INTRODUCTION:

Affirmative action policies are intertwined with the concept of rights and both rights and policies cannot be seen in isolation from the other. One thing also becomes quite apparent, i.e. rights have become a pawn in the hands of ‘all’, be it the supporters or opponents of the policies. We cannot solely base our arguments on the basis of rights while dealing with the affirmative action programs, Rudolph C Heredia, states in the context of minority rights, “That it cannot be resolved on the basis of individual rights alone, as it involves institutional biases and not only personal ones”,¹ this can be made more clear by the example of caste,, which as an institution had created enough of problems as had race in America. Institutional biases where there are wide disparities between groups, and a particular section continues to bear the brunt, needs some action which is beyond the verbal rhetoric over rights. This article will try to bring out the latent but nevertheless very salient aspects, which cannot be ignored when discussing rights vis-a-vis affirmative action policies. The prime question I would like to answer is ‘Are rights to be seen in watertight sense when discussing affirmative action’. My take on this is that rights need to be seen and studied, keeping in sight a lot of other aspects, when discussing affirmative action policies. Since they are to be actualized and exercised in the society, which is regulated by the state authorities, thus we need to have an inclusive take on the rights issue. What follows is an emphasis on some of those areas.

We need to keep a check and monitor the way in which we discuss rights. Since rights are not isolated from the social settings, we cannot overlook the state and the other political and economic institutions; they all work in tandem so as to give life to consciously articulated rights. To see affirmative action policies solely through the rights prism has its own inherent implications.

Rights and policies both are interdependent on each other as the latter is framed to further the former,but the way in which the policies need to be implemented requires a careful process. Ronald Dworkin’s views become relevant here, his much celebrated rights thesis will highlight, why we need to ‘not’ see affirmative action policies solely as rights to be asserted. His theory conforms to both legal and moral order ².

Although he made distinction between principles and policies with the central focus on the legal system, but that can be applied in a generalized context as well. In his rights thesis he has made a sharp distinction between principles and policies.According to Livingston Baker, (contemplating on Dworkin’s work) the meaning of the principles-policies distinction has been explained by Dworkin as he writes:

“I call a policy that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community (though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change). I call a principle, a standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimensions of morality³.

According to Baker, an argument of policy is an argument to maximize the realization of a goal, that has been selected for its intrinsic value, on the other hand an argument of principle focuses on moral considerations independent of their effect on any desired goal ⁴.By virtue of his principle –policy distinction, Dworkin developed his rights thesis, according to him as he writes in his influential work Taking Rights Seriously(1977:92)

“It follows from the definition of a right that it cannot be outweighed by all social goals. We might, for simplicity, stipulate not to call any political aim a right unless it has certain threshold weight against collective goals in general; unless for example it cannot be defeated by appeal to any of the ordinary routine goals of political administration, but only by a goal of special urgency ⁵.

Seen from this perspective what follows is that we can clearly conclude that, the rights or human rights directly come under the domain of principles which exists irrespective of their meeting any goal, or they exist as an extension of morality, whereas the positive discrimination or affirmative action needs to be grouped under policy as it is initiated with the intent of emancipating the poor lot and is based on and directed towards a goal. An example based on this line of argument will make it more apparent. A case quoted by Dworkin in his book Taking Rights seriously (1977:223-225) will make the statement clear, a Jew named De Funis applied to the University of Washington Law School, he was rejected although his test scores and college grades were in tune with the requirements, and he would have got the seat, had he been a minority. De Funis challenged Washington University’s criteria on the basis of a moral argument and was later admitted as well, but this brought to light the loopholes of the University policies to bridge the majority –minority gap. A serious lapse in the policy articulation was seen and the need to bring changes in the policy were felt (Dworkin 1977:92).Dworkin writes (1977:225) “De Funis has no constitutional right that the state provide him a legal education of a certain quality. His rights would not be violated if his state did not have a law school at all, or if it had a law school with so few places that he could not win one on intellectual merit. Not because applicants have a right to be judged in that way, but because it is reasonable to think that the community as a whole is better off if its lawyers are intelligent. That, is intellectual standards are justified not because they reward the clever, but because they seem to serve a useful social policy”(Dworkin:1977:92 Well this does not give a supreme position to policy matters over rights, as there are some vital rights based on morally salient value such as equality which cannot be compromised upon, as Dworkin mentions the right to be treated as an equal which are to be given paramount importance. At times, but that means if for some reason that gets violated, it would be considered non-violated if the total gain of the community outweighs that individual loss. Here one aspect comes out that when a policy tries to transgress the rights of some then that is justified if it leads to the aggregate wellbeing. Absoluteness of rights needs to be smoothed by morally justified riders(Dworkin1977:92)

