Subject: Law and Justice in a Globalizing World

LL.M Batch 2018-2019

A Project Report

PARTICULARISM

Submitted by

SURBHI KULKARNI (A005)

Under the Guidance of

PROF. SUNIL GEORGE

Specialization: Corporate Law.

Date: 15/09/2018

Signature:
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 ACKNOWLEDGEMENT

I would like to use this opportunity to thank my research mentor Prof. Sunil George for his
exemplary guidance, valuable feedback and constant encouragement throughout the duration of
the project. His valuable suggestions were of immense help throughout the project and his positive
criticism helped me polish my work and bring out a better end product.

I would also like to thank my parents for their suggestions and feedbacks on the rough drafts which
helped in bringing out a better drafted work.

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 TABLE OF CONTENTS

S. NO. CONTENTS PAGE NO.

1. INTRODUCTION
2. LIST OF CASES
3. LITERATURE REVIEW
4. PRESENT SCENARIO OF PARTICULARISM
5. INTRODUCTION
A. PARTICULARISM– IN GENERAL MEANING
B. FORMS OF PARTICULARISM
6. PARTICULARISM IN LAW- A LEGAL ANALYSIS
A. MORAL PARTICULARISM AND PARTICULARISM IN THE
LAW
B. PARTICULARISM IN INDIA
7. ROLE OF JUDICIARY
A. M.R. Balaji and Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439
B. State of Madras v. Smt. Champakan Dorairajan [1951] S.C.R. 525
8. CONCLUSION
9. THE WAY FORWARD
10. BIBLOGRAPHY

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 LIST OF CASES

➢ M.R. Balaji and Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439
➢ State of Madras v. Smt. Champakan Dorairajan [1951] S.C.R. 525

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Chapter -1 INTRODUCTION

Increased interests concerning issues of global justice has coincided with enhanced interest in the
place and value of nationalism. In this area global justice theorists have been concerned with a
range of important questions such as: Under what conditions should claims to national self-
determination is granted substantial weight? When should self-determination yield to concern for
protecting human rights? Are commitments to nationalism and global justice compatible? Is
genuine democracy only possible at the state level or are there robust forms of democracy that
are possible in more international form? How ideals of democracy are best incorporated into
defensible global institutional arrangements? Is world justice possible without a world state?

The progressively more widespread expression “global justice” marks an important shift in the
structure of our moral discourse. Traditionally, international relations were seen as sharply
distinct from the domain of domestic justice. The former focused on interactions among states,
while the latter evaluated the design of a national institutional order in light of its effects on its
individual participants.

Global Justice is defined as an issue in political philosophy arising from the concern about
unfairness. It is sometimes understood as a form of internationalism.

In the domain of global justice, theorists drill down through the state shell and inquire about what
justice among human beings consists in. Global justice inquiries take individual human beings as
of primary concern and seek to give an account of what fairness among such agents involves.
There are a range of actions that cut across states or involve different agents, relationships, and
structures that might be invisible in an inquiry seeking justice among states exclusively. Many
different kinds of interactions are not circumscribed by state membership and yet can importantly
affect human beings’ most fundamental interests, so asking the question about what individual
human beings owe one another often uncovers significant neglected features of relationships and
structures that are of normative concern. Global justice analyses are not precluded from yielding
state-level obligations; indeed, they typically do. However, they consider a wider array of possible
agents and organizations that might have duties as well.

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Global justice analyses are not precluded from yielding state-level obligations; indeed, they
typically do. However, they consider a wider array of possible agents and organizations that might
have duties as well.

The idea of “global justice” is controversial. Indeed, some theories deny altogether the
applicability of justice in the global realm. The list here is based on the different implications of
each concept on the existence, scope and assignment of global justice duties.

There are four main prepositions of Global Justice—Realism, Particularism, Nationalism and
Cosmopolitanism.

In this project the Second theoretical preposition of Global Justice namely; PARTCULARISM
will be dealt and discussed in depth.

