POSITIVE DISCRIMINATION IN INDIA:

LAW, POLICY AND IMPLEMENTATION

A
DISSERTATION
SUBMITTED TO
DEPARTMENT OF LAW
DEEN DAYAL UPADHYAYA GORAKHPUR UNIVERSITY,
GORAKHPUR

IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE SEMESTER

EXAMINATION OF COURSE
BA LLB
SESSION 2022-2023.

Supervisor: Submitted By:

Dr. ALOK KUMAR VIDISHA TRIPTAHI
ASSISTANT PROFESSOR XTH SEMESTER[ BA LLB ]
DDU GORAKHPUR UNIVERSITY ROLL NO - 2314350010088
Dr. ALOK KUMAR
ASSISTANT PROFESSOR
DEPARTMENT OF LAW
DDU GORAKHPUR UNIVERSITY

SUPERVISIOR CERTIFICATE

This is to certify that Ms. VIDISHA TRIPATHI is a bonafide student of BA

LLB Course from DEEN DAYAL UPADHYAYA GORAKHPUR
UNIVERSITY and has satisfactory prepared the dissertation titled “POSITIVE
DISCRIMINATION IN INDIA: LAW, POLICY AND
IMPLEMENTATION” under my supervision and guidance. To the best of my
knowledge and belief the work is original.

I am fully satisfied that this dissertation is worthy of consideration for the semester
examination. Her dissertation may be accepted for evaluation.

I wish her all success in life.

Date:___________

Place:__________ DR. ALOK KUMAR

[Supervisor]
 DECLARATION

I, hereby declare that the dissertation work titiled “POSITIVE

DISCRIMINATION IN INDIA: LAW, POLICY AND

IMPLEMENTATION” submitted to DEEN DAYAL UPADHYAYA

GORAKHPUR UNIVERSITY is a record of an original work done by me and
this project work is submitted for the semester examination of course BA LLB.

I, also hereby declare that this dissertation has not been submitted to any other
faculty member or University for award of marks.

PLACE:-

DATE:- VIDISHA TRIPATHI

 ACKNOWLEDGEMENT

The research work would not have been possible without guidance, support and
encouragement of few people, whom I would like to thank.

To begin with, I would like to express my deep sense of gratitude and respect
towards my supervisor Dr. ALOK KUMAR sir for giving me invaluable
opportunity of working, guiding and discussing the difficulties encountered. My
work would not have been successful without his constant reviews, comments,
valuable guidance and support.

He steered me in the right direction whenever he thought I needed it. His insightful
comments and evaluative discussions helped me immensely in developing and
revising my ideas.

I would like to express my gratitude towards Dean Prof AHMAD NASEEM, who
approved my topic and believe in me that I can do justice to this research. .

My gratitude also goes out to the staff and administration of DEEN DAYAL
UPADHYAYA GORAKHPUR UNIVERSITY for the infrastructure and in the
form of our liberty that was a source of great help for the completion of this
research.

VIDISHA TRIPATHI
 TABLE OF CONTENT

INTRODUCTION.......................................................................................................... 1-9

CHAPTER 1 : THE IDEA OF WELFARE AND “AFFIRMATIVE ACTION” : INDIAN

PERSPECTIVE ................................................................................... 10-12

CHAPTER 2 : CONSTITUTIONAL PROVISIONS VIS-À-VIS AFFIRMATIVE

ACTION .................................................................................................................. 13-23
2.1 Fundamental Rights and its Relations with Different Affirmative Actions..........................13
2.2 Prohibition of discrimination: Article 15...............................................................................18
2.3 Equality of opportunity in public employment: Article 16...................................................20
CHAPTER 3 : POLICY OF RESERVATON AND SCOPE OF POSITIVE
DISCRIMINATION ................................................................................................ 22-110

3.1 The Genesis of the Law of Reservation in India ......................................................22

3.2 Development of Reservation Policy .........................................................................24
3.3 Government of India Act 1919 .................................................................................26
3.4 Constitution of the Lothian Committee with a Special Mandate to
Accommodate the Political Demands of the Depressed Classes...........................28
3.5 Communal Award 1932 ...........................................................................................30
3.6 The Poona Pact, 1932 ...............................................................................................31
3.7 The Constituent Assembly Debates : Minority Vs Backward Classes ....................32
3.8 The Judicial Approach and Contribution to Reservation Policy ..............................33
3.9 The Constitution (Seventy-Seventh Amendment) Act, 1995 ...................................49
3.10 The Constitution (Eighty-first Amendment) Act, 2000 ..........................................53
3.11 The Constitution (Eighty-second Amendment) Act, 2000 .....................................54
3.12 Insight into the Affirmative Action in Select Countries and Comparative Analysis
With India..........................................................................................................................54
3.13 Continuing with the policy of reservation ..................................................................87
3.14 Reservation in Promotion ...........................................................................................93
3.15 A Brief Comparision of Affirmative Action in Some Other Countries and in India..99
3.16 Comparison of Affirmative Action in India and USA ............................................106

CHAPTER 4 : OTHER LEGISLATIONS PERMITTING POSITIVE

DISCRIMINATION IN FAVOUR OF WOMEN, CHILDREN, WORKERS, DISABLED,
AGED PEOPLE ETC ................................................................................................. 110-117

4.1 Positive Discrimination and the Factories Act, 1948 ...............................................110

4.2 The Mines Act, 1952 and the Positive Discrimination ..............................................111
4.3 The Child Labor (Prohibition and Regulation) Act, 1986 and
Positive Discrimination ..........................................................................................112
4.4 The Employees’ Compensation Act, 1923 and the Positive Discrimination ..........112
4.5 The Employees’ State Insurance Act, 1948 and the Positive Discrimination ..........112
4.6 The Maternity Benefits Act,1961 and the Positive Discrimination ........................113
4.7 The payment of Gratuity Act, 1972 and the Positive Discrimination .....................113
4.8 The Minimum Wages Act, 1948 and the positive discrimination ...........................114
4.9 The payment of Bonus Act, 1965 and the Positive Discrimination ........................114
4.10 The Equal Remuneration Act, 1976 and the Positive Discrimination ...................114
4.11 The Dowry ProhibitionAct,1961 and the Positive Discrimination ........................115
4.12 The Medical Termination of Pregnancy Act ,1971 and the
Positive Discrimination ..........................................................................................115
4.13 Some other Flagship Programs and Schemes of the Central Government :
Instances of Affirmative Action .............................................................................155

CHAPTER 5 : SUMMARY, FINDINGS (TESTING THE HYPOTHESIS) AND

CONCLUSION ...................................................................................................... 118-121

BIBLIOGRAPHY ........................................................................................ 122-124

1.1 INTRODUCTION

Indian democracy has made a long journey and it has been incorporating all the social values and
characters of the relevant times. As we know that there is a very close relation between the social
change and the law of the land of any country. The dynamism between the social transformations
and the legal rules with respect to those social transformations, provide for the expression of the
will of the society at large. Beginning from the “hunting and gathering society” and moving
through different phases like “social contract”, “ laissez faire” etc., we have reached at a point
where we are settled with the idea that India is a “welfare state”. 1 The expression “ welfare
state” indicates towards the affirmative action of the state to promote equality. India as a diverse
society, needs that the needs and requirements of all the sections of the society must be
addressed in each and every action of the state when measures are taken by the state in the larger
interest of the society. In consonance with the idea of welfare, our governments whether the
central or any of the state governments are committed to bring about the social changes by
making new policies from time to time.

Affirmative action, sometimes involves measures and initiatives like poverty alleviation
programs, employment generating schemes and plans, health improvement and some disease
eradication programs like polio eradication, T. B. eradication, small pox eradication etc. So, the
corpus of all the steps taken by the governments of the day.

Our constitution was enforced on 26th of January, 1950. The constitutional law of India as well as
its constitutionalism pave the way for the welfare of people at large. But the question arises as in
what are the provisions in the constitution of India which advocate the idea of welfare. So, in the
preamble of the constitution itself which talks about the golden objectives of the constitution, the
highest principles like equality2, justice, fraternity, brotherhood socialism, secularism, liberty and
integrity of the nation, have been mentioned.

1th
D.D. Basu Shorter Constitution of India 634-635 (Lexis Nexis, Haryana, 14 edn., 2008).
2th
V.N.Shukla Constitution of India 47(Eastern Book Company,Lucknow,12 edn.2013)

1
The cumulative effect of all the principles are always reflected by the judicial pronouncements
and welfare initiatives taken by any government.

In this research paper which is titled as “positive discrimination in India, law and
implementation”, I will be exploring all kinds of affirmative action's by the governments and in
particular the policy of reservation in India. So, to start with, I will be dealing with the
constitutional provisions and their relations with various welfare policies including the labor
legislations. Apart from the labor legislations , the competent legislatures in India have made
other kinds of laws that is they have come up with other kinds of legislations like legislations
related to empowerment of women, children, old-aged people, widows, orphans, backward
people, down - trodden people, government servants etc. So, enactment of such legislations is
also a great deal of welfare because the government brings about its policies and their
implementation through legislations in general. Sometimes, some measures are taken by the
executive orders also.

Here is a brief account of the constitutional provisions related to the various welfare labor
legislations:-

(1) Preamble:3 It talks about the Welfare of the people and a welfare state. A country is called a
welfare state when it removes the prevailing problems in the society. In our country , several
social and Labor problems are noticed. Hence every possible effort is made so that these
problems are removed. On the other hand, in the preamble of the constitution, the socialistic
pattern of the society is also envisaged. Hence the government tries to bring equality in the
wealth and distribution of natural resources. So, there is a possibility of greater share of
allotment relatively to economically backward workers so that they can improve the
standards of their living. Thus we can say that both the facts stated in the preamble try to
protect laborers and extend benefits to them.

(2) Provisions regarding labor under part 3 of the constitution:-

3th
D.D. Basu Shorter Constitution of India 1-18 (Lexis Nexis, Haryana, 14 edn., 2008).

2
Fundamental rights4 are mentioned under the part third of the constitution. If we go through all these
articles then we find that some of them are related to labor also which are being discussed below:-
(a) Article 14

(b) Article 15

(c) Article 16

(d) Article 17

(e) Article 19

(f) Article 20

(g) Article 21

(h) Article 21A

(i) Articles 23 and 24

The analysis of the above mentioned articles are supplied latter, after the introduction.

