffin

A paper presented at an international seminar on

"Constitutionalism and Diversity in Nepal"
Organized by Centre for Nepal and Asian Studies, TU
in collaboration with MIDEA Project and ESP-Nepal
22-24 August 2007
Kathmandu, Nepal

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DRAFT

AFFIRMATIVE ACTION FROM A SOCIOLOGICAL AND

COMPARATIVE PERSPECTIVE

Gérard Toffin

My paper concerns affirmative action that is reservation system, or positive

discrimination. I am interested here to compare such social devices in two countries: France
and India, and to ponder the lessons which can be drawn for contemporary Nepal.
France and India have been particularly chosen here because they represent two
opposing ways of dealing with inequalities in democratic countries. In France, positive
discrimination in favour of marginalised groups is a new concept, historically alien to the
political culture of the country. It is so far accepted with some difficulty.
By contrast, in India, the logic of reservations already goes back a long way, in fact to
the beginning of the 20th century, before Independence. It is a fundamental element of the
political system inscribed in the 1950 Constitution. It is chiefly seen as a way of moderation
the harshness of the caste system.
In both cases, however, the measures to be taken are at present the subject of bitter
contention.
Let me first present some ideas and facts about France:
France
The French model of democracy emphasizes individual rights and is firmly committed
to the notion of the unique individual. The person exists as a separate unique entity.
Theoretically, to belong to a democratic country like France progressively entails ridding
oneself of the sense of belonging to any cultural or ethnic group. It focuses on the individual
emancipation of the citizen from all ascribed groups and community pressure, familial,
ethnic, religious, social, or geographical links. This has been the basic dogma of the French
Revolution and its political values for nearly two centuries.
The political order established during the Revolution, and the following decades is
marked by a strong state centralism. The linguistic and cultural diversity of the regions
making up France in pre-revolutionary times was assimilated to the “Old regime”,
hierarchical and oppressive. Old customs were abolished. Following the spirit of the
Enlightenment, the revolutionary leaders claim that reason should guide all human affairs.
French was imposed as the national language to the detriment of other local or regional
languages.
In this context, it is constitutionally forbidden to set up any positive provisions for a
group of persons on the basis of their origins, whether ethnic or geographical. On 9th May
1991, the Constitutional Council rejected a law proposed by the government in favour of the
inhabitants of the French island of Corsica (in which exists a strong separatist movement). It
was rejected because the expression “Corsican people” figured in the text. French people, so
the statements says, are one and non-divisible, with not distinction of religion, race or region.
Similarly, any job advertisement specifically aimed at a young boy or girl recently
immigrated to France is forbidden by law. Such measures, it is said, are themselves
discriminatory. They contradict the universality of judicial laws. In March 2003, the

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Constitution was exceptionally revised to authorize the adoption of measures favouring job
opportunities and the protection of private land for the inhabitants of overseas départements
and territories (ex-French colonies). It was a subtle way of assisting the local, ex-colonised
populations, using a form of affirmative action.
Contrary to the United States, there are consequently no provisions for directly
improving the living conditions of ethnic minorities in France. Still today, it is forbidden to
collect data at the time of an official census on the ethnic or religious origins of citizens.
Nonetheless, the arrival of many immigrants from North Africa over the last decades has put
pressure on this Republican model inherited from the French Revolution. Since the 1990s,
these migrants, many of whom are Muslim, have been rejecting common Republican values
and have become progressively more demanding in preserving their own religion and its
symbols, even at school. Moreover, concentrating these populations that are poorly integrated
in French institutions and with few resources, in certain deprived suburbs around the
country’s large cities has created poverty ghettoes. These suburban territories are increasingly
characterised by social exclusion, a low rate of literacy, and unemployment. They are
inhabited by disadvantaged groups living on the margins of society.
To deal with such communitarian cultural demands, successive governments have set
up policies based not on the origin of these groups, but on the territories they inhabit. In 1981,
at a time when the Socialist Party was in power, Priority Education Zones (ZEP) were created
in these disadvantaged areas. The objective was to give more funding to segregated territories
in matters of employment and education through fiscal measures and additional teachers in
schools. Recently, in 2004, an another law implemented ‘Urban Sensitive Zones’ (ZUS)
which concerned 4 million persons, and within it, heavily underprivileged territories, (a total
of 85), were set up with several fiscal exemptions to encourage employment. The advantage
of this programme is that such exemptions are based on socio-economic criteria and not
directly on ethnic groups. Yet, the recent unrest in September 2005 in various suburbs
throughout France revealed that these measures are not sufficient to solve the problems. More
radical measures are needed, despite the opposition until very recently of the State’s highest
authorities which fear a communalization of politics.
The implementation in 2001 by the Institute of Political Studies, Paris, (IEP), a
prestigious autonomous institution, to reserve a small number of places for students from
Priority Zones (ZEP) without having to pass an entrance examination proved to be a more
polemical case. This device is however an exception. Up to now, no other Political Institute
outside Paris has followed this exemplary affirmative action.