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 Chapter -2 LITERATURE REVIEW

➢ Another Particularism: Reasons, Status and Defaults; Published by: Springer;

https://www.jstor.org/stable/41472581; Page Count: 17; ISSN NO. 1386-2820

Review- The author talks about the wide range of moral Particularism and as per his view
ethical generalism seems the best among both. The overall set of views can accommodate a
limited role for generalizations about categories of evidence, but not such as to rescue a
principled generalism. In particular, the version of Particularism defended here explains why
one ought not to accept the principled "holism".

➢ A Defense of a Particularist Research Program*

Review- The Author of the above said article talks about what makes some acts morally right
and others morally wrong? Utilitarianism and Kantianism are paradigmatic examples of such
attempts. In this paper the author is arguing that some of the most common objections to
Particularism result from a misconception of the nature of Particularism, and has offered a new
formulation of the view.

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 Chapter- 3 PRESENT STATE OF PARTICULARISM

Theories of global order are traceable back to two main paradigms, Particularism and
universalism, the first of them asserting that true global order is a chimaeras, the second affirming
that a worldwide political and legal system securing peace and human rights protection is both
desirable and feasible. Against this background, the article analyses some recent contributions to
the question of the conditions for the establishment of a worldwide system guaranteeing peaceful
and cooperative interaction.

Particularism is generally seen, from the perspective adopted by the authors of the books
presented, as an approach affected by severe insufficiencies. These are spelled out, depending on
the specific competences of the authors, as (i) political, (ii) juridical, and (iii) moral deficits.

The Rejection of the Particularistic Approach from the Standpoint of the Political Scientist

In Andrew Hurrell accurate analysis On Global Order, using the instruments of the political
sciences, the most significant issues with which international relations have to deal at the
beginning of the new century. At the end of his investigation he concedes that there are some
important factors which make Particularism – described by Hurrell as the ‘pluralistic view of the
international society’ – still powerful.

To mention just the most relevant ones, in a world in which the idea of a universal order, as well
as the international organizations which should realize it, is not immune to being captured by the
interests of the big powers, the perspective of a less ambitious coexistence between self-affirming,
if not completely sovereign, states against a background of a confirmed commitment to non-
intervention seems to be the most feasible solution. Secondly, in the age of globalization – and
often as an open reaction to it – the demand for national self-determination did not disappear, but
rather found new forms of resistance to alien rule. Thirdly, the importance of power, as well as
the need to contain it, instead of vanishing during recent decades, has become even more evident,
along with the necessity to resort again to the classic means of diplomacy. Fourthly, despite the
attempts to spread Western political culture, sometimes by force, the world remains deeply
divided as regards values, and while post-modernists argue for an ironic distance to absolute
principles, most of our fellow humans are still certain that values are God-given: facing this

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profound cultural and ethical division, the perspective of a universal order looks like a self-
defeating chimera.

Notwithstanding the arguments which still support the particularistic – or ‘pluralist’ – vision of
international order, Hurrell concludes that definitively more substantial considerations actually
speak for the inadequacy of particularism. First of all, challenges like ‘economic development,
environmental protection, human rights, the resolution of refugee crisis, the fight against drugs,
or the struggle against terrorism’ call for global governance, the complexity of which necessarily
involves institutions capable of interacting not only with state actors but also – admittedly, in a
somehow ‘intrusive’ way – with social players at the infra-state level. Furthermore, the resources
necessary to tackle the problems on a worldwide scale need to be ‘socialized’, in the sense that
the coordinated intervention of a plurality of global actors – and in particular of the big powers –
is the inescapable condition for success. Thirdly, precisely the abovementioned intensification of
identity politics in the globalized world has made the old-fashioned nation states largely obsolete
in their attempt to guarantee social cohesion. Fourthly, there is the growing question of global
inequality, including poverty and ‘the perceived illegitimacy of a system of global governance
that creates new patterns of inclusion and exclusion’. Lastly, order cannot be separated, in the
long run, from justice: so as to be stable and legitimate, order should also be ethically qualified –
which does not mean, however, endorsing the sometimes hypocritical Western policy of liberal
solidarism and support for democracy.