(3) Provisions related to labor under part four that is the directive principles of the state policy:-

(a) Article 39
(b) Article 41
(c) Article 42
(d) Article 43
(e) Article 43A
(f) Article 45
(g) Article 47.

Emphasis on the above mentioned articles is being supplied latter on, after the introduction part.

4th
V.N .Shukla Constitution of India 43-46(Easter Book Company, Lucknow,12 edn.2013)

3
(4) Division of legislative powers (schedule7) 5:-The Union list contains the following important
subject-matters related to workers:-

(a) to send delegate in international labor Organizations, international conferences and

institutions.

(b) Subject –matters related to mines, Oil fields, ports, docks, postal services and telephones etc.

Similarly, the state list also contains certain provisions related to disabled and relief to the
underprivileged.

Now, some subject-matters are mentioned under the concurrent list also like trade unions,
industrial disputes etc.

(5) Administration of the labor laws:- Under some articles of the constitution, some important
provisions related to the administration of the labor legislations have been stated which may be
mentioned as under:-

(a) Article 256 and 257: under these articles it has been mentioned that the central
government may give direction or advice related to the administration of the labor legislations to
the state governments .

(b) Powers and duties (Article 258): Under this article it has been stated that the central
government can give powers to its representatives or officers for the implementation of labor
legislations. Although it can also define the duties, powers and responsibilities etc. of these
officers in any state.6

(c) Supremacy of central legislations (Article 258): It is stated that if both the central and
state governments passed laws on any particular subject and they are contradictory in nature to
each Other then in such a situation the law passed by the central legislature will be valid or
applicable and the decision will be taken according to the law passed by the central government.

5 P.M. BakshiThe Constitution of India362-372(Universal publishing Co.,Delhi,8th ed.,2008).

6 V.N.ShuklaThe Constitution of India26(Eastern book company,Lucknow,12th ed.2013)

4
Thus in the constitution, in the preamble8 as well as under various articles, we find several
provisions which are directly or indirectly related to the workers which have been discussed as
above. After the study of all these articles we can say that all these provisions try to uplift the
Indian workers socially, economically, politically and mentally so that a new India can emerge.

Apart from all these constitutional provisions, other legislations have been passed by competent
legislatures from time to time to strengthen the position of workers in India. Some may be worth
mentioning here as under:-

• The Factories Act, 1948.

• The Employees’ Compensation Act,1923( Earlier known as Workmen’s Compensation Act,
1923).
• The Employees’ State Insurance Act,1948.
• The Maternity Benefits Act,1961.
• The Mines Act, 1952.
• The Minimum Wages Act,1948.
• The Industrial Disputes Act,1947.
• The Industrial Employment(Standing Orders)Act,1946.
• The Bonded Labor System(Abolition) Act,1976.
• The Child Labor( Prohibition And Regulation)Act, 1986.
• The Contract Labor( Regulation and Abolition) Act,1970.
• The Dangerous Machines (Regulation) Act,1983.
• The Environment (Protection)Act, 1986.
• The Equal Remuneration Act, 1976.
• The Payment of Bonus Act,1965.
• The Payment of gratuity Act,1972.
• The Trade Unions Act,1926.
• The Unorganized Workers’ Social Security Act,2008.

Further, my work progresses to explore the position of women and children and the affirmative
action on the part of the state7 to improve their situation. The constitutional as well as other
provisions and legislative action which provide for the upliftment and strengthening of the two
7 V.N. Shukla The Constitution of India 26(Eastern Book Company, Lucknow,12th ed.,2013).

5
groups. I will be dealing with the relevant Constitutional provisions such as Article 15(3), article
418 etc. as well as the provisions related to women and children in the labor legislations as
mentioned above. Other legislations like Dowry Prohibition Act, Surrogacy laws, Sexual
Harassment of Women at Workplace Act, 2015, Protection of Women From Domestic Violence
Act, 2005 etc.

Apart from that there have been some positive activism on the part of the state for the benefit of
children out of which some are worth mentioning:

• Child Labor Prohibition and Regulation Act,1986.

• Child marriage Restraint Act, 1929.
• Juvenile Justice Act, 2000.
• Prohibition Of Child Marriage Act, 2006.
• The Children Act,1960.
• The Infant Milk Substitutes Act, 2003.
• The Infants Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production,
Supply and Distribution) Act, 1992.

Apart from these certain affirmative action's with respect to disabled people have also been
showcased in India as under:-

• Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995.
• The Rehabilitation Council of India Act, 1986.

Some legislative acts with respect to the Old-aged people are worth mentioning here:-

• Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

• Section 125 , Cr.P.C.,1973.
• The Hindu Adoption and Maintenance Act, 1956.
• Article 41, Constitution of India.

8 P. M. Bakshi The Constitution of India88 (Universal Publishing Co.,Delhi,8th ed.,2008).

6
Comments: this brief introduction of this dissertation talks about the different affirmative action
fields in which there have been some worthwhile progresses in our country, also. different social
groups need different treatment to cater to their respective needs and our welfare state 9 has made
efforts to do that from various perspectives. my work is a bit inclusive in nature which includes
by and large all the major affirmative action's by the state. a detailed account of it will be
produced in different chapters. primarily the beneficial groups are laborers, women,
children ,disabled , old aged people etc. in the brief history of the independent India we have
seen the most important affirmative action in the form of reservation. so, the policy of
reservation takes the center stage amongst all the affirmative action's. I will be dealing with the
policy of reservation under a separate head later in my work because it requires a special focus
looking at its relevance under the current socio-political scenario.

1.2 SIGNIFICANCE OF THE TOPIC (RELEVANCE OF THE STUDY)

from the jurisprudential point of view there is a very close relationship between the law and the
society. the dynamism of these two entities must be analyzed, understood and internalized so as
to be able to understand the real situation prevailing in our society. policy of the state creates the
bigger corpus of the legal framework out of which the exact laws are located and then given a
concrete shape and morphology. there are various “schools of jurisprudence” 10 out of which the
historical school relies on the premise that laws are not made, they are found in the society. as
we know, Savigny was the main proponent of this idea. so far as different affirmative actions are
concerned, we realize that each of the action has to be tested on some touchstone or parameter to
establish its constitutional validity and then only it becomes eligible to be enforced and
implemented. so, the contemporary legal regime ( positive law as per the Austinian concept) is
somewhere , a kind of the “emerged form" of the historical legal regime. it has to be traced back
somewhere in the history. but, the Indian democracy is one of the nascent ones and its
constitutional law is also not very old, meaning thereby that the history of the affirmative action
in India may be studied in the background of the post- independence era. Keeping all these
perspective in mind, it becomes a pertinent, desirable and possible proposition that a deep study

9 D.D.BasuShorter Constitution of India634-635(Lexis Nexis,Haryana, 14th ed., 2008).

10 Dr. N. V. ParanjapeStudies in Jurisprudence15-78(Central Law Agency, Allahabad,4th ed.,2006).

7
should be done to understand the different facets of the affirmative action and its impact on our
society at large. So, this is an opportune moment which I am ceased with to have my stint with
this brief study of the positive discrimination and its various shades in our society.

1.3 OBJCTIVES OF THE STUDY

(1) To study the ambit of positive discrimination in India.

(2) To study and analyze the policy of reservation under the constitution of India.

(3) To compare and analyze the policy of affirmative action in the form of reservation in
India with the affirmative action in the U.S.A.

(4) To look into the pros and cons of the contemporary affirmative action in India and the
way forward.

1.4 RESEARCH QUESTIONS

(1) How effective has been the policy of affirmative action which inter alia includes the
policy of reservation?

(2) Are the affirmative action's fundamental rights under the Constitution of India?

(3) Do we need to have a re-look at the pattern of the affirmative action and its impact on the
society at large?

(4) Why do we have pro and anti- reservation protests in our country?

(5) What are the implications regarding the politics of symbolism and identity attached with
this affirmative action, in particular the reservation?

1.5 HYPOTHESIS

Positive discrimination as envisaged under the constitutional law of India has not yielded the
desired results due to the politics of caste, identity and symbolism.

8
1.6 REVIEW OF LITERATURE AND LIMITATIONS

All the books do not touch upon all the aspects of my dissertation. So, I have referred to text
books on constitutional law of India by different authors which include M.P. Jain11, H .M.

Seervai12, V.N. Shukla, D.D. Basu ,J.N. Pandey 13 , Subhash C. Kashyap14etc. Apart from that I
have also referred to the reports of the National Commission of scheduled castes and scheduled
tribes, reports of the national commission of the backward castes, journal of the
NHRC( National Human Rights Commission).References have also been made to certain articles
titled as “Caste in Changing India” by A.P. Baranabas and Subhash C. Mehta, Caste Panchayats
and the Policing of Marriage in Haryana, Moments in a history of reservations by Bhagwan Das
in EPW(Economic and Political Weekly) etc.

1.7 RESEARCH METHODOLOGY

The nature of the problem at hand being a doctrinal research, entails a careful examination and
evaluation of the relevant laws and to meet this end, the analytical method (armed-chair ) has
been resorted to wherein I have gone through various sources which inter alia include textbooks,
judicial pronouncements, journals and articles. the research also involves the ascertainment and
description of the attitude of the courts also and hence a descriptive method has also been
adopted. It involves some comparative methods also. so, analysis, comparison and description
form the core of the research methodology.

11 M .P.JainIndian Constitutional Law (Wadhwa Nagpur 5th ed.,2008)

12th
H.M. SeervaiContitutional Law of India(Universal Law publicatiOn Co.,Delhi,4 ed.,2008).
13th
Dr. J.N. PandeyThe Constitutional Law of India( Eastern Book Co.Ltd,Lucknow, 48 ed., 2011)
14th
Subhash C. Kashyapour Constitution(National Book Trust,Delhi,4 ed,2005).