Dworkin further elaborates on his claims, and in reply to Greenawalt’s attack he states –“What are arguments of principle and arguments of policy, and what is the difference? Arguments of principle attempt to justify a political decision that benefits some person or group by showing that the person or group has a right to the benefit. Arguments of policy attempt to justify a decision by showing that in spite of the fact that those who are benefited do not have a right to the benefit. Providing the benefit will advance a collective goal of the political community. It s important not to confuse this distinction, between arguments of principle and arguments of policy, with a different distinction, which s the distinction between the consequentialist and non consequentialist theories of rights(Dworkin:1977:294). Baker expressing Regan’s view on policy states that when policy is seen from rights angle, it does not get the same value as is given to rights that function as trump rights, such as freedom of expression ⁶. For Dworkin, rights are in the form of trumps. According to Dworkin (1977: xi): “Individual rights are political trumps held by the individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.”

According to Robin West, the trump tag, does not accord an arbitrary status to rights and does not overlooks the peculiarities involved in exercising rights. He further states, that thinking of individual rights as trumps against collective goals should be avoided.That would not imply a wholesale abandonment of rights, rather where the collective goal is a superior one in the moral scale there collective goal trumps the rights ⁷.

Also to elaborate further on what could be the possibly valid reasons for not treating policies solely as a matter of rights, the following explanation highlights that.

DISADVANTAGES OF OVEREMPHASIS ON RIGHTS BASED APPROACH:

Rights tend to act as ambiguous and complex entities as well, the debate surrounding rights have decreased the importance that we need to pay to the numerous issues which are at stake in the society and need our immediate attention. This is what Mary Ann Glendon writes in her book ‘RIGHTS TALK’ that in this regard there has been an impoverishment of our political discourse across the political spectrum, there is a growing realization that it has become increasingly difficult even to define critical questions, let alone debate and resolve them. She has categorically pointed out that rights tend to create obstacles rather than act as a positive feature in the society; she states that the prominence of certain kinds of rights talk in our political discussions is both a symptom of, and a contributing factor to disorder in the body politic^8.. No doubt that with the increasing heterogeneity, it has become quite difficult to convincingly articulate common values by reference to a shared history, religion or cultural tradition(Glendon1991:3)

Glendon with regard to keeping in mind the United States of America writes that the marked increase in the assertion of rights-based claims, beginning with the civil rights movement of the 1950’s and 1960’s and the parallel increase in recognition of those claims in the courts, are sometimes described as rights revolution. If there is any justification for using the overworked word ‘revolution’ in connection with these developments, it is not that they have eliminated the ills at which they were aimed. Indeed, the progress that has been made, substantial as it is, serves also to heighten our awareness of how deep, stubborn and complex are the nation’s problems of social justice.What do seem revolutionary about the rights related developments of the past three decades are the transformations they have produced in the roles of courts and judges, and in the way we now think and speak about major public issues(Glendon1991:4)

The example of Civil Rights Movement inspired many other victims of injustice to get on board. In the 1970’s the concerns of women crystallized around the idea of equal rights.Soon the related causes such as preventing the abuse and neglect of children, improving the treatment of the mentally and physically disabled, eliminating discrimination based on lifestyle, protecting consumers from sharp practice, preventing consumers from sharp practices, preventing cruelty to animals and safeguarding the environment, began to articulate their concerns in terms of rights.(Glendon1991:7)

Rights in the hands of individuals are turning out to be wrapped in ‘absoluteness’, the hue and cry which often accompanies protests and revolts is symbolic of how the claimants perceive rights to be of unrestricted nature as their valuable and priceless, but it is not so, they have to be flexible enough to accommodate special provisions, but that also does not imply that the basic rights are compromised in the process. What are the flip sides of attaching the quality of ‘absoluteness’ to the rights an individual possesses.