Therefore – Hurrell concludes – the present scenario is that our societies could adequately deal
with political problems of global range simply by entrenching themselves within the old patterns
of particularistic identities which will be likely to fail in front of ‘conditions which require the
identification of substantive collective goals and the creation of institutionalized structures of
governance to implement them’.

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Chapter- 4 A. PARTICULARISM IN GENERAL

Particularism is generally meant as an exclusive or special devotion to a particular interest.

Particularism is a position in meta-ethics. It has antecedents as old as Aristotle, but recently

theorists such as John McDowell, Jonathan Dancy, Maggie Little, and others have developed new
arguments for it.

A full-blown Particularist believes that whole situations are either good or bad; they can be validly
judged. However, the separate qualities or aspects of situations can never be assessed out of
context. We can never know in advance what difference a given quality will make. For instance,
the quality of generosity is (probably) good if it makes me donate to the homeless, but it is bad if
I give generously to a terrorist organization.

According to Particularists, the moral aspects of situations are analogous to splashes of red paint.
Adding a red patch might make a painting by de Kooning better, but a Vermeer worse; by itself,
the splash of paint it is neither beautiful nor ugly. The de Kooning (overall) is a good painting
and the Vermeer (overall) is a great one. We can make valid judgments, but only about whole
works of art, not about small components of them. The main lesson of Particularism is to doubt
“switching arguments.” We like to form opinions about the moral meaning of a concept that arises
in well-understood case, and then apply (or “switch”) it to new situations. So, for example, if we
admire conventional marriage because it reflects long-term mutual commitment, then we assume
that we should admire the same feature in gay relationships. Such switching arguments are rife in
philosophy—but Particularism implies that they are fallacious.

A. FORMS OF PARTICULARISM

➢ Historical Particularism

It is (coined by Marvin Harris in 1968) widely considered the first

American anthropological school of thought.

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The idea of Historical Particularism suggests all cultures have their own historical trajectory
and that each culture developed according to their own history. This idea was popularized by the
anthropologist Franz Boas, who is widely considered a founder of the discipline of anthropology.

Boas was responding to a particular school of thought in anthropology, known as the social-
evolutionary perspective. This approach saw cultures as following a linear trajectory. In other
words, more traditional cultures will eventually 'catch up' to the more developed cultures of
Western Europe.

The problem with the social-evolutionary perspective, according to Boas, was that this led us to
believe that Western European countries should be the model for what culture should look like.
This led to ignoring the particularities of different cultures. This is where historical Particularism
comes in.

Boas felt that the only way to really understand cultures was through in-depth research into their
individual histories. We can't assume any universal laws about cultures. This blinds us to the
important ways that cultures are different from one another. So historical Particularism is kind of
like a research method, in a way.

Boas urged anthropologists to go directly to the place they wanted to study, as opposed to trying
to examine it from afar. This was a response to a tendency at the time to simply write about
cultures rather than engaging with them. This lead to what many termed armchair anthropology.
Imagine it like this a professor in the ivory tower making judgments about cultures he never really
explored.

Also, Boas didn't think that comparison was a very good way to understand other cultures. Instead
of trying to find similarities and differences between two cultures, we should try and understand
the aspects of each of them in depth.

➢ Epistemological Particularism

Epistemological Particularism is the belief that one can know something without knowing how
one knows that thing. By this understanding, one's knowledge is justified before one knows how
such belief could be justified. Taking this as a philosophical approach, one would ask the question
"What do we know?" before asking "How do we know?" The term appears in Roderick

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Chisholm's "The Problem of the Criterion", and in the work of his student, Ernest Sosa ("The Raft
and the Pyramid: Coherence versus Foundations in the Theory of Knowledge"). Particularism is
contrasted with Methodism, which answers the latter question before the former. Since the
question "What do we know" implies that we know, Particularism is considered fundamentally
anti-skeptical, and was ridiculed by Kant in the Prolegomena.