India
In India, collective rights are accepted as a basic ingredient of democracy. The 1950
Constitution (in particular Articles 15.4, 16.4, and 46) explicitly provides reservations for two
categories of deprived and marginal groups: the scheduled castes (SCs) and the scheduled
tribes (STs). Presently, the privileges include the reservation of a fixed quota of vacancies
and promotions in Government employment, of seats in Parliament and State Assemblies, of
places in state-run educational institutions and scholarships, and of preferential loans for
starting businesses. Privileges are fixed in proportion to the respective percentage of these
populations
On the two first categories, SC and ST, I will say only a few words. The scheduled
castes (or dalits), the former “untouchables”, in India, comprise about 16 percent of the
population, around 165 million persons. The scheduled tribes (adivasi) make up 8.2 percent

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of the population (less than in Nepal) which amounts to over 84 million people. They are
made up of about 400 ethnic groups varying enormously in size, occupation, economic
conditions (like in Nepal), etc. Some are better-off, whereas others suffer from poverty.
It is the recent expansion of reservations to other categories of backward groups,
namely the OBCs (other backward classes) that has sparked major discord. This group
consists of a heterogeneous collection of castes which were low in the traditional hierarchy,
below the Brahman-Thakur-Vaishya higher groups, but above the line of untouchability.
They correspond more or less to the erstwhile varna order of the Shudras. They comprise
anything between 25 to 50 percent of the population1 and are even more diverse in their
economic and social standing than scheduled castes and tribes. [To compare with Nepal: in
the Tarai, covers a number of caste, among the Newars also, but very few within Parbatiya
castes, were intermediate castes are absent, a gap between Chetris and pani nachanlne jat]
This third category of classes appeared in politico-administrative vocabulary shortly
after Independence. In 1953, a national commission adopted caste as the primary criterion of
so-called backwardness. Thirty years later, in 1980, a new pan-Indian commission, known as
Mandal from the name of its president, established a new listing of 3,248 ‘communities’
(54.4 percent of the country’s population) and recommended reserving 27 percent of central
government civil service jobs for members of the OBCs, in addition to the existing 23 percent
quota for SCs and STs. The report was ignored until 1990 when V.P. Singh’s Janata
government, obviously politically motivated, suddenly announced plans to implement the
recommendations. This decision provoked a rush of protests, civil unrest, and even public
self-immolations of people belonging to the middle and upper castes who felt discriminated
by these provisions.
The extension of benefits to OBCs is presently the major bone of contention. Other
provisions are more or less accepted, except in some states, especially in North-East India,
where tribes constitute the majority of the population. The central government move in 2006
to introduce quotas for OBCs in elite institutions of higher and professional education
(popularly known as Mandal II) is especially controversial. OBC monopoly, it is feared, will
replace the upper-caste hegemony by a phenomenon of reverse discrimination.
A wide range of criticisms is addressed to reservations and their caste-based notions
of collective disabilities. There is opposition to the system first of all because it ignores merit
and prefers ascribed (by birth) advantages. Secondly, the list on which the OBCs is based
dates back to 1931. It is therefore inaccurate, outdated and it does not correspond to present-
day reality. A third widespread criticism states that positive discrimination does not benefit
the most disadvantaged members of the backward classes but the least disadvantaged among
them. Among OBCs, groups such as the Yadav, Kurmi, Jat, who can afford education and
who are landowning classes take considerable advantage of the system. On the contrary,
reservations have utterly failed to raise the vast majority of Dalits and tribals from poverty.
More fundamentally, caste in these welfare programmes is conflated with class, a confusion
which is highly mystifying.
Whatever the case may be, the logic of reservations has entailed a far-reaching
politicisation of caste and a communalization of politics. It has reinforced community
identities rather than sustaining a sense of common citizenship based on individual rights. It
has perpetuated caste in society rather than eliminating it. What is more: Castes (and tribes)

1
According to the 1990-2000 National sample Survey, around 36 percent of the
country’s population is defined as belonging to OBCs (quoted by Saksena 2007: 2497).
The proportion falls to 32 percent when excluding Muslim OBCs.