Mary Ann (1991:14) answers this; she says “our rights talk, in its absoluteness, promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead towards consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations(ibid). In its relentless individualism, it fosters a climate that is inhospitable to society’s losers and that systematically disadvantages, caretakers and dependents, young and old.In its neglect of civil society it undermines the principal seedbeds of civic and personal virtue. In its insularity, it shuts out potentially important aids to the process of self correcting learning. All of these traits promote mere assertion over reason giving (Glendon1991:14)

Rights tend to create a responsibility deficit, although in the last couple of years we have succeeded in raising our voices for the assertion of our rights, but what about the corresponding responsibilities. Shirking of responsibilities will lead to a shrinking of growth and divisive tendencies will become dominant. Responsibility tends to make the authorities in charge more responsive to the needs of people. To make the statement clear, Glendon writes (1991:76), “The American rights dialect is distinguished not only by what we say and how we say it, but also by what we leave unsaid. Each day’s newspapers, radio broadcasts, and television programs attest to our tendency to speak of whatever is most important to us in terms of rights, and to our predilection for overstating the absoluteness of the rights we claim. Our habitual silences concerning responsibilities are more apt to remain unnoticed (Glendon1991:76)

In the case of affirmative action programmes keeping aside the debate surrounding which groups are and which are not responsible, the primary responsibility is of the state which is the sole moral agency by virtue of being the custodian of individual rights, and it is the prime area on which the state is to be morally evaluated that whether it sees to the fact that enough resources are there and that conditions are proper for the execution of welfare plans and policies. Glendon states that in order to make this virtue of moral responsibility more strong and forceful, it would be better to accord it a legal status(Glendon1991:78)

THERE IS A NEED TO BALANCE OUT RIGHTS AND POLICIES:

Rights cannot be completely separated from the policies, infact the policies themselves are an endeavor to somewhat help the minorities actualize their rights. The problem creeps in when the values which guide the policies are seen as some sort of a competitive opportunity, as had been the conflict over the reservation issue or the affirmative action policies.What is important is to try to create proper opportunities for the most deserving out of the lot. One of the most difficult situation which needs to be dealt here is to break the monotony which had been created because of the status quo, to make it clear Harold C. Heredia’s argument made in his book, Taking Sides (2012:310) becomes relevant, he states “To pursue reserved quotas and minority rights against the common good betrays the very purpose of such preferential treatment. Caste quotas become a quest for upward social mobility; the creamy layer of recipient communities uses them for its own partisan benefit, to the exclusion of others more disadvantaged and more deserving in their own caste communities. Minority rights consolidate the traditional elites and religious leaders of these communities, who often become fundamentalist to preserve the status quo against change that is perceived as untoward.”This tendency over the years had render the policies as ineffective and rather it has taken the form of an unending and ugly political struggle. Heredia (2012 :311)further states “preferential policies,when they consolidate a creamy layer of the more advantaged among the reserved quotas for Dalits and adivasis and women,do not empower the vast majority of people trapped at the bottom of the quota,who are then left outside the charmed circle of this privileged advancement”. Over the years the proliferation of groups demanding reservations and affirmative action has cropped up significantly. Earlier the struggle was based on the pretext that the minorities are being exploited by the majority groups but now the groups who are demanding the reservations constitute the majority side. This tilt in the balance is somewhat detrimental as the demanding majority is heavily accounting for the struggle over reservations. The relatively better off among the beneficiaries are able to pressurize the authorities on the pretext of rights and are able to avail the opportunities and the most deserving and those in dire need are unable to vocally demand which is rightfully meant for them. This demands an overhaul of the how these demands are being articulated and implemented and a proper appraisal of whether the individuals within the targeted groups are able to benefit as a whole. To further this cause the role of the state creeps in.

ROLE OF STATE:

These rights which are being debated upon are to be realized in the state and it’s the state which needs to insure that justice should prevail irrespective of differences. Affirmative action policies are an extension of the need for justice to prevail, and hence that accords it a higher moral pedestal, but can just one initiative on the part of the state authorities create universal appeal? And will justice prevail uniformly? Well this would somewhat be a very utopia stricken imagination, because the reality takes us into an altogether different but the actual prevailing situation.