9
 CHAPTER 1

THE IDEA OF WELFARE AND “AFFIRMATIVE ACTION”: INDIAN PERSPECTIVE

The preamble of the constitution of India provides that India will be a welfare state. a country is
called a welfare state when it tries to remove the existing problems in the country. After the
independence of India, a written and comprehensive constitution was adopted and given to
themselves by the people of India. in India two types of basic problems are found which are
labor problem and the social problems. So, as per the preamble of the constitution the
government is committed towards a welfare state and the removal of the problems at large in our
society which inter alia includes the problems of labor, women, children, old-aged people and
disabled people primarily. relying on these notions of welfare we can categorize the whole
corpus of the legislations into two categories as labor legislations and the social legislations. to
achieve this sense of welfare15 , the government of the day attempts to come up with various
welfare and labor provisions for the above mentioned categories . The whole population may be
divided into different groups and there may be devised a mechanism to locate the real needy of
the scheme or the program and the benefit can be made accessible to them.

On the other hand, the preamble of our Constitution also envisages the socialistic pattern of
society which has been inferred in so many judicial pronouncements by the Honorable Supreme
Court of India. So the Government, in general as its primary duty, takes up the attempts to
establish equality in our society in all its connotations including the distribution of wealth and
natural resources among the citizens of our country. Consequently there is a possibility of greater
share of allotment relatively to the economically backward workers so that they can improve
their life standards.

The very idea of welfare envisioned the idea of socialism 16. But the contextualization of the
socialism is a must here. The raw form of socialism wherein the state have the ownership over
the resources and every dispensation is completely state –controlled, like in the erstwhile USSR.
but in the Indian context, the idea of socialism simply means the establishment of equality in all

15 Pp.634-635
16 D.D.BasuShorter Constitution of India3-4(Lexis Nexis,Haryana,14thed ., 2008)

10
its forms and colors. We can draw an analogy from the constitutions of France and Germany
where the term socialism means social democracy which inculcates the idea of social justice
through the instrument of equality. In our Constitution also, the very idea of socialism is very
close to that of the French and German socialism but the Constitution does not define the
expression socialism per se.

The ancient primitive human life wherein the human beings were leading a hunting and
gathering type of their lifestyle, we slowly and gradually kept our evolution going on with time
and we reached a stage in history where we led a kind of life and started interacting with each
other as small human groups which ultimately took the shape of the society. As our social
scientists say that we lived in an era of social contract after that we moved towards the laissez-
faire state where the state exercised its control over its different dispensations and deliberations..
The concept of welfare in India got a big boost by this policy of LPG because the Indian market
which had remained closed for the International market for such a time, was made open for it .
The Indian economy started to get foreign direct investments and its consolidation era began
from there. Now we live in an open market era where the world economic order is not untouched
from the Indian economy , rather India has emerged to be the largest product market of the world
in the sense of consumption. India is a key economic player in the international market because
of the shift in the policies in the recent times. The is a close inter-linking between the
strengthening of the economy of India and the success of any welfare scheme of the government
because for that purpose we need to have a great deal of resources. The resources involve not
only the natural resources, rather it includes artificial resources also.

CONCLUSION

After the preamble of the constitution, comes the part third which contains the fundamental
rights. So, the relevant provisions and the enshrined principles under this part also is being
discussed as and when it is required, under a sub –heading” fundamental rights vis-a-vis
welfare”.

11
 CHAPTER 2

CONSTITUTIONAL PROVISIONS VIS-À-VIS AFFIRMATIVE ACTION.

2.1 Fundamental Rights and its Relations with Different Affirmative Actions

Equality before law (article 1417): Indian workers are categorized as the working section of the
society. On the other hand, due to enough accumulation of wealth, the employers are
economically very strong and in a dominant position as compared to the employees that is to say
the working class. As per this article, it is stated that the consideration should be made to treat
any citizen of India equally before the law. Therefore the economically weak workers get the
right to work fearlessly according to the law because they feel secured by the law of the land. If
the employers contravene any of the provisions of the relevant labor legislation then there lies an
action against the employer who breaks the law. A brief analysis of this article is being
emphasizes bellow:

Right to equality means legal equality and not the equality which is perceived in the mechanical
or the natural sense or in its absolute sense. Under the Article 14, the citizens as well as the
noncitizens, both are eligible to avail the equality but it is not available to the enemy aliens. The
word person in this article is of very wide amplitude and it inculcates the legal persons such as
companies, registered societies, corporations or any other legal person which stand the devised
tests. We can see that the principle that all are equal before the law and are entitled without any
discrimination to equal protection of the law which is enshrined under the article seven of the un
Declaration of Human Rights, 1948, is also enshrined under Article 14 of the Indian
Constitution. The judicial interpretation of this article also has evolved with time and we can
realize it through the legal history of the law related to the equality under the constitution of
India. Generally speaking, there are two kinds of views of equality . The first one is the
traditional view of equality which is based on the doctrine of “reasonable classification” and the
second one is the view of equality which is based on the “doctrine of arbitrariness” the meaning
of the term classification is a kind of segregation of different groups which are having some

17 H.M seervaithe Constitutional Law of India435-692(Universal Law Publication Company,Delhi,4th

ed.,2008)

12
common features among themselves or they have a similar systematic relation or the
characteristic features. India being a diverse society needs different kinds of affirmative actions
in different perspectives to cater to the real needs of every corner of the society so, it is for the
competent authority to locate or identify all such groups in the society and to provide the equal
protection of laws to them as per their respective needs and requirements. Each group is different
from the other group and hence the nature of the legal protection to one group is not necessarily
the same as for the any other group or groups.

(a)traditional view of equality: this is based on “reasonable classification” 18. So what is the test
for a classification to be categorized as a reasonable classification? The answer of this question
lies in the proposition that a classification may be a reasonable classification if it follows the
following test:

First: the classification should be based on the intelligible differentia;

Second: the “intelligible differentia”19 must have a rational relation with the object sought to be
achieved by the act or legislation.

The two expressions that is differentia and the objective of the act are entirely different from
each other. On one hand the expression “differentia” forms the basis of the classification, the
expression objective means the ends towards which the act is aimed at, by the legislature. What
is more important in the whole discussion of equality is that there must be a close nexus between
the differentia and the objective of the act which makes the classification. If there is no
classification as per the above mentioned test, then there is no “reasonable classification” and the
legislation will be held to be discriminatory.

The equality under article fourteen of the constitution of India gives the permission of reasonable
classification but does not allow the class legislation. The expression “class legislation” means
an improper discrimination by providing special privileges on a particular group of people

18th
Dr. J. N. PandeyThe Constitutional Law of India p.81( Central Law Agency, Allahabad, 48 ed., 2011).
19th
H.M. SeervaiThe Constitutional Law of India p.482(Universal Law Publication Company,Delhi,4 ed., 2008)

13
arbitrarily selected from the larger group of people. So, here is no reasonableness in the inclusion
of a class of persons and providing privileges on it and excluding the other group from being
beneficiary of such privileges.

In State of West Bengal V.Anawar Ali Sarkar 2021, it was observed that the power of the
government to classify the offences in “certain offences” category, was arbitrary because there
was no basis of classification that is the differentia was missing in the classification and hence
there could be no close nexus between the objective of the act and the differentia which simply
shown that there was no policy or proper guidelines regarding which offence was to be
categorized as the offence to be referred to be tried under the special law of the sate and it was
left open only to the pleasure of the government.

In the same case another observation was also made regarding the procedural aspect of the law
which was substantially different from the procedure under the Cr.P.C.,1973. The observation
was made by the court that the law did not provide for any basis of classification did it mention
clearly as to what kinds of offences were to be referred for speedier trial by the special courts
established under the impugned law.

On the similar line of facts, in another case titled KathiRanning v. State of

21
Saurashtra , it was observed that the impugned ordinance provided for the guiding
principles like public safety and maintenance of the public tranquility in the society. So, it was
interpreted in the light of these guidelines that there was a reasonable classification of offences
which were to be referred to such special courts established under the ordinance for the special
trial of offences. So, the ordinance was held to be not violative of the Article 14.

Now, in Re special courts bill, 197822 it was observed by the supreme court that the objective of
the bill was the speedier trial. The parliament had done two types of classifications:

Firstly, the classification of “offences” and secondly, the classification of “classes of offences”.
20 AIR 1952SC 75.
21 AIR 1952 SC 123.
22 AIR 1979 SC 478.

14
Further, the classification of offences was based on the duration of time period(1975-77). So, it
was held to be a reasonable classification. The basis of classification of the “classes of offences”
was the “status of the offenders” that is all those people who were holding high posts during that
time period. So, this classification was also held to be reasonable. It was further observed that
when there existed the two conditions as in that act, the prosecution could be initiated in the
special courts. So , the offences committed during the emergency constitute a class. Thus there
was a close relationship between the basis of classification and the object of the bill that is
speedier trial. So, the bill was held to be not violating the article 14.

In Subramanian Swami vs. Raju, through member, juvenile justice board(AIR2014

SC), it was observed by the supreme court that the J. J. Act puts the offenders below eighteen
years of age to be dealt with different procedure.

In Javed v. State of Haryana23, the supreme court upheld the constitutional validity of
the Haryana Panchayati Raj Act,1994 which made the provisions to disqualify a person from
holding the office of sarpanch or a “panch” of a gram panchayat , if he was having more than
two living children.

(b) Modern view of equality: under the new concept of equality which is based on the doctrine of

arbitrariness, in E.P.Royappa v. State of Tamil Nadu24, it was propounded that the

concept of equality is a very dynamic idea and it has got so many aspects and dimensions. So it
cannot be and should not be confined to the singularity of its meaning which is the equality
based on classification, only. Further it was held that arbitrariness and equality are sworn
enemies to each other . Furthermore, equality is one aspect of the “Rule of Law” and on the other
side the concept of arbitrariness is the whim and caprise of the absolute authority. So, if an act is
arbitrary then it is implicit in it that it is not equal both as per the political logic and the
constitutional law of our land and hence it will end up violating the article 14.

23 AIR 2003 SC 3057.

24 AIR 1974 SC 555.

15
In Menaka Gandhi 25, the E.P. Royappa was reiterated and it was observed that Article 14 strikes
at the arbitrariness in the state action and ensures the fairness and equality of treatment. The
principle of reasonableness, which is legally as well philosophically, an essential element of
equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.

In R.D.Shetty v. International Airport Authority26 case, the rulings of E.P.

Royappa and Maneka Gandhi, were reiterated. In Ajay Hasia v. Khalid Mujib 27, the supreme
court observed that the allocation of one third marks of the aggregate marks for the interview as
arbitrary and violating the Article 14, on the face of it.