➢ Moral Particularism

Moral Particularism is the view that there are no moral principles and that moral judgment can be
found only as one decides particular cases, either real or imagined. This stands in stark contrast
to other prominent moral theories, such as deontology or utilitarianism. In the former, it is asserted
that people have a set of duties (that are to be considered or respected); in the latter, people are to
respect the happiness or the preferences of others in their actions. Particularism, to the contrary,
asserts that there are no overriding principles that are applicable in every case, or that can be
abstracted to apply to every case.

According to Particularism, most notably defended by Jonathan Dancy, moral knowledge should
be understood as knowledge of moral rules of thumb, which are not principles, and of particular
solutions, which can be used by analogy in new cases. It ultimately requires that one will be in
good faith upon each particular circumstance as opposed to falling under the influence of
narcissism.

➢ Multicultural Particularism

To summarize that view, as Justice Stephen Breyer, of the United States Supreme Court, said in
reference to bright-line rules, "no single set of legal rules can capture the ever changing
complexity of human life."

It is the belief that a common culture for all people is either undesirable or impossible. In
discussions of multiculturalism, historian and educator Diane Ravitch draws a distinction between
what she terms "pluralistic" and "particularistic" varieties. Other writers often blur or ignore this
distinction; it is often difficult to discern whether advocacy for "diversity" or "multiculturalism"
is intended to promote particularism or not. In some quarters, even to raise the issue is taboo.

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 Chapter -5 Particularism in law

The term “Particularism” is encountered only rarely in the law. The basic idea of Particularism
itself is, however, of great importance in the law. Particularism is, helpfully, much more
prominent in contemporary moral philosophy.

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The opposite of Particularism, in moral philosophy and in law, is usually taken to be “generalism”
or “principlism.” For the moment, we may think of Particularism in the law as strongly de-
emphasizing the roles of principles, rules, standards, policies, and tests. More positively, we may
think of Particularism in the law as instead emphasizing vivid and concrete analogies,
hypothetical, stories, images, instructive fables, parables, particular incidents, legends and myths,
dreams, and similar sorts of narratives.

We will draw upon the treatments of Particularism in recent moral philosophy scholarship in
order to shed light on the proper role of Particularism in the law.

Our main conclusion, however, will be that it is, surprisingly, more important to appreciate how
mutually indispensible Particularism and Principlism are in the law. The synergistic effects of
Particularism and Principlism in the law deserve at least as much attention as their claimed
advantages and rivalries. Probably the best test case for understanding the roles of Particularism
and Principlism in the law invokes the historical and continuing struggle over slavery,
segregation, discrimination, and civil rights in general. This vital area of the law, running from
the Abolitionists to Dr. Martin Luther King, Jr. to the present date, allows us to contrast
Particularism and Principlism, and to see their mutual dependencies and important synergistic
effects. The synergistic effects and the reciprocal dependence between Particularism and
Principlism in the law lead us to think of loosely parallel relationships found in nature. This
symmetrical dependence between Particularism and Principlism in the law may ultimately be
broken, in favor of Particularism, only at the highest and most abstract stage of comparing
Particularism and Principlism in the law. Otherwise, the mutual dependence between
Particularism and Principlism seems important and stable. As we would expect with a symbiotic
relationship in nature, we shall find that Particularism and Principlism in the law are often at their
most valuable when fulfilling complementary roles. By loose analogy, we expect children to be
able to learn and communicate about addition most easily through Particularism, such as by
adding apples, physically, to other apples in their grasp. But we would be surprised to learn that
a competent adult continued to think of addition only in such particularized terms. This sort of
role differentiation should not, however, distract us away from the underlying mutual
dependencies upon which both legal Particularism and legal principlism rely.