Marvin W.Mikesell and Alexander B.Murphy, in their work regarding the framework for comparative study of minority group aspirations, state that “ it is very difficult to make ‘generalizations as far as minorities are concerned. Generalisation is difficult because of the great differences in the dynamics of group identity and interaction from case to case. Most attempts to deal with inter group relations and related policies in comparative terms are unsatisfactory because they are premised on assumptions about the nature of ethnicity and nationalism that do not include the adequate considerations of the changeable nature of these phenomena.They elaborate that a more promising starting point is the one common feature, that is shared by all minority group movements, is the expressed opposition to the established political and territorial order. This implies a focus on the discourse of demands advanced by minority group members, together with the shifts that occur in that discourse in response to government policies⁹

More often than not, the demands of the minorities get overpowered by the majority groups, and consciously or subconsciously what is affected is the liberty of the individuals, who then start questioning the very rationale behind the existence of the state and the society, and whether being a part of it is a farce or does it really imply some significant values. Here in comes the complexities of a rights based system which tells us that yes we have claims both against the society and the state, but these need not be imposed irrationally, or else we would we a witness to an era of self imposed anarchy, rather these claims need to be clothed in the language of reasonableness and pragmatism, before discussing about it, I would like to bring in my discussion the role of the state, which is the custodian of the rights of the individuals. The state assumes prime significance, when the question of governing a heterogeneous population is concerned.Since the well being of every individual is the duty of the state, hence protecting and facilitating the proper conditions for the realization of the rights of individuals is the ‘responsibility’ of the state.

Kate Raworth states that “when assessing the human rights, two major interests which are to be paid attention are, firstly, what is the ‘condition’ of the life of individuals and secondly by the ‘conduct’ of the state. The former is assessed by understanding the ‘rights’ which the individuals possess and had they been realized and the later is evaluated by the extent to which the state has fulfilled its obligations. Raworth further elaborates that, the need to identify the obligations of the state is to have a deeper understanding of the status of individual rights.¹⁰

The formal state obligations for each individual can be seen under two categories, the first are the three obligations of actions, which the state should perform they are as follows, firstly, respect, i.e. the state must not interfere directly with people realizing their rights. Second is to protect, i.e. the state must stop others from interfering with people’s rights and thirdly, the state should fulfill the obligation of building the legislation institutions and norms to realize the rights. The other aspect of state obligation according to Raworth includes the ‘process ‘aspect which should be incorporated by the state and includes ‘non discrimination’, the state should not discriminate in meeting its obligations. Secondly, it should aim for adequate progress i.e. progress must occur at a rate that shows commitment. Thirdly participation, i.e. people must be able to participate in realizing their rights, and fourthly, ‘effective remedy’ which means that there must be a remedy for violation of obligations (Raworth:Realizing Rights:2004)

The minorities get organized into groups in order to protect and promote the interest of their group which has been overlooked.There is a need to go back to the individualist conception of the state as given by Locke. He categorically stated in his Second Treatise as Mohr elaborates “that the government originates from a need for security.People naturally exists outside of organized security in the state of nature. Although every person has natural rights in the state of nature, these rights cannot be consistently protected without a commonly recognized judge ¹¹. Everyone has the right to seek reparations for damages and to defend his/her health and property. However since people sometimes fail to use reason properly on account of self interest and emotions, they cannot be trusted to always judge calmly and reasonably, especially during times when injustice have been done to them. This might lead them to take more reparations than they should for the injustices that were done to them (Mohr:Aporia:vol 16,2005) Also some people in the state of nature might not be strong enough to take the proper reparations, this leads to a great lack of security and as a result many injustices occur for which improper reparations are made.People determine that these unpunished injustices can be avoided if common laws are created and enforced by an organized group. Additionally foreign invasion threatens those in the state of nature, without an organized military and also without the protection of a ‘group ‘and thus the individuals are at a great risk of being invaded by the other organized groups (Mohr:Aporia:vol 16,2005) An effective defense against attack can only be implemented by a community. So knowing that security is in their best interests, people congregate in order to form a government. This arrangement is carried out for the mutual benefit of protection against interpersonal conflict and foreign invasion. Thus in Locke’s theory people are driven into society from the state of nature out of a need for security. Consent is given and by entering such a territory the individuals benefit from the protection of the society’s government and are obliged to reciprocate by temporarily relinquishing their rights (Mohr:Aporia:vol 16,2005)