In Mithu v. State of Punjab28, sec.303 of the ipc,186o was held to be unconstitutional which
violated article 14. In Danial latifi v. UOI 29, the supreme court upheld the validity of the
impugned act and observed that a careful reading of the provisions of the act indicates that a
muslim husband is liable to pay the compensation to her divorced wife as maintenance.

So, in the light of the above discussion, it is obvious that when the state moves forward with the
idea of welfare through state activism, it should keep in its consideration the concept of equality
under Article 14. Be it the idea to promote the status of women or children in our society, the
cardinal principle enshrined under the Article 14 cannot be ignored because it is one of the basic
structures of the constitution. In this patriarchy driven society of ours the conditions of women is
not very appreciable. We as a society need to work to forward the concerns of women and the
state as the guardian must promote the women welfare through its various instrumentalities. So,
the idea of equality lies at the core of the positive discrimination in the Indian polity.

2.2 Prohibition of discrimination: Article 15

Under this article it has been stated that there will be no discrimination among the citizens of the
country on the basis of religion, race , caste, sex, place of birth etc. As this provision is
applicable on workers also, therefore till now so many labor legislations have been enacted to
25 AIR 1978 SC 597.
26 AIR 1979 SC 1628.
27 AIR 1981 SC 487.
28 AIR 1983 SC 473.
29 AIR 2001 SC 3262.

16
remove the prevalent discrimination against the workers in different establishments and the
people of our country belonging to any religion, race, caste sex, place of birth etc., being
subjected to different kinds of discrimination have been rescued from being discriminated
against. In coming discussions we will discuss the most “talked about” positive discrimination
that is the policy of reservation under the constitution of India. Articles like 15, 16 are the special
instances of the general idea of equality which has been envisaged under the preamble and
Article 14. While Article 14 contains the general principle of equality , Article 15 to 18 specify
some areas for the application of the general principle in the context of the citizens of India. So
far as article 15(2) is concerned, it is enforceable against both the state and private individuals.
As we know that fundamental rights cannot be enforced directly under article 32 against any
private individual but it is applicable only in case the fundamental right has been violated by the
state. The clause 1 simply says that the state shall not discriminate against any citizen on the
grounds only of the religion, race, caste, sex, place of birth meaning thereby that any particular
group of citizens cannot be treated in an unfavorable manner by the state .so, if a law which
provides for the discrimination on the ground of residence then it will not violate article 15. “the
place of birth” is not synonymous with the expression “domicile” and hence the reservation in
the admission in the government-run medical colleges based on domicile was not prohibited by
article 15(1), which was held in D.P.Joshi v. State of Madhya Pradesh30.

Now, the discrimination in favor of a particular sex will be permitted if the classification is the
result of other considerations besides the fact that the person belongs to a particular sex. Such
other consideration may be like physical fitness or intellectual fitness. The second clause of this
article says that no citizen shall be subjected to any disability and liability on the grounds
mentioned above with respect to access to certain places as mentioned in this clause. Moving
further, clauses third , fourth and fifth are exceptions to clauses one and two because there are
scope of discrimination in favor of certain groups of the society like women, children and
socially and educationally backward classes etc. Clause third is of utmost relevance because
under this clause the state is empowered to make any special provision in favor of women and
carrying out a permissible departure from the hardship of the clause one. Clause three exempts
the state from the fetters of clause one and set it free to do some affirmative action in favor of

30 AIR 1955 SC 334.

17
women to strengthen and empower them. So, a minute analysis of the clause third yields that a
provision for the employment of women can be done under this clause itself. The collective
understanding of the clauses one and three is suggestive of the fact that the discrimination can be
done only in favor of women and not against them. In Government of Andhra Pradesh v. P. B.
Vijay Kumar31, it was observed that a quota can be fixed for women in the government services,
and the rule providing for thirty percent quota for women was held to be valid. The history
attached with clause four simply says that it was inculcated by the parliament to nullify the effect
of the judgment in state of Madras v. Champakam Dorairajan 32 .in this case the government
order provided a scheme of allocation of seats in the medical colleges which was based on caste
and community the government order was held to be unconstitutional because it classified
students merely on the basis of caste and religion irrespective of their merit. This judgment was
looked upon as a difficulty in the way of helping the backward classes because by and large it
provided reservation to all the castes and communities. So immediately after this judgment,
clause four was added by the first constitutional amendment. Clause four embodies the principle
of protective discrimination but at the same time it should stand the test of reasonableness and it
should also be consistent with the ultimate public interest and the interest of the society at large.
This principle cannot be invoked to protect someone who has been convicted, for the remission
of the punishment, who belongs to the sc or ST class because it cannot be held to be helpful in
their advancement.

In M. R. Balaji v. State of Mysore33, the scope of clause four was further analyzed and it was
observed that it is an enabling provision and does not put any obligation on the state to move
forward for the affirmative action or the positive discrimination for that matter, in favor of the
socially and educationally backward ,SCs and STs. The fifth clause which was added by the
ninety third amendment , says that the state is empowered to make special provisions in favor of
the above mentioned three classes of the society that is the socially and educationally backward,
SCs and STs for their advancement by providing for their admissions in the education
institutions including private institutions whether aided or un-aided but the minority educational

31 AIR 1995 SC 1648.

32 AIR1951 SC 226.
33 AIR 1963 SC 649.

18
institutions established under article 30(1) were not to be affected by it. Now to make the clause
fifth more effective, the central government enacted the central educational institutions
(reservation in admission) act,2006 which provided a quota of twenty seven percent for the
candidates belonging to the other backward castes in all central higher educational institutions
including the IITs and IIMs. In Ashok Kumar Thakur v. UOI 34, the Hon’ble Supreme Court
upheld the validity of both the amendment as well the act. The direction was also given to the
government to exclude the creamy layer while implementing the law. The idea of exclusion of
the concept of creamy layer to the SCs and STs was again upheld in the Indra Sawhney
judgment. The remarkable point in the Ashok Kumar case was that no opinion was given on the
issue whether the creamy layer should or should not be applicable to the SCs or STs ,reason
being the sole focus was on the OBCs. But in a latter pronouncement in M. Nagraj v. UOI, the
Supreme Court took the view that the concept of “creamy layer” should be applied to the SCs
and STs also.

2.3 Equality of opportunity in public employment: Article 16

The workers are employed in various kinds of establishments in our country which may be
primarily categorized into public and private sectors. Under this article it has been stated that the
state will not discriminate in case of public employment on the ground of religion, race, caste,
sex, place of birth, descent or residence that is to say that there will be an equality of opportunity
in the case of employment in factories, mines and other establishments. The special reference
must be made to the clause four of the Article 16 whish says that the state can make provisions
with respect to the employment in public services for the benefit of any backward class of the
society which has not been represented appropriately in the opinion of the state. So the eligibility
to become a beneficiary under this clause one has to fulfill two criteria namely backwardness and
the inadequacy in representation in the opinion of the state. The semantics of the clause says that
the expression “any backward class” includes the SCs and STs also. The one remarkable thing is
that this article does not confer any right on any person to claim reservation , rather it is an
enabling provision and gives a kind of discretion on the state to come forward with the policy of
reservation. The distinction between the caste and class is also of a great import because a caste

34 (2008) 6 SCC 1.

19
per se cannot be backward or forward. There must be some attributes of backwardness in any
caste like “inadequacy of representation” in the opinion of the state etc., to be attached with it
and then only it becomes eligible as a backward caste for the purposes of reservation in
government services under clause four of this article. Taking in mind the advancement of the
backward classes in the society, this clause must be given the widest possible interpretation but
at the same time reservation should not be excessive because of two reasons namely Article 335
and 16(4) which is an exception of clauses one and two of the same article. But clause four
should not be given such an interpretation so that it destroys the effect of clause one. In the
interpretation, there must be a reconciliation between clause four and clause one. On the other
hand Article 335 talks about the efficacy of administration meaning thereby that the state should
consider the claims of SCs and STs in the making of appointments but it should be consistent
with the efficiency of the administration. In Balaji 35 case, it was further opined that the
expression caste cannot be the only ground to examine whether that particular class is a
backward class or not. The Hon'ble Supreme Court relied on Balaji Judgment and held that more
that 50 percent reservation in a particular year will be unconstitutional because it destroys the
efficiency of clause one of the article sixteen. It was further opined that the interests of the other
communities in the society must not be ignored or denied in the name of advancement of the SCs
and STs. In Devadasan case it was further observed that clause four is an exception to clause one
but it should not be interpreted in such a way that it destroys the meaning of clause one. So, the
reservation should be less than fifty percent , but the ambiguity remained as in how much less
that fifty percent should be the limit. Later on , in Indra Sawhney case it was observed that the
carry forward rule is valid to the extent that the reservation does not cross the limit of fifty
percent in a particular year. So, Devadasan was overruled on the point of carry forward rule
because Devadasan could not fix the limit of reservation, rather it simply said that the
reservation should be less than fifty percent but the point that “how much less than fifty percent”
was not addressed.

In state of Kerala v. N.M. Thomas 36, the supreme court held that a preferential treatment is
permissible under clause in favor of SCs and STs, independent of clause four, that means clause
35 AIR 1963 SC 649.
36 AIR 1976 SC 490.

20
for is not an exception to clause one. So, the Balaji and Rangachari both were overruled on this
point that clause four is an exception to clause one. Justice Subba Rao in his dissenting opinion
in Devadasan had opined that clause four is not an exception to clause one, rather the intent of
the legislature was to formulate a devise under clause four by which the framers of the
constitution had sought to preserve the power unaffected by the other provisions of the same
article. So, clause four was a facet of the clause one and not its exception.

In Indra Sawhney v. UOI37, clause four was elaborately analyzed and it was held that the
decision of the central government to reserve twenty seven percent seats for the OBCs in
government services, was constitutionally valid. It was recommended by the Mandal commission
that apart from the SCs and STs, there is a group of population which weigh up to fifty two
percent of the total population which is the OBCs. In 1990, the Mandal recommendation was
implemented by the central government.