A. MORAL PARTICULARISM AND PARTICULARISM IN THE LAW

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Particularism in moral theory is currently “popular. Several leading contemporary moral theorists,
including feminist moral theorists, along with some modern and classical antecedents, have been
described as moral Particularists.

Not surprisingly, there are different varieties of moral Particularism, with different degrees of
ambition of their claims. “Moral Particularism” can thus mean various things. But our interest in
moral Particularism is driven by our concern for legal decision making. Given our interests, we
can describe moral Particularism in several related ways, with no deep commitment to any single
formulation. Just to develop the idea, we might say that moral Particularism seeks to justify moral
judgments in ways that minimize, even if they do not entirely eliminate, any reliance on moral
principle.

Moral principles, even if they exist, should not guide, inspire, or validate our particular moral
judgments. In saying even this much, however, we have already raised the question of what counts
as a moral principle, and indirectly what should count, for our purposes, as a legal principle.
Perhaps the legal equivalent of a moral principle should include not only legal principles in a
narrow sense, but legal standards, rules, policies, and tests as well. This will depend upon how
the idea of moral Particularism is worked out. A moral Particularist need not deny that there might
be at least one moral principle, properly defined and limited.

The leading contemporary moral Particularist, Professor Jonathan Dancy, instead “sees little if
any role for moral principles.” Dancy thus argues that “moral judgment can get along perfectly
well without any appeal to principles.” This seems less a denial of the possibility of one or more
moral principles than a claim that the quality of our individual or our collective moral life will
not suffer if we abandon the attempt to identify and apply relevant moral principles when moral
judgments are required of us.

Thus moral Principlism holds “either that specific moral truths have their source in general moral
principles, or that reasonable or justified moral decisions and beliefs are based on the acceptance
of general moral principles. Moral Particularism rejects moral generalism.” Given our interest in
legal decision making, we will be especially interested in how moral Particularists make
decisions—what we might call moral adjudications—as “without principles, [a Particularist]
needs a robust theory of judgment.”

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On this crucial point of how moral judgments are to be made without reliance on moral rules, the
particularists can offer some degree of clarification. Ultimately, the particularist often may be
relying on a form of intuitionism. In turn, an intuition is thought of as a moral judgment that does
not follow logically from any set of premises the intuitionist holds and cannot be thus
demonstrated to be true. The intuition is still thought of as somehow true, self-evident, and the
result of properly attending to the morally relevant features of the situation. The intuition upon
which the particularist relies may be supplemented, if not prompted, by a number of devices and
techniques that may not rely on moral principle.

The moral particularist—like a legal particularist—can appeal to vivid and concrete images,
specific analogies and analogous cases, fictional or hypothetical scenarios, fables, parables,
anecdotes, stories, incidents, dreams, legends and myths, and narrative in general, for the sake of
enhancing moral vision or insight. More generally, Dancy points to the possibility of progress
toward agreement as each contending advocate “brings to bear other situations that are both
appropriately different from and also appropriately similar to the one before them.” Doubtless the
analogies, hypothetical stories, and other techniques of feeding intuition should strike us as
relevant and somehow telling. But this does not prove that all such devices must be logically
dependent for their very meaningfulness upon some broader principle.

However the idea of moral Particularism is developed, is there any reason to believe that there
cannot be a legal decision making analogue, in the form of legal Particularism? So it is not
surprising to find a philosopher encouraging us to extend the inquiry into Particularism from the
moral realm into the legal realm. Admittedly, it has sometimes been argued that legal analogies
do not select and prioritize themselves, and that “to identify what count as relevant similarities
and when two cases are sufficiently similar we must rely on something else, presumably a prior
general rule.” But not all use of analogy, and of every other technique priming a particularist
judicial intuition, or the intuition itself, must be based on some principle, rule, or policy. We will
instead be arguing for a typically symbiotic relationship in the law between Particularism and
principle, with the persuasive force of a legal argument sometimes exceeding that of the sum total
of the particularist and principlist contributions.