However people must also be free to leave a society since forcing them to stay would force them to laws without their consent, something that Locke considers to be unjust. It’s mandatory to obey the government as per Locke, which is ironically the rule of the ‘majority’, which is not the ideal, but the only way by which a government can function. This results in the individual becoming part of a community, “one body”, with a power to act as one body which is only by the will and determination of the majority (Mohr:Aporia:vol 16,2005)Majority decisions in a community become law, but these laws have legitimacy only if they do not infringe the individual rights. Keeping the contemporary situation in this perspective, the political, social and technological situation in Locke’s time was very different from the contemporary times, but today the frustration and the simmering feeling of being neglected which had been over the years developing within the minorities is gaining alarming proportions. The growing demands by the minority groups are what in Lockes’ terminology are called as ‘rebellion’. If the individualists can determine that the governments’ laws are arbitrary or are infringing on their inalienable rights, Locke clearly states that they would be justified in inciting a revolution where, the individual grievances constitute justifiable grounds for the rebellion (Mohr:Aporia:vol 16,2005)

THE NEED FOR ADEQUATE MINORITY REPRESENTATION:

One very important reason behind the minority rights violation is that minorities are not properly represented, there is absence of equality of representation also. Sowell(2004:6) states that there is improper representation of different groups in different occupations too. Representation of groups which is taken as a norm is difficult or impossible to find anywhere, while the uneven representation that is regarded a special deviation to be corrected is pervasive across the most disparate societies. Sowell (2004:7) writes that people differ and have for centuries. It is hard to imagine how they could not differ given the enormous range of differing historical, cultural, geographic, demographic and other factors shaping the particular skills, habits and attitudes of different groups. Any temporary policy whose duration is defined by the goal of achieving something that has never been achieved before anywhere in the world, could more fittingly be characterized as eternal.

To highlight the importance of minority representation and why it cannot be overlooked, A.G Noorani mentions in his article “Representing Minorities”, that the highly respected minority group in London has produced a most instructive report entitled, ‘Electoral system and the protection and participation of minorities’ by Andrew Reynolds, based on a survey of over 30 countries. The report focuses on the electoral system, the way votes are translated into seats, and its impact upon the reservation of minority communities. It begins with discussions of the importance of minority representation for minority inclusion and protection, and whether it is better for minorities to self identify or have their rights assigned on the basis of a legal predefinition of their status. It outlines the menu of electoral system options and their consequences and the process of electoral system design and reform. Data is presented on the presence of minority representatives around the world, and the prevalence of reserved seats for communal/minority groups in national parliaments. Next follows a discussion of the impact of electoral systems, not just on the numbers of minority members elected but how the system can mould elite behaviors and levels of inclusion and accommodation. Finally it makes a number of recommendations about good practice when it comes to minority representation and electoral system design¹². Two key points emerge from the study, firstly that when designing an appropriate electoral system that addresses the needs of a minority, the case context determines all. The capacity of minority representatives to gain office and influence under various electoral systems is conditioned by a host of historical, demographic and communal factors. The recommendations found at the end of this report offer the beginnings of a design approach that takes into account such moulding factors. The second crucial point is that adequate minority representation goes beyond minority members being included in legislatures. Minority rights are also dependent upon how legitimate these members of parliament are as representatives of minority communities and whether they have power and influence beyond their (often) small presence and numbers(Noorani :EPW 2007:175)

Hence from the above report one can conclude that the prima facie target as far as any initiative for the representation of the minorities is concerned, should be that, each minority group should get fair representation, secondly it should be ensured that each minority group will cooperate and that it appeals to nationalism will not be unduly rewarded. Thirdly, the designers of electoral systems must have a clear understanding of the situation of all minorities (ethnic/national, religious and linguistic) in the country before beginning the redesign. This should include the numbers of the minorities; their geographical spread, levels of literacy (with particular emphasis on minority women) and languages spoken(Noorani :EPW 2007:175)

To reflect more on the nature of representation, I would like to bring in the views of Zoya Hasan, with regard to India she states that, interest in patterns of political representation and strategies for social exclusion has exploded both in India and around the world. The past few years have witnessed an upsurge of interest in strategies of inclusion ranging from affirmative action to mandatory reservation. In a democracy there had been an emergence of consensus that within democratic system one social group should not ‘monopolise’ political power or governance ¹³. This has led to awareness that creating political systems that address the needs of various groups especially those that are marginalized on the basis of race, religion, and ethnic background, is necessary for equity, fairness and political stability.(Hasan2009:9) Why has there been a focus on the process of inclusion. Two major reasons which she gives is, firstly the increased presence of historically excluded groups is a sign of inclusiveness of public institutions, and this, in turn is an important marker of the fairness of democratic regimes, and secondly, greater inclusion of the excluded groups in the decision making institutions would provide these bodies with the presence of people who can articulate the interests of these sections, which may otherwise be neglected by default.(Hasan2009:9)