CONCLUSION

The positive discrimination in India takes various contexts in various situations like women,
children , disabled, workers, aged people etc. But the most prominent facet of affirmative action
by the state includes inter alia, the “policy of reservation”. So, it became pertinent for the
purpose of this dissertation to discuss all the relevant provisions. So the policy of reservation
requires a special focus here, I will be dealing with it at length. So, it became pertinent for the
purpose of this dissertation to discuss all the relevant provisions. So the policy of reservation
requires a special focus here, I will be dealing with it at length as below:

CHAPTER 3

POLICY OF RESERVATON AND SCOPE OF POSITIVE DISCRIMINATION:

37 AIR 1993 SC 477.

21
3.1 The Genesis of the Law of Reservation in India

The idea of reservation has been the main concern from the time of its beginning in India. I will
be discussing it later on in this chapter after we look into some important points which cannot be
ignored when we study the genesis of the law of reservation. The constitution of India has
elaborate provisions dealing with reservations which forms the part of the right to equality as a
fundamental right.40 The provisions forming the part of fundamental right itself explains the
importance of reservation as a tool to bring about equality in all five dimensions of an individual
existence vis-a-vis the political, economic, social, cultural and educational dimensions. However
the constitution gave the prime importance to the socio-educational dimension because these two
synergistically can further the other dimensions too.

The Indian constitutionalism envisages equality with all its different connotations . Equality as a
concept as well as a principle goes well with the policy of the government but when it comes to
its real implementation, a reluctance always problematizes the issue. The reservation as a matter
of policy has contributed tremendously in the upliftment of the weaker sections of the society.
Different possible instruments have been used to achieve the goals of the affirmative action of
the state. The real problem arises with the question of the implementation of this policy the
deviation from being an instrument of equality to be an instrument of the politics, must be
addressed by the policy makers of our country.

The policy of reservation can only be understood if we will be able to comprehend the reason as
to why the policy of reservation was introduced in the Indian Constitution. Now , at this juncture
the concept and the basic idea of the institution of caste in the Indian society becomes central in
understanding it becomes imperative to understand its roots and its ramifications in our society.
The history of caste system is crucial in understanding the concept of reservation. The idea of
caste is older that the idea of caste. The findings of the scholars regarding the emergence and the
growth of the caste system and the policy of reservation in India has not been coherent and
unanimous.

The importance of the deep study of the institution of the caste in our society is very important
because caste can be a sole basis for the grant of the benefits of the policy of reservation and also

22
it is very important to study the problems and the social stigma that is attached to the caste
system. Therefore following is a brief of caste as understood by scholars:

(1) Mr. Nesfield defines a caste as "a class of the community which disowns any connection
with any other class and can neither intermarry nor eat nor drink with any but persons of their
own community ".

(2) Dr. Ketkar defines caste as " a social group having two characteristics : (i) membership is
confined to those who are born of members and includes all persons so born; (ii) the members
are forbidden by an inexorable social law to marry outside the group ".38

The division of society into classes, though to some extent hereditary in character, was
unavoidable in the early stages of the evolution of society.39 When the Aryans entered India,
they had outgrown the stage of tribal endogamy among themselves and there were only three
primitive functional divisions of priest, warrior and artisan. Therefore it was a “tri-varnic”
society which indicated a particular function and a way of living. The clash between the Aryan
invaders and the aboriginal inhabitants of India accentuated not only the cultural but even the
occupational and functional divisions. A fourth class, the shudras came into being. The society
became “chaturvarnic”. The priestly class or the Brahmins were the intellectual and spiritual
leaders. It was believed that learning and spiritual knowledge were esoteric virtues and their
cultivation needed exclusive attention. The original idea of Varna, as indicating a particular
social function and a distinct level of culture, gave way to the idea of a divinely ordained
division of society. The doctrines of transmigration, karma, and the theory of mayor illusion
were brought to the aid of the social system and made to sustain an iniquitous and undemocratic
social order, imposed by a powerful and influential minority on the majority of the population. 40

38 CASTES IN INDIA Their Mechanism, Genesis and Development, Anthropology Seminar of Dr. A. A.
Goldenweizer atThe Columbia University, New York, U.S.A. on 9th May 1916 Source: Indian Antiquary, May
1917, VOl. XLI
39 JagjivanRam,Caste Challenge in India,Vision Books Pvt. Ltd, New Delhi,1980, p 9
40 ibid
44
Ambedkar, B.R, Untouchables or The Children of India’s Ghetto” in DrBabasahebAmbedkar Writings and
Speeches, vol.5, Bombay, Government of Maharashtra, 1989,

23
That the Hindu Civilization is the most ancient, one can understand and even allow. one only
wishes that the Hindu realized that it was a matter for which there was more cause for shame
than pride.44

If we go into the genesis of caste system and the persistence of it then we would find it
entrenched in the smallest unit of the society called the village. The village communities are little
republics having nearly everything they want within themselves and almost independent of any
foreign relations.41 The village communities remain the same. In times of trouble they arm and
fortify themselves. A generation may pass away, but the succeeding generation will return. In
adopting this view of the Indian village, the Hindus have not done any justice to their
intelligence or their understanding. They have merely exhibited the weakness common to all
subjects.

3.2 Development of Reservation Policy

The government of India Act 1858 and the Indian Councils Act of 1861 and 1892 did not
recognize the special claims of the depressed classes. Even the Government of India Act of 19o9,
which conferred special safeguards and privileges on the Muslims, did not give representation to
the depressed classes in the legislative bodies. The Montford Report (1918) recognized only the
claims of the Sikhs, and to them alone, extended the system already adopted in the case of
Mohamdans.

41 http://www.yourarticlelibrary.com/essay/village-community-in-modern-india/3516O/

24
a) Congress Resolution of 1917

Based on these resolutions the Indian national congress for the first time, adopted a resolution for
removing all the disabilities historically imposed upon the depressed classes and to provide them
their long overdue of justice and equality, in its Calcutta session of 1917. In specific terms, the
resolution read as:- "This Congress unglues upon the people of India the necessity, justice and
righteousness of removing all disabilities imposed by custom upon the Depressed Classes, the
disabilities being of a most vexatious and oppressive character, subjecting those classes to
considerable hardship and inconvenience."42

The President of the session was Mrs. Annie Besant. The resolution was moved by Mr. G. A.
Natesan of Madras and was supported by Mr. Bhulabhai Desai from Bombay, by Mr. Rama Iyer
from Malalbar and by Mr. Asaf Ali from Delhi. In moving the resolution, Mr. Natesansaid :—

"Ladies and Gentlemen, —This question has been receiving great attention for years in other
platforms; but in view of the unique character of this Congress, the Subjects Committee thought
it necessary, after having framed a scheme of self-government for India, that we should complete
that by asking us to prepare ourselves for the task of self-government. In attempting to elevate
ourselves and in trying to remove these galling restrictions we are but elevating Indian manhood;
and when Responsible self-government is to be given to us we shall be in a position to say that
Indians of all classes, of all creeds, have the fullest rights, the commonest social rights, have free
access to all schools, to all institutions so that Indian manhood may develop in all its truest, best
and noblest traditions."43

Mr. Bhulabhai Desai in supporting the resolution pointed out that:—

"The disabilities under which some of our brethren suffer are a great blow to the equality and
brotherhood of man that we preach. From the great height of the resolution that you have passed
this morning, with what face will we approach the British Democracy or any other power if we
are unable to uplift our own brethren? They will say 'What lies in your own power, the

42Ambedkar, B.R, What Congress and Gandhi have done to the Untouchables, Selected Works of Dr. B. R
43ibid

25
obliteration of the social degradation of a section of your own people, you have been unable to-
do !' We can do it by self-help and by self-help alone and in this matter we need not approach
any other power but ourselves. That proves the necessity of the great forward step that this
Congress has taken in allowing this resolution to be moved before you. The existence of this
great bane is an insult to the name of Hinduism."44

Dr. B .R. Ambedkar has taken the view that this congress resolution of 1917 was not passed
because of some spiritual motive but was rather a calibrated political move on the part of the
congress to garner the support of the depressed classes for the Congress-League Scheme and to
wrap it under the cover of a National Demand. To quote Dr. Ambedkar:

"It is obvious that there is a close inter-connection between the resolution passed by the
Depressed Classes at their meeting in Bombay under the chairmanship of Sir Narayan
Chandavarkar and the Congress resolution of 1917 on the elevation of the Depressed Classes.
This inter-connection will be easily understood by adverting to the political events of the year
1917. Leading Indian politicians were expecting some such declaration of policy on the part of
His Majesty's Government and were preparing schemes for changes in the constitutional
structure of India in anticipation of such a policy. of the many schemes that were formulated,
there were two around which public attention was centered. one was called "the Scheme of the
Nineteen."

This explains the genesis of the Congress Resolution of 1917 on the Depressed Classes and its
inter-connection with the Resolutions of the Depressed Classes passed under the Chairmanship
of Sir Narayan Chandavarkar. This explanation proves that there was an ulterior motive behind
the Congress Resolution. That motive was not a spiritual motive. It was a political motive.45

3.3 Government Of India Act 1919

As was expected the congress resolution of 1917 could not achieve much in ensuring political
representation to the depressed classes. It was however the Franchise Committee (1918-1919)

44Ambedkar, B.R, What Congress and Gandhi have done to the Untouchables, Selected Works of Dr. B. R
45Ambedkar, B.R, What Congress and Gandhi have done to the Untouchables, Selected Works of Dr. B. R

26
which , while recognizing the claim of depressed classes favored the system of nomination in
place of election as the most expedient and practical method of political representation to them.
Thereafter, the Government of India Act 1919 became the first piece of legislation in the
recorded history of India to recognize the claims of depressed classes for political representation
in as much as, among the 14 non-official members nominated by the governor general to the
central legislative assembly one was to be the representative of the depressed classes. In the
provincial legislatures the depressed classes were represented by 4 nominees in the central
provinces ,2 in Bombay , 2 in Bihar and one each in Bengal and united provinces. in madras 1o
nominated members represented 9 specified depressed classes. Thus it was only after the act of
1919, that the depressed classes acquired the status of an important political entity which could
not be overlooked in any future scheme of constitutional reforms.