Consider that many judicial outcomes rest on an assessment by a judge, or by independently-

reflecting jurors, on the credibility of one or more witnesses or one or more items of testimony.

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It seems questionable that all such intuitive determinations could be reduced entirely to one or
more mutually consistent rules. It seems even more questionable that all of the decision makers
would be able to articulate such rule or rules after the fact, let alone claim to have taken such a
rule or rules as the sole basis of their decision making. Even if so, such a rule or rules may not
supply all of the persuasive force of the judicial outcome, even if it embodies all of the judicial
outcome’s logic. Riveting witness testimony, and its persuasive if not its purely logical force, may
not always be reducible entirely to principle. Or suppose, classically, that a judge is confronted
with two women who each claim to be the mother of a particular child, in an era without DNA
testing technology. Only one of the putative mothers appears willing to sacrifice her claim if
necessary to promote the basic interests of the child. The judge, emotionally moved, awards
custody of the child to that claimant. Now, it seems easy enough to devise a principle, or several
alternative principles, to account for the judge’s decision. But for our purposes, it is still of interest
if the judge honestly tells us that the decision was taken without conscious recourse to rule or
principle, even if a full justification of the decision would require some such recourse. Or suppose
the judge, at the time of drafting the official case report, actually consciously considered some
principle, whether flawlessly formulated or not. Would it still not be possible that this “covering”
principle was experienced by the judge as cold, distant, abstract, and unmotivating in this case,
however useful the principle might be for logically justifying the decision to the public? Perhaps
the intuitive, inarticulable, emotionally-affecting experience of one woman sacrificing her claim
was actually far more motivating, and in that sense more explanatory, of the judicial result than
any articulable principle. The judge could thus have endorsed some principle—perhaps
something like: “In an otherwise close case, give custody to the claimant who alone seems willing
to make great sacrifices for the basic wellbeing of the child.” Some such principle, thus
articulated, can sometimes itself be deeply moving, and powerfully motivating,34 but need not
be. A judge and a public might candidly admit to being far more moved by the story or the
testimonial experience itself, at the level of particularist intuition, than by any covering principles
at a more general or abstract level.

The principle might, in a given case, leave everyone cold. And for many legal purposes, this might
well be important. Someone might still be troubled, though, by an attempt to map moral
Particularism onto the legal landscape.

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Our interest is mostly in how the Particularism itself in moral Particularism translates into the
legal realm, with or without retaining the moral element of moral Particularism. An enhanced
understanding of Particularism and principlism in the laws can draw, as we will see below, from
the merely particularist, as distinct from the specifically moral, dimension of moral Particularism.

Legal Particularism is sometimes targeted, however, by a different sort of critique. The critique
in question, briefly put, is that principles operate as a useful constraint on “the all too familiar
tendency to engage in special pleading and rationalization” on behalf one’s own, or a favored
group’s, interests. Otherwise put, “with Particularism as a decision procedure, people would
persuade themselves that what they wanted to do was, in the particular circumstances, morally
allowed.” However appealing some may take this critique to be, it seems the sort of critique which
ought to be alert for empirical evidence where available.

One problem with this critique of Particularism is that any principle that is sensitive enough to be
generally appealing may, in its sensitivity to circumstances, also be vulnerable to manipulation in
favor of self or favored groups. And one person’s consistently principled judge may be another
person’s merely ideologically-biased judge. A judge who minimizes principle in favor of
particularized intuition could at the same time also display rigidity, and not just capriciousness.
In any event, even if either Particularism or Principlism has some overall advantage in this regard,
it seems that neither has a monopoly as an instrument of judicial self-indulgence. In the meantime,
without real evidence, it is not clear that particularism is really more vulnerable to self-interested
manipulation.