Will providing affirmative action incentive would ameliorate the targeted groups? Zoya Hasan (2009:3) commenting on the Indian situation states, that India which is undeniably one of the most unequal societies is also one of the few countries in the post colonial world, that took up the challenge of building an inclusive democracy in a highly diverse, multicultural, multilingual and multi religious society, but has it really succeeded? The idea that India has succeeded in creating public spaces that are equally shared by members of diverse communities of that various disadvantaged and deprived groups have access to and can actively participate in governance, is a distant one because the trend towards inclusion and empowerment does not embrace all groups equally (Hasan2009:9) Over the years, preferential policies enacted with considerable support have proven controversial. Such policies are contentious because there is disagreement over who should be targeted, why they should be targeted and because the list of targeted groups is getting bigger. Zoya Hasan further elaborates that some of the most important political debates have related to the rights of the minorities and to the question of state’s approach towards them. It is the professed ability of the nation state to deal with minorities that has often raised serious question with regard to the fairness of these policies. Yet, even with constitutional safeguards for minorities, large sections of them have been feeling a sense of marginalization and alienation from nation state.(Hasan2009:9) There is a clear imbalance seen in the status of minorities. Taking the example of the Muslim communities in India, who are totally sidelined, and are reeling under the consequence of a non holistic affirmative action policy. They are not covered under the affirmative action policies on the grounds of restoring communal harmony, Muslims along with the scheduled castes and the scheduled tribes are among the most deprived groups, but India’s affirmative action policies are yet to take this social reality into account (Hasan:2009:159-161)..With low levels of education and no affirmative action in the sphere of public employment, Muslims are mostly in self employment. Although they are a distant third compared to the upper and backward castes Hindus, they are overrepresented in self employment, given that they are a smaller proportion of the population. Though Muslims have a share of 13.4 % in the country’s population, their share in the government jobs is a mere 4.9%.The situation is conceivably worse in the private sector (Hasan:2009:159-161).. This makes the fact quite evident that the policies need to reinvent themselves and be more inclusive, before that it becomes important to bring in the discussion the institutions, under the shelter of which the policies are supervised by the office bearers in the formal institutions and by other individuals in the non formal ones.

The policies which we are discussing in the context of whether their assertion as rights would prove any better for the depressed lot, seems to be inextricably linked with the institutional structure of the society, which render the functioning of the system, where the interplay of the policies and the institutionalization of inequalities takes place. As far as the state is concerned, it’s composed of the whole gamut of institutional structure both formal and informal structure which constitute it. Andre Beteille, (though sounding India centric) with regard to institutional well being states that the social and cultural changes of the last hundred years have been associated with the emergence and growth of administrative, educational, scientific, medical, financial and other institutions of a public or semi public character that are either completely new or so different from their traditional counterparts as to count effectively as new. These institutions need our utmost attention for it is upon them that we can count for our policies¹⁴. Beteille focusing on India elaborates that, the universities; hospitals, laboratories, banks, and bureaus have all become an important part of the modernization of India. Today the disagreement is not so much about the value of these modern institutions as about the criteria by which access to positions of respect and responsibility in them should be regulated. Beteille writes, it’s a sociological truism that all institutions do not work in the same way; each has its own rules and requirements, its own structure of rights and obligations, its own internal culture. The structure of rights and obligations that governs a joint family would not be appropriate to a science laboratory, and the culture of a village panchayat would not be appropriate to a university. We all have an intuitive sense of well being of individuals, and that needs to be used when speaking about the well being of institutions, which have conditions of well being that differs from one type to another. These conditions can hardly be specified with the clarity and precision of a scientific formula (Beteille:EPW1991:591-599). The individuals who run and manage these institutions are responsible to make sure that the policies are able to achieve their goals and that justice prevails.

For Rawls (1971: 7) “the primary subject of justice is the basic structure of the society, or more exactly the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By major institutions he referred to the political constitution and the principal economic and social arrangements. Thus the legal protection of freedom of thought and liberty of conscience, competitive markets, private property in the means of production, and the monogamous families are examples of major social institutions. These institutions define men’s rights and duties and also influence their life prospects, what they can expect to be and how well they can hope to do so”. To ensure that the rights of the individuals are secured, it’s imperative that proper and balanced institutions are in operation. Rawls (1971:275) states that it is necessary to set the social and economic process within the surroundings of suitable political and legal institutions. Without an appropriate scheme of these background institutions the outcome of the process will not be just.