(a) The round table conference

In the Government of India Act of 1919, there was a provision which had imposed an obligation
on, His Majesty's Government to appoint at the end of ten years a Royal Commission to
investigate into the working of the Constitution and report upon, such changes as may be found
necessary. Accordingly, in 1928 a Royal Commission was appointed under the Chairmanship of
Sir John Simon. Indians expected that the Commission would be mixed in its personnel. But
Lord Birkenhead who was then the Secretary of State for India was opposed to the inclusion of
Indians and insisted on making it a purely Parliamentary Commission. At this, the Congress and
the Liberals took great offence and treated it as an insult. They boycotted the Commission and
carried on a great agitation against it. To assuage this feeling of opposition it was announced, by
His Majesty's Government that after the work of the Commission was completed representative
Indians would be assembled for a discussion before the new constitution for India is settled. In
accordance with this announcement representative Indians were called to London at a Round
Table Conference with the Representatives of Parliament and of His Majesty's Government.

On the 12th November 1930, His late Majesty King George V formally inaugurated the Indian
Round Table Conference. From the point of view of Indians the Round Table Conference was an
event of great significance. Its significance lay in the recognition by His Majesty's Government

27
of the right of Indians to be consulted in the matter of framing a constitution for India. For the
Untouchables it was a landmark in their history. For, the Untouchables were for the first time
allowed to be represented separately by two delegates . This meant that the Untouchables were
regarded not merely a separate element from the Hindus but also of such importance as to have
the right to be consulted in the framing of a constitution for India.

The work of the Conference was distributed among nine committees. one of these committees
was called the Minorities Committee to which was assigned the most difficult work of finding a
solution, of the Communal question. When the Round Table Conference met, the political
demands of communities other than the Untouchables were quite well known. Indeed the
Constitution of 1919 had recognized them as statutory minorities and provisions relating to their
safety and security were embodied in it. In their case the question was of expanding those
provisions or altering their shape. With regard to the Depressed Classes the position was
different. The Montagu-Chelmsford Report which preceded the Constitution of 1919 had said in
quite unmistakable terms that provision must be made in the Constitution for their protection.

But unfortunately when the details of the Constitution were framed, the Government of India
found it difficult to devise any provisions for their protection except to give them token
representation. Then a memorandum was submitted formulating the safeguards deemed
necessary by the Untouchables for their protection against the tyranny and oppression to the
Minorities Committee of the Round Table Conference.

3.4 Constitution of the Lothian Committee with a Special Mandate to Accommodate the
Political Demands of the Depressed Classes

The Prime Minister thought it advisable to have the question of franchise for the new
constitution examined by a Committee and accordingly, in December 1931 he appointed a
Committee with the late Lord Lothian as its Chairman . The Committee started its work early in
January 1932. For doing its work the Committee took the help of the Provincial Governments
and of the Provincial Franchise Committees consisting of non-officials specially constituted for
that purpose province by province. The Committee issued questionnaires. They were replied to
by the Provincial Governments, by the Provincial Franchise Committees and by individuals.

28
Witnesses were examined by the Committee sitting with each Provincial Franchise Committee.
The Provincial Governments and the Provincial Committees submitted their reports separately to
the Committee. They were discussed by the Committee with the Provincial Government and the
Provincial Committee before it came to its own conclusion. Besides the general tasks assigned to
the Lothian Committee, it had a special task with which it was charged by the Prime Minister. It
had relation, to the political demands of the Untouchables which the Prime Minister had referred
to in the following terms in his letter of instruction to the Chairman :—

"It is evident from the discussions which have occurred in various connections in the Conference
that the new constitution must make adequate provision for the representation of the Depressed
Classes, and that the method of representation by nomination is no longer regarded as
appropriate. As you are aware, there is a difference of opinion whether the system of separate
electorates should be instituted for the Depressed Classes and your committee's investigations
should contribute towards the decision of this question by indicating the extent to which the
Depressed Classes would be likely, through such general extension of the franchise as you may
recommend, to secure the right to vote in ordinary electorates. on the other hand, should it be
decided eventually to constitute separate electorates for the Depressed Classes, either generally
or in those provinces in which they form a distinct and separable element in the population, your
Committee's inquiry into the general problem of extending the franchise should place you in
possession of facts which would facilitate the devising of a method of separate representation for
the Depressed Classes."

Following upon, these instructions, it became the task of the Committee to come to some
conclusion as to the total population, of the Untouchables in British India. In the United
Provinces, the Census Commissioner in 1931 had estimated the total population of the
Untouchables at 12.6 millions, the Provincial Government at 6.8 millions but the Provincial
Franchise Committee at .6 millions only!! In Bengal, the Census gave the figures of 1o.3
millions, Provincial Government fixed it as 11.2 millions but the Provincial Committee at 7
millions only.46

46Ambedkar, B.R, What COngress and Gandhi have dOne tO the UntOuchables, Selected WOrks Of Dr. B.
R Ambedkar, sOurce: http://drambedkarbOOks.wOrdpress.cOm

29
3.5 Communal Award 1932

The major development in favor of the depressed classes was the communal award which gave a
nod for adequate representation for the depressed classes in the legislature. The text of the award
is as follows:

In the statement made by the Prime Minister on 1st December last on behalf of His Majesty's
Government at the close of the second session of the Round Table Conference, which was
immediately afterwards endorsed by both Houses of Parliament, it was made plain that if the
communities in India were unable to reach a settlement acceptable to all parties on the
communal questions which the Conference had failed to solve, His Majesty's Government were
determined that India's constitutional advance should not on that account be frustrated, and that
they would remove this obstacle by devising and applying themselves a provisional scheme. On
the 19th March last His Majesty's Government, having been informed that the continued failure
of the communities to reach agreement was blocking the progress of the plans for the framing of
a new Constitution, stated that they were engaged upon a careful re-examination of the difficult
and controversial questions which arise. They are now satisfied that without a decision of at least
some aspects of the problems connected with the position of minorities under the new
Constitution, no further progress can be made with the framing of the Constitution.

His Majesty's Government have accordingly decided that they will include provisions to give
effect to the scheme set out below in the proposals relating to the Indian Constitution to be laid
in due course before Parliament. The scope of this scheme is purposely confined to the
arrangements to be made for the representation of the British Indian communities in the
Provincial Legislatures, consideration of representation in the Legislature at the Centre being
deferred for the reason given in paragraph 20 below. The decision to limit the scope of the
scheme implies no failure to realize that the framing of the Constitution will necessitate the
decision of a number of other problems of great importance to minorities, but has been taken in
the hope that once a pronouncement has been made upon the basic questions of method and
proportions of representation the communities themselves may find it possible to arrive at modus
vivendi on other communal problems, which have not received the examination they require.

30
His Majesty's Government wish it to be most clearly understood that they themselves can be no
parties to any negotiations which may be initiated with a view to the revision of their decision,
and will not be prepared to give consideration to any representation aimed at securing the
modification of it which is not supported by all the parties affected. But they are most desirous to
close no door to an agreed settlement should such happily be forthcoming. It is intended that
these constituencies should be formed in selected areas where the depressed classes are most
numerous, and that, except in Madras, they should not cover the whole area of the Province.47

3.6 The Poona Pact, 1932

The government's decision was accepted by Gandhiji and he continued to communicate with the
British premier requesting him to revise the decision. As Macdonald was not ready to waive his
decision, Gandhiji started his fast unto death on the scheduled date 20 September 1932. After
negotiation between Gandhiji and Dr. Ambedkar the POONA PACT came out.

The following is the text of the agreement:—

(1) There shall be seats reserved for the Depressed Classes out of the general electorate seats
in the Provincial Legislatures as follows: Madras 30 ; Bombay with Sind 15 ; Punjab 8;
Bihar and Orissa 18 ; Central Provinces 20 ; Assam 7 ; Bengal 30 ; United Provinces 20 ;
Total 148.

These figures are based on the total strength of the Provincial Councils, announced in the Prime
Minister's decision.

(2) election to these seats shall be by joint electorates subject, however, to the following
procedure :All the members of the Depressed Classes, registered in the general electoral
roll in a constituency, will form an electoral college, which will elect a panel of four
candidates belonging to the Depressed Classes for each of such reserved seats, by the

47 Ambedkar, B.R, What COngress and Gandhi have done to the Untouchables, Selected Works Of Dr. B. R
Ambedkar, source: http://drambedkarbooks.wordpress.com

31
 method of the single vote ; the four persons getting the highest number of votes in such
primary election shall be candidates for election by the general electorate.

(3) representation of the Depressed Classes in the Central Legislature shall likewise be on the
principle of joint electorates and reserved seats by the method of primary election in the
manner provided for in Clause 2 above, for their representation in the provincial
Legislatures.

(4) In the Central Legislature, eighteen per cent of the seats allotted to the general electorate
for British India in the said legislature shall be reserved for the Depressed Classes.

The terms of the Pact were accepted by Mr. Gandhi and given effect to by government by
embodying them in the government of India Act. The POONA Pact had produced different
reactions. The untouchables were sad. They had every reason to be. There are, however, people
who do not accept this. They never fail to point out that the Poona Pact gave the untouchables
larger number of seats than what was given to them by the Prime Minister in his communal
Award. It is true that the Poona Pact gave the untouchables 148 seats, while the Award had only
given them 78. But to conclude from this that the POONA Pact gave them more than what was
given by the Award is to ignore what the Award had in fact given to the untouchables.

In all India Scheduled caste conference in 1942, it was adopted that provision shall be made by
law for the representation Of the Scheduled Castes On all Public Service commissions, Central
and provincial."48

48Ambedkar, B.R, What COngress and Gandhi have dOne tO the UntOuchables, Selected WOrks Of Dr. B.
R Ambedkar, sOurce: http://drambedkarbOOks.wOrdpress.cOm

32
3.7 The Constituent Assembly Debates : Minority Vs Backward Classes

The question of reservation in services was handled by the constituent assembly in the most
vacillating manner. In the initial stages of the framing of the constitution the opinion was in
favor of continuation of the policy of reservation to services to minority communities. The report
of the advisory committee on minorities under the chairmanship of Sardar Vallabhbhai Patel in
1947 had made a recommendation which reflected this opinion. The committee while rejecting
the constitutional guarantee of representation in the public services to the minorities proportion
to their population recommended that " consistent with the need of efficiency in administration,
it is necessary for the state it is necessary for the state to pay due regard to the claims of
minorities in making appointments to the public services. The advisory committee on minorities
later on modified its view in regard to claims of religious minorities in making appointments in
services. The negotiations proceeded on the footing that except backward classes who are
socially and economically backward and scheduled castes and tribes who have special claim of
their own no other minority should be recognized. The constituent assembly was unmistakably
opposed to the policy of reservation of posts for the minorities with the exception of the Anglo-
Indian community. However it was not against the policy of reservation in favor of the backward
classes and scheduled castes and scheduled tribes. Mr. Damodar Swarupseth maintained that it is
not easy to define precisely the term backward; nor it is easy to find a suitable criterion for
testing the backwardness of the community or class...it will give rise to castes and favoritism
which should have nothing to do in a secular state. Dr. Ambedkar defended the policy of
reservation in favor of backward classes as presently embodied in the constitution and argued
that it reconciled three points of views expressed in the constituent assembly; "the first is that
there shall be equality of opportunity for all citizens. Thus the constitution while adopting the
general principle of non-discrimination based on religion caste etc, has been made an exception
in so far as scheduled castes, tribes and backward classes are concerned.