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have been transformed into self-focused pressure groups intending to maximize their own
interests at the expense of others. By a curious inversion of the ideal of upward social
mobility, caste and ethnic groups now compete to be defined as ‘backward’ in order to reap
the benefits of reservation. It is a total reversal of hierarchy. In Kalimpong and Sikkim, where
I recently carried out fieldwork, the Newars of Nepalese origin are now competing to be
included in the list of backward classes, in order to retain the same privileges as other
Nepalese immigrants belonging to various recognized ethnic groups, as well as the Lepchas,
the old autochthonous community of the region. The struggle for recognition and distinct
tribal entity is one of the hottest political issues in the region today. Claims inevitably
generate counterclaims.
Interestingly, OBCs, Dalits, Backwards and Forwards, and other caste-related
categories are presently entrenched at the very heart of political life in most parts of the
country, in total contradiction with the ambition of the founders of the Republic of India to
build a modern casteless society (Dr. Ambedkar).
It is worthy of note that reservation in India is not based on religion. Quotas have
always been prevented from being based on any other religion than Hinduism, even if it is not
stated explicitly. As is known, systems of personal law, regarding marriage, dowry, divorce,
parentage, inheritance, and so forth, continue to operate for Hindus, Muslims, Parsees, and
Christians (Larson 2001). This legal pluralism is responsive to the many varying
communities of faith in India and to the profoundly religious character of Indian society. But
the situation for religious minorities is somewhat bizarre. As such, Muslims for instance are
not allotted specific seats. In any case, the situation is extremely complex and differs from
state to state. Other religious communities are also concerned by this exclusion. Former
untouchable castes, for instance, cannot claim to be Buddhist if they want to retain their
scheduled tribe’s legal status. Upon conversion, they ceased to be scheduled and lost their
benefits if their conversion became known, unless the state governments made special
provisions for them as OBCs.
In any case, from a general viewpoint, India deals with diversity and difference in a
much more comprehensive manner than the somewhat Jacobin and centralistic French state.
The Indian culture of communitarian rights is to be viewed as an adaptation of democratic
values to a society where the liberal language of individual rights and equality has hardly
been used. Throughout South Asia, the notion of the unique individual is often encompassed
by holistic principles entrenched in the hierarchical orderings of group-based life.

Nepal
In spite of huge social and economic equalities, in many ways similar to India, and
due to the same reasons, currently Nepal has no reservation system. Like France, but for
different reasons. At first sight, this situation may be attributed to its archaic political culture
and social structure. However, the country experienced two periods of multiparty and
democratic regime: 1955-1960, and then 1990-2002, during which time no action towards
affirmative action was taken. The political parties have noticeably failed to respond to the
great disparities within the country. Since 1990, governments have recognized Nepalese
plural culture and the extreme diversity of its population. As a result, the 1991 census was the
first in a long time to provide data on caste and ethnic affiliation. But nothing has given this
pluralistic approach a comprehensive and legal reality and no compensations system has been
set up.

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 The inequalities prevailing in the country clearly call for the introduction of
compensatory provisions. Affirmative action is not only needed in the civil service, but also
in the elected political bodies, and in education, employment and health sectors. Besides
women, three groups face great difficulties: the ex-untouchables castes, some marginalized
ethnic groups and Muslims. In December 2004, a High Level Reservations Committee was
established under the chairmanship of the then Ministry of Finance with the mandate to
prepare a report with recommendations for affirmative action measures for women, Dalits
and Janajatis. Another commission also prepared a ‘road map’ for provisions in the civil
service: 20 percent would be allotted to women, 10 to Janajatis and five percent to Dalits, or
35 percent overall. Others measures for these identified backward groups were planned in the
education and health sectors by diverse boards. But hesitations on the part of the government,
and above all the weight of the past have paralysed the implementation of these
recommendations.

Conclusion
The central question at stake here is the compatibility of a democratic regime with
group rights and cultural pluralism. From a juridical point of view, reservation entails the
notion of different citizens, some of them having more rights or privileges than others. This
notion is substituted to the former universal equal citizenship.
There is substantial opposition between France and India in these matters. France is
deeply committed to the notion of the unique individual and has so far been reluctant to
inscribe any community rights in the law. In marked contrast, India has adopted an empirical
position which is very sensitive to social inclusion and diversity. Lastly, Nepal is still at the
very beginning of this process and is somewhat similar to France in this respect.
In many ways, Indian reservation system (and federalism) has been a response –one
may say also a concession- to a heterogeneous and profoundly hierarchical social structure
characterised by caste and strong regional cultures which in may ways encompass the
individual. France is facing more and more a somewhat similar situation with the increasing
presence of migrants from African and/or Muslim countries reluctant to adopt the republican
French model for themselves. Her individualistic premises are at present being challenged.
For social scientists, such processes of accommodation, mediation or
‘vernacularisation’ of politico-legal structures to different sociological and cultural contexts
are issues of major importance. It is urgent to ponder how democracy is reshaped in various
countries. In India, ‘casteism’ and ethnicization of politics due to the adoption of quota
systems are presently receiving renewed attention. Ronki Ram (2004: 347) pointed out how
caste identities of the Dalits of Punjab have been strengthened by their status of scheduled
caste over the last decades and how these persons have become victims of their new Dalit
consciousness. In the same way, Baruah (2005: 183-208) has made evident the striking
incoherencies of such a quota policy in the tribal populated areas of North-East India. One
cannot expect bureaucracies based on ethnic quotas to act with all the required effectiveness
and neutrality.
To come back to Nepal, I just want to draw two lessons from France and India. First,
it is necessary, I think, to infuse in the country as much cultural diversity as possible, in a
compatible way with a democratic system of equal citizenship. Second, to establish future
quotas not only on caste or tribe categories, but also on economic criteria. The poorest,
including Muslims who figure among the most disadvantaged groups, have to benefit from it,
and not the ‘creamy layers’ from so-called backward categories.