The institutions, be they the formal institutions or the very basic informal, but fundamental institutions, they at times tend to turn into a rigid mould and inhibit the individual growth and socialization, which tends to contribute to the apparent backwardness of some groups, hence the very need to have affirmative action becomes imperative so as to counter the impact of such institutions. The non beneficiaries should have the wisdom to acknowledge the seemingly dim and bleak situation of these backward groups, and give a thought to their views before initiating a rhetoric of their own ‘rights’ being violated.

For the state to enforce its prima facie responsibilities, it needs the cooperation of its constituent elements its citizens, the members of the organic whole, or to put in simple words the claims which the minority groups have against the society.

CLAIMS OF INDIVIDUALS AGAINST SOCIETY:

It is now clear that when the issue of rights will get attached to the affirmative action policies it will open door for various strands which may take the shape of open ended debates, but that kept aside, the one aspect which endows the moral duty on the society is to uphold the dignity of the individual, which is the latent goal of all the furore which surrounds the debate. The neglected sections need recognition and acceptance in the society, in order to have a pure democratic order in any state it’s imperative that the voice of every individual be heard. There needs to be the prevalence of a healthy relationship between the state institutions and society.

Glendon (1991:118) in order to reinforce the importance of society quotes Emile Durkheim; she states that Emile Durkheim’s concern was less for the political than for the social and personal consequences of the decline of what he called “secondary groups”. Durkheim writes “Collective activity is always too complex to be able to be expressed through the state.Moreover the state is too remote from individuals; its relations with them too external and intermittent to penetrate deeply into individual consciences and socialize them within. Where the state is the only environment in which men can live communal lives, they inevitably lose contact, become detached and thus society disintegrates¹⁵. A nation can be maintained only if, between the state and the individual, there is intercalated a whole series of secondary groups near enough to the individuals to attract them strongly in their sphere of action and drag them, in this way, into the general torrent of social life”(Glendon1991:118). Hence the importance of society cannot be overlooked in ensuring the harmony among various groups. One cannot deny the fact that the rights issue is a major one and hence proper policy changes should be made so that in the policies is not mere farce claims.

RIGHTS, DUTIES and TOLERATION:

The need to give normative significance to duties becomes important no matter from which ideological bent we try to debate the rights approach. We need to be very clear that no individual will ever be comfortable in renouncing his/her rights, here the Hobbessian explanation of selfish human nature can be seen very clearly, but no later a need is felt where peaceful coexistence of one and all is concerned.Hans Kelsen (1945, 2009:85) writes, “In as much as the right of one individual is possible only in relation to the duty of another, all rights are relative rights”. To make it clear, one cannot think of ushering in a near to egalitarian society, if the pressure is persistently on rights, there is a kind of mental transformation needed so that some realize it as a part of their duty, to ensure that the rights of minorities are fully exercised. The word duty speaks of some commitment either to one’s self or to family or to the society. A duty could either be on account of some compulsion or may be natural or inherent. A mother due to her natural love and affection with the child has a moral duty to take care of the child. In our society, people from different strata are present and some are the victims of backwardness, hence the duty aspect of the state creeps in. The state has to ensure that the constitutional or legal provisions may not remain dormant and for name sake only, and hence from time to time the government and state machinery is reminded of its duties towards the backward classes.

Duty is expected on the part of fellow human beings as well, and the prime duty is to inculcate the virtue of toleration. There is a need of mind churning so that an internalization of value of tolerance takes place, which will render the hostility towards affirmative action as futile. What is the importance of toleration?The need for that is because it is to be realized that, the betterment of minorities will act in favour of the collective benefit for the society as a whole, for example, the discrimination of minorities negatively affects the peace and prosperity of a country, and it leads to violence, killings, extortions and all, for instance the Maoist resurgency and attacks are a classic example of not meeting the needs of the tribal and this has culminated in brutal killings. Nagel (1991:54) writes on toleration that “the most intellectually difficult problem regarding an acceptable partition of motives arises not from conflicts of interests, but from conflicts over what is truly valuable. Members of a society all motivated by an impartial regard for one another will be led into conflict, by that very motive if they disagree about what the good life consists in, hence what they should want they should want impartially for everyone”. Although to have a uniformity of moral values is inconsistent with reality. The primary and secondary socialization of an individual greatly influences his outlook and thus conflict of views is inevitable. Some clash of views and disagreements are resolvable but there are some disagreements so deep and acute that it is not possible to devise a method of fighting them out politically, says Nagel. One cannot always have justifications for why his/her belief is sacrosanct. Nobody would like to be a part of the group, which had been subjected to crude discrimination, hence if the state or government is trying to do something by virtue of enacting a policy, we should exercise constraint in voicing our discontent.