B. Particularism in India

As can be concluded from figure 1, India is a fairly particularistic oriented culture. This is
apparent in Indian culture by their focus on relationships.

Gesteland and Gesteland, describe relationship focus and deal focus. The dimension, universalism
– particularism, does not only refer to relationship- and deal focus but these are, however, a good
starting point.

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Figure 1: (Hampden-Turner, Charles and Trompenaars, Fons: 2001: 37) 18

According to figure 1, India is a relationship focused culture. This is confirmed by Gesteland and
Gesteland .When communicating with a culture that is relationship oriented, it is important to
remember the importance of trust in a business situation. A contract, for instance, is not
necessarily considered as being binding agreement in India as in a culture that is universalist
oriented. On the contrary, relationships are seen as a binding agreement. This is also confirmed
by Rainer Hamminger. When he asked him if the Indians tried to build up a relationship, he
answered: “Yes. They typically tried to create and build up at least a basic for a relationship…”

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This is might be because of the fact that Indians do not trust the system. They do not have trust
laws as people from the west do.

Chapter- 6 hROLE OF JUDICIARY

Particularism has made assumption as a double face in Indian politics. Particularism has spawned
two faces i.e. protective discrimination on behalf of disadvantaged and discriminated against
groups to promote equality of opportunity and a more recent striving for group representation to
distribute benefits proportionately among all social groups.

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The Supreme Court in a landmark judgment described below tried to quantify the proportionate
weight that should be accorded to each.

➢ M.R. Balaji and Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439

In this case, in the State of Karnataka, reservations were in force since a few decades prior to the
advent of the Constitution and were being continued even thereafter. The State of Mysore issued
an order under Article 15(4) of the Constitution declaring all the communities except the Brahmin
community as socially and educationally backward and reserving a total of 75 per cent seats in
Educational Institutions in favor of SEBCs and SCs/STs. Such orders were being issued every
year, with minor variation in the percentage of reservations. Later a similar order was issued
wherein 68 per cent of the seats in all Engineering and Medical Colleges and Technical
Institutions in the State were reserved in the favor of the SEBCs, SCs and STs. SEBCs were again
divided into two categories-backward classes and more backward classes.

Thus, the validity of the impugned order was questioned under Article 32 of the Constitution.

The Five-Judge Bench of the Supreme Court while striking down the said order enunciated the
following principles:-

(1) Article 15(4) is a proviso or an exception to Clause (1) of Article 15 and to Clause (2) of
Article 29

(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though
caste in relation to Hindus may be a relevant factor to consider, in determining the social
backwardness of a class of citizens, it cannot be made the sole and dominant test. Christians, Jains
and Muslims do not believe in caste system; the test of caste cannot be applied to them. Inasmuch
as identification of all backward classes under the impugned order has been made solely on the
basis of caste, it is bad.

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(3) The reservation made under Article 15(4) should be reasonable. It should not be such as to
defeat or nullify the main Rule of equality contained in Clause (1). While it is not possible to
predicate the exact permissible percentage of reservations, it can be stated in a general and broad
way that they should be less than 50 per cent.

(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an
executive order.

(5) The further categorization of backward classes into backward and more backward is not
warranted by Article 15(4).

➢ State of Madras v. Smt. Champakan Dorairajan [1951] S.C.R. 525

In the case by virtue of certain orders issued prior to coming into force of the Constitution,
popularly known as ‘Communal G.O.’ seats were apportioned in the Medical and Engineering
Colleges in the State of Madras.

Even after the advent of the Constitution, the G.O. was being acted upon which was challenged
by the Respondent as violative of the fundamental rights guaranteed to her by Articles 15(1) and
29(2) of the Constitution of India.

A Special Bench of Seven Judges heard the matter and came to the unanimous conclusion that
the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch
as the refusal to admit the respondent notwithstanding her higher marks was based only on the
ground of caste.

The Supreme Court in the case pointed out that while in the case of employment under the State,
Article 16(4) provides for reservations in favour of backward class of citizens, no such provision
was made in Article 15.

Pursuant to Supreme Court’s order in the case the Parliament intervened amended Article 15 by
inserting Clause (4), which reads:

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Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes.

Chapter- 7 THE WAY FORWARD

Why then, if the case for all major theories is so bleak, does Particularism remain such a prominent
topic? Such abstract struggle between Particularist and principled intuitions should not distract
from the essential points recognized above. Particularism and principlism in the law can and
should contend for advantage and priority, mostly without any clear resolution. However we

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might choose to total up their respective advantages, far more important is their mutual
dependence and complementarities of role. To the extent that judges are unfamiliar with or
uncertain about a legal matter, they may appreciate the opportunity to focus on the concrete, the
vivid, and the particular. In some respects, the particular can also move us emotionally and
motivate our efforts. The particular thus certainly has its place. We may, on the other hand, be
instructed and moved by articulated principle as well. And it would be odd to resolve a series of
slavery cases mostly through a memory of how we have decided each of the preceding slavery
cases, individually and in turn. Principle also has its vital role. At some point, it behooves us to
recognize the broader principle that no person can be an appropriate candidate for slavery. Our
motivation to carry that and similar principles forward in the law is at its best and strongest when
we are conscious of both the particularities and the universalities of slavery and freedom. Given
who we are, the particular and the principled in our legal system will crucially depend on one
another. Further research could use the findings to clarify different positions – i.e should
Particularism as a theory of justice be conceived in terms of practices through institutions, politics,
moral or law, or perhaps a newer form of Particularism that accepts difference but still sees
equality

Chapter – 8 CONCLUSION

My results indicate that Indian culture is very different from the cultures of Western Europe and
the USA. Indian culture is particularist, communitarist, and diffuse, outer-directed culture that
values ascribed status and has a synchronous view upon time. The cultures of Western Europe

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and the United states are in the opposite ends of the scale, with exceptions, that is. My discussion
deals with the impact of Particularism. It is evident that it has affected Indian culture. It seems to
be the case that Indians are becoming more individualistic oriented and that the caste system is
slowly becoming a system of class. Moreover, the family pattern is changing from a joint family
to a nuclear family in India which also affects the values.

Moral philosophy in the past few hundred years has been dominated by generalism. Philosophers
have assumed—without argument—that a successful explanation of morality must be grounded
in exceptionless principles. Perhaps the commitment to generalism was influenced by the
remarkable progress in the sciences spawned by the scientific revolution. Perhaps the thought was
that a successful explanation of morality should be modeled after an explanation in the sciences,
and that moral philosophers should seek exceptionless moral principles that would play a similar
explanatory role to the role played by laws of nature in the sciences. Yet despite the fact that many
outstanding philosophers have spent their careers trying to find and formulate exceptionless
explanatory moral principles, such principles have not yet been found. It would be a mistake to
argue from the persistent failure to formulate satisfactory principles, to their non-existence.

BIBLIOGRAPHY

1. An analysis of Indian Culture

file:///C:/Users/user/Downloads/An%20analysis%20of%20Indian%20Culture%20in.pdf
2. Consequences of Particularism
file:///C:/Users/user/Downloads/consequences-of-particularism.pdf
3. Dreams and formulas the roles of Particularism and Principlism in the law.
file:///C:/Users/user/Downloads/lrv-issues-v37n01-cc5.wright.pdf

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 4. Beyond Particularism: Remarks on Some Recent Approaches to the Idea of a Universal
Political and Legal Order
https://academic.oup.com/ejil/article/21/3/765/508678
5. Another Particularism: Reasons, Status and Defaults
https://www.jstor.org/stable/41472581?seq=1#page_scan_tab_contents
6. A Defense of a Particularist Research Program*
https://www.philosophy.northwestern.edu/community/nustep/07/Particularism.pdf

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