3.8 The Judicial Approach and Contribution to Reservation Policy

The judiciary has been instrumental in the development and refining of the law as to reservation
and in the process has covered all its aspects in a comprehensive and holistic manner. From time

33
to time, various constitutional amendments have been brought about by the legislature to negate
some of these decisions- some of which (the constitutional amendments) have again landed in
courts in a challenge to their constitutional validity. This entire process has added color and
content to the law of reservation, probably like none other field of jurisprudence. We will
consider, in the present chapter, the development of law as to reservation by judicial
pronouncements along the following lines-

34
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(a) whether the ‘provision’ in article 16(4) must necessarily be made by the
parliament/legislature?

In M R Balaji v State of Mysore a constitution bench of Supreme Court has taken the view that
the "provision" under article 15(4) can be made by executive also. It need not necessarily be a
legislative action. Though the case deals with article 15(4), it is also an authority for article
16(4).

It is true that the constitution contemplates the appointment of a commission whose report and
recommendations can be of assistance to the authorities concerned for taking adequate steps for
the advancement of backward classes, but this does not mean that the appointment of the
commission and the subsequent steps that would follow it are a condition precedent to any action
being taken under Art. 15 (4).the special provisions contemplated under Art. 15 (4) can be made
by the union or the states by an executive order. It cannot be said that the president alone can
make special provision for the advancement of the backward classes.49

In Indri Sawhney v Union of India, a nine judge bench affirmed the dicta laid down in Balaji
case in its application to Article 16(4) also, in the following terms:-

This aspect would become clearer if we notice the definition of "law" in article 13(3)(a). It reads:
13(3) in this article, unless the context otherwise requires,(a) "law" includes any ordinance,
order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the
force of law. In such a situation, it would be unreasonable and inappropriate to insist that
reservation in all these services should be provided by parliament/legislature. The situation and
circumstances of each of these bodies may vary. The rule regarding reservation has to be framed
to suit the particular situations. All this cannot reasonably be done by parliament/legislature.
Even textually speaking, the contention cannot be accepted. The very use of the word
"provision" in article 16(4) is significant. Whereas clauses (3) and (5) of article 16 - and clauses
(2) to (6) of article 19 - use the word "law", article 16(4) uses the word "provision". Regulation

49 AIR 1963 SC 649

35
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of service conditions by orders and rules made by the executive was a well known feature at the
time of the framing of the constitution. Probably for this reason, a deliberate departure has been
made in the case of clause (4). Accordingly, we hold, agreeing with Balaji, that the "provision"
contemplated by article 16(4) can also be made by the executive wing of the union or of the
state, as the case may be, as has been done in the present case. Balaji has been followed recently
in COMPTROLLER AND AUDITOR GENERAL OF INDIA V. MOHAN LAL
MALHOTRA . With respect to the argument of abuse of power by the political executive, we
may say that there is adequate safeguard against misuse by the political executive of the power
under article 16(4) in the provision itself. Any determination of backwardness is not a subjective
exercise nor a matter of subjective satisfaction. As held herein - as also by earlier judgments - the
exercise is an objective one. Certain objective social and other criteria has to be satisfied before
any group or class of citizens could be treated as backward. If the executive includes, for
collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of
fraud on power.50
(b) whether clause (4) of article 16 is an exception to clause (1)

In M. R. Balaji v State of Mysore, a constitution bench of the Apex Court took the view that
Article 15(4) is an exception to Article 15(1) and went on to hold that :-

Article 15(4) provides that 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. This article was
added by the constitution (first amendment) act '1951. The object of this amendment was to
bring Articles 15 and 29 in line with Art. 16(4). It will be recalled that in the case of the State of
v. Srimathi Champakam Dorairajan(1) the validity of the government order issued by the Madras
government fixing certain proportions in which students seeking for admissions to the
engineering and medical colleges in the state should be admitted, was challenged. The said
government order was on the face of it a communal order fixing the admissions in the stated
proportion by reference to the communities of. The candidates this order was struck down by the
50 AIR 1993 SC 477

36
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Madras High Court and the decision of the Madras High Court was confirmed by this court in
appeal, on the ground that the fundamental rights guaranteed by Articles 15(1) and 29(2) were
not controlled by any exception, and that since there was no provision under Art. 15
corresponding to Art. 16(4), the impugned order could not be sustained. It was directly as a
result of this decision that Art. 15 was amended and Art. 15(4) was added. Thus, there is no
doubt that Art. 15(4) has to be read as a proviso or an exception to articles 15(1) and 29(2). In
other words, if the impugned order is justified by the provisions of art. 15(4), its validity cannot
be impeached on the ground that it violates art. 15(1) or art.29(2). The fundamental rights
guaranteed by the said two provisions do not affect the validity of the special provision which it
is permissible to 'make under Art. 15(4).51

Again in T. Devdasan vs Union of India, a constitutional bench decision, the majority speaking
through Mudholkar J, affirmed the dicta laid down in Balaji to the effect that article 16(4) is an
exception to article 16(1). However, Subba Rao J. , in his dissenting opinion took a considered
view that article 16(4) was not an exception to article 16(1), rather one of the aspects of equality
enshrined in the article. The expression "nothing in this article" is a legislative device to express
its intention in a most emphatic way that the power conferred there under is not limited in any
way by the main provision but falls outside it. It has not really carved out an exception, but has
preserved a power untrammeled by the other provisions of the article.52
In N. M. Thomas vs State of Kerala, a seven judge bench affirmed the dicta laid down by Subba
Rao J, in Devdasan case and overruled the majority opinion therein in the following words:-

It is true that there are some authorities of this court to the effect that clause (4) is an exception to
art. 16(1) but with due respect I am not in a position to subscribe to this view for the reasons that
I shall give hereafter. In the first place if we read art. 16(4) as an exception to art. 16 (1) then the
inescapable conclusion would be that art. 16(1) does not permit any classification at all because
an express provision has been made for this in clause (4). This is, however, contrary to the basic

51 AIR 1963 SC 649

52 AIR 1964 SC 179

37
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concept of equality contained in art. 14 which implicitly permits classification in any form
provided certain conditions are fulfilled. Furthermore, if no classification can be made under art.
16(1) except reservation contained in clause (4) then the mandate contained in art. 335 would be
defeated. I have already observed that the fundamental guarantees provided by the constitution
have to be read in harmony with the directive principles contained in part IV

Clause (4) merely puts the matter beyond any doubt in specific terms. Regarding the view
expressed in Balaji and Devadasan, it must be remembered that at that time it was not yet
recognized by this court that article 16(1) being a facet of article 14 does implicitly permit
classification. Once this feature was recognized the theory of clause (4) being an exception to
clause (1) became untenable. It had to be accepted that clause (4) is an instance of classification
inherent in clause (1). Now, just as article 16(1) is a facet or an elaboration of the principle
underlying article 14, clause (2) of article 16 is also an elaboration of a facet of clause (1). If
clause (4) is an exception to clause (1) then it is equally an exception to clause (2). Question then
arises, in what respect is clause (4) an exception to clause (2), if 'class' does not means 'caste'.
Neither clause (1) nor clause (2) speak of class. Does the contention mean that clause (1) does
not permit classification and therefore clause (4) is an exception to it. Thus, from any point of
view, the contention of the petitioners has no merit.53

(c) Meaning of the term "reservation"

The term reservation is nowhere defined in the constitution as such. However a nine judge bench
of the apex court gave a comprehensive and authoritative definition of the same in Indra
Sawhney v Union of India to the following effect.

The meaning and content of the expression "reservation" has to be ascertained having regard to
the context in which it occurs. The relevant words are "any provision for the reservation of
appointments or posts." the question is whether the said words contemplate only one form of
provision namely reservation simplicitor, or do they take in other forms of special provisions like
preferences, concessions and exemptions. In our opinion, reservation is the highest form of
53 AIR 1993 SC 477

38
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special provision, while preference, concession and exemption are lesser forms. The
constitutional scheme and context of article 16(4) induces us to take the view that larger concept
of reservations takes within its sweep all supplemental and ancilliary provisions as also lesser
types of special provisions like exemptions, concessions and relaxations, consistent no doubt
with the requirement of maintenance of efficiency of administration - the admonition of Article
335. The several concessions, exemptions and other measures issued by the railway
administration and noticed in Karamchari Sangh are instances of supplementary, incidental and
ancillary provisions made with a view to make the main provision of reservation effective i.e., to
ensure that the members of the reserved class fully avail of the provision for reservation in their
favor. The other type of measure is the one in Thomas. There was no provision for reservation in
favor of scheduled castes/scheduled tribes in the matter of promotion to the category of upper
division clerks. Certain tests were required to be passed before a lower division clerk could be
promoted as upper division clerk. A large number of lower division clerks belonging to S.C./S.T.
Were not able to pass those tests, with the result they were stagnating in the category of L.D.C.S.
Rule 13aa was accordingly made empowering the government to grant exemption to members of
S.C./S.T. From passing those tests and the government did exempt them, not absolutely, but only
for a limited period. This provision for exemption was a lesser form of special treatment than
reservation. There is no reason why such a special provision should not be held to be included
within the larger concept of reservation. It is in this context that the words "any provision for the
reservation of appointments and posts" assume significance. The word "any" and the associated
words must be given their due meaning. They are not a mere surplus age. It is true that in
Thomas it was assumed by the majority that clause (4) permits only one form of provision
namely reservation of appointments/posts and that if any concessions or exemptions are to be
extended to backward classes it can be done only under clause (1) of article 16. In fact the
argument of the writ petitioners (who succeeded before the Kerala high court) was that the only
type of provision that the state can make in favor of the backward classes is reservation of
appointments/posts provided by clause (4) and that the said clause does not contemplate or
permit granting of any exemptions or concessions to the backward classes. This argument was

39
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accepted by Kerala high court. This court, however, by a majority (Ray,C.J., Mathew, Krishna
Iyer and Fazal Ali, JJ.) Reversed the view taken by Kerala high court, holding that such
exemptions/concessions can be extended under clause (1) of article 16. Beg, J. Who joined the
majority in exemption provided by impugned notification was indeed a kind of reservation and
was warranted by and relatable to clause (4) of article 16 itself. This was because - according to
the learned judge - clause (4) was exhaustive of the provisions that can be made in favor of the
backward classes in the matter of employment. We are inclined to agree with the view taken by
Beg, J. For the reasons given hereinabove. In our opinion, therefore, where the state finds it
necessary - for the purpose of giving full effect to the provision of reservation to provide certain
exemptions, concessions or preferences to members of backward classes, it can extend the same
under clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full
availment of provisions for reservation can be provided as part of concept of reservation itself.

(d) whether article 16(4) is exhaustive of the concept of reservations in favor of backward
classes?

Answering this question in affirmative the apex court gain in Indra Sawhney maintained that :-

..in a given situation, the state may think that in the case of a particular backward class it is not
necessary to provide reservation of appointments/posts and that it would be sufficient if a certain
preference or a concession is provided in their favor. This can be done under clause (4) itself. In
this sense, clause (4) of article 16 is exhaustive of the special provisions that can be made in
favor of "the backward class of citizens". Backward classes having been classified by the
constitution itself as a class deserving special treatment and the constitution having itself
specified the nature of special treatment, it should be presumed that no further classification or
special treatment is permissible in their favor apart from or outside of clause (4) of article 16.

(e) whether article 16(4) is exhaustive of the very concept of reservations?

40
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In Indra Sawhney a nine judge bench of the supreme court, took pains to distinguish between
article 16(4) being exhaustive of reservation in favor of the backward classes while not being
exhaustive of the concept of reservation as such, in the following terms :-

The aspect next to be considered is whether clause (4) is exhaustive of the very concept of
reservations? In other words, the question is whether any reservations can be provided outside
clause (4) i.e., under clause (1) of article 16. There are two views on this aspect. On a fuller
consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be,
exhaustive of the concept of reservations; it is exhaustive of reservations in favor of backward
classes alone. Merely because, one form of classification is stated as a specific clause, it does not
follow that the very concept and power of classification implicit in clause (1) is exhausted
thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It
is in very exceptional situations, and not for all and sundry reasons - that any further
reservations, of whatever kind, should be provided under clause (1). In such cases, the state has
to satisfy, if called upon, that making such a provision was necessary (in public interest) to
redress a specific situation. The very presence of clause (4) should act as a damper upon the
propensity to create further classes deserving special treatment. The reason for saying so is very
simply. If reservations are made both under clause (4) as well as under clause (1), the vacancies
available for free competition as well as reserved categories would be correspondingly whittled
down and that is not a reasonable thing to do.63
(f) meaning of the expression "backward class of citizens" in article 16(4)

In M. R. Balaji v State of Mysore which was essentially a case on Article 15(4) the Apex Court
held that what was required under that article was social and educational backwardness,
maintaining that :-

In considering the scope and extent of the expression "'backward classes' under art. 15(4), it is
necessary to remember that the concept of backwardness is not intended to be relative in the
sense that any classes who arc backward in relation to the most advanced classes of the society

41
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should be included in it. If such relative tests were to be applied by reason of the most advanced
classes, there would be several layers or strata of backward classes and each one of them may
claim to be included under art. 15(4). This position is not disputed before us by the learned
advocate- general for the state. The backwardness under art. 15(4) must be social and
educational. It is not either social or educational but it is both social and educational; and that
takes us to the question as to how social and educational backwardness has to be determined.64

63
ibid
64
1963 AIR 649
In P. Rajendran case it was held that "a caste is also a class of citizens and if the caste as a whole
is socially and educationally backward reservation can be made in favor of such a caste on the
ground that it is a socially and educationally backward class of citizens within the meaning of
article 15(4).... It is true that in the present case the list of socially and educationally backward
classes has been specified by caste. But that does not necessarily mean that caste was a sole
consideration and that persons belonging to these castes are also not a class of socially and
educationally backward citizens."65this principle was reiterated in Peeriakarupan. Balram and
Trilokinath-ii.

This issue was gone into in some detail in Vasant Kumar, where all the five judges constituting
the constitution bench expressed different opinions. Chandrachud,CJ. Did not express himself on
this aspect but other four learned judges did. Desai, J. recognized that "in the early stages of the
functioning of the constitution, it was accepted without dissent or dialogue that caste furnishes a
working criterion for identifying socially and educationally backward class of citizens for the
purpose of article 15(4)." he also recognized that "there has been some vacillation on the part of
the judiciary on the question whether the caste should be the basis for recognizing the
backwardness." after examining the significance of caste in the Indian social structure, the
learned judge observed: social hierarchy and economic position exhibit an indisputable
mutuality. The lower the caste, the poorer its member. The poorer the members of a caste, the
lower the caste. Caste and economic situation, reflecting each other as they do are the deusexma

42
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China of the social status occupied and the economic power wielded by an individual or class in
rural society. Social status and economic power are so woven and fused into the caste system in
Indian rural society that one may without hesitation, say that if poverty be the cause, caste is the
primary index of social backwardness, so that social backwardness is often readily identifiable
with reference to a person's caste. The learned judge also recognized that caste system has even
penetrated other religions to whom the practice of caste should be anathema. He observed: so
sadly and oppressively deep-rooted is caste in our country that it has cut across even the barriers
of religion. The caste system has penetrated other religious and dissentient Hindu sects to whom
the practice of caste should be anathema and today we find that practitioners of other religious
faiths and Hindu dissentients are sometimes as rigid adherents to the system of

65
1968 AIR 1012
caste as the conservative Hindus. We find Christians Harijans, Christian Madars, Christian
Reddys, Christian Kammas, Mujbi Sikhs, etc. Etc. In Andhra Pradesh there is a community
known as pinjarsordudekulas (known in the north as 'ruipinjanewala'): (professional cotton
beaters) who are really Muslims but are treated in rural society, for all practical purposes, as a
Hindu caste. Several other instances may be given. Having thus noticed the pernicious effects of
the caste system, the learned judge opined that the only remedy in such a situation is to devise a
method for determining social and educational backward classes without reference to caste. He
stressed the significance of economic criterion and of poverty and concluded that a time has
come when the economic criterion alone should be the basis for identifying the backward
classes. Such an identification has the merit of advancing the secular character of the nation and
will tend towards nullifying caste influence, said the learned judge.66

E.S. Venkataramiah ,J. Too dealt with this aspect at some length. After examining the origins of
the caste and the ugly practices associated with it, the learned judge opined: an examination of
the question in the background of the Indian social conditions shows that the expression
'backward classes' used in the constitution referred only to those who were born in particular
castes, or who belonged to particular races or tribes or religious minorities which were

43
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backward. The learned judge then referred to the debates in the constituent assembly on draft
article 1o and other allied articles, including the speech of Dr. Ambedkar and observed thus the
whole tenor of discussion in the constituent assembly pointed to making reservation for a
minority of the population including scheduled castes and scheduled tribes which were socially
backward. During the discussion, the constitution (first amendment) bill by which article 15(4)
was introduced, Dr. Ambedkar referred to article 16(4) and said that backward classes are
'nothing else but a collection of certain castes. This statement leads to a reasonable inference that
this was the meaning which the constituent assembly assigned to classes' at any rate so far as
Hindus were concerned.67

In Indra Sawhney, the nine judge bench while maintaining that a caste can be taken as a starting
point for identification of a backward class, went on to hold that the exercise of the

66
1985 AIR 1495
67
ibid
identification should not stop at caste alone but should also cover other backward sections and
groups. To quote from the relevant paragraph:-

In our opinion too, the words "class of citizens - not adequately represented in the services under
the state" would have been a vague and uncertain description. By adding the word "backward"
and by the speeches of Dr. Ambedkar and Sri K.M. Munshi, it was made clear that the "class of
citizens...not adequately represented in the services under the state" meant only those classes of
citizens who were not so represented on account of their social backwardness. Reference can
also be made in this context to the speech of Dr. Ambedkar in the parliament at the time the first
amendment to the constitution was being enacted. It must be remembered that the parliament
which enacted the first amendment was the very same constituent assembly which framed the
constitution and Dr. Ambedkar as the minister of law was piloting the bill. He said that backward
classes "are nothing else but a collection of certain castes". (the relevant portion of his speech is

44
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referred to in papa 32) and that it was for those backward classes that article 15(4) was being
enacted.

Indeed, there are very good reasons why the constitution could not have used the expression
"castes" or "caste" in article 16(4) and why the word "class" was the natural choice in the
context. The constitution was meant for the entire country and for all time to come. Non-Hindu
religions like Islam, Christianity and Sikh did not recognize caste as such though, as pointed out
hereinabove, castes did exist even among these religions to a varying degree. Further, a
constitution is supposed to be a permanent document expected to last several centuries. It must
surely have been envisaged that in future many classes may spring-up answering the test of
backwardness, requiring the protection of article 16(4). It, therefore, follows that from the use of
the word "class" in article 16(4), it cannot be concluded either that "class" is antithetical to
"caste" or that a caste cannot be a class or that a caste as such can never be taken as a backward
class of citizens. The word "class" in article 16(4), in our opinion, is used in the sense of social
class - and not in the sense it is understood in Marxist jargon.54

The Apex Court went on to hold that :-

The above material makes it amply clear that a caste is nothing but a social class - a socially
homogeneous class. It is also an occupational grouping, with this difference that its membership
is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that
occupation, still he remains and continues a member of that group. To repeat, it is a socially and
occupationally homogenous class. Endogamy is its main characteristic. Its social status and
standing depends upon the nature of the occupation followed by it. Lowlier the occupation,
lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste
nexus is true even today. A few members may have gone to cities or even abroad but