THE END IS JUSTICE: REDISTRIBUTION:

The one aspect which is the guiding feature behind all the initiatives and activities regarding the beneficiaries of affirmative action policies is the need for justice to prevail. We cannot do away with the affirmative action policies, now what comes next is how to regulate the way in which they manifest? To say that the state is the sole guardian and protector of individual rights is no doubt like reinforcing reality, but that needs to be seen in the context as well. Even in the Indian context the directives to the state had been put under the non justifiable part, so that the state is not put in a crippled situation. This is to bring out the fact that to simply state that the state should generate resources and opportunities in a prompt manner will be to run away from reality into a never land.Redistribution of resources has to be done so as to do away with the anomaly of uneven distributional patterns. In a single country composed of many state there could be wide disparity in the way natural resources are distributed, the nature and trend of agricultural practices the accessibility to education and other factors. Those at the receiving end should be provided with resources and means and there should be an understanding which backs the redistribution process. In theory and in practice the redistribution strategy needs to be fine tuned. Various information and data collecting mechanisms, tools like survey reports and interviews should be used to prepare a road map and a line of action, so that redistribution proper is done. An area wise analysis would help to show which resource needs to be provided, the deficiencies will be rectified in a proper way. The process of redistribution demands a carefully monitored implementation mechanism. Faulty lines need to be repaired.by curbing bureaucratic corruption and breaking harmful alliances.Finally an educated and active citizenry which keeps the authorities at its toes will make the ends achievable.

REFERENCES:

1. Rudolph C.Heredia, “Taking Sides :Reservation Quotas and Minority Rights In India “ (Penguin Books, 2012) pp 165

2. Livingston Baker, “Dworkin’s Rights Thesis :Implications For The Relationship Between The Legal Order and The Moral Order” Brigham Young University Law Review, pp 837-856

3. ibid, Baker elaborating on Dworkin also Ronald Dworkin, “Taking Rights Seriously”(1977) pp 22

4. ibid

5. Ronald Dworkin, “Taking Rights Seriously” (1977) pp92

6. Livingston Baker, “Dworkin’s Rights Thesis : Implications For The Relationship Between The Legal Order and The Moral Order” Brigham Young University Law Review, pp 837-856

7. Robin West, “Rights, Harms and Duties :A Response To Justice For Hedgehogs” Boston University Law Review (vol.90.819)

8. Mary An Glendon, “Rights Talk: The Impoverishment Of Political Discourse” (The Free Press, 1991) prefaceIX TO XIII

9. arvin W.Mikesell and Alexander B.Murphy, in, “A Framework For Comparative Study Of Minority Groups Aspirations, ” Annals Of The Association Of American Geographers(Vol 81, No 4, Dec1991) pp 581-604

10. Kate Raworth, “Realising Rights :A Framework For Civil Society Monitoring”, (Oxfam HD Training Course, 2004)

11. Tyson Mohr, “Locke and The Contemporary Situation” Aporia :A Journal Of Philosophy (Vol 16, number 2-2005) Mohr has largely elaborated on Locke’s views as has been stated in the Second treatise.

12. A.G Noorani, “Representing Minorities” Economic and Political Weekly (Jan, 2007) pp 175

13. Zoya Hasan, “Politics Of Inclusion: Castes, Minorities and Affirmative Action” Oxford University Press (2009) pp 9

14. 14. Andre Beteille, “ Distributive Justice and Institutional Well Being” Economic and Political Well Being” Economic and Political Weekly (March, 1991) pp 591-599

15. Mary Ann Glendon, “Rights Talk :The Impoverishment Of Political Discourse” The Free Press (1991) pg 118

Received on 08.05.2017 Modified on 18.05.2017

Int. J. Rev. and Res. Social Sci. 2017; 5(2): 63-72.

DOI: 10.5958/2454-2687.2017.00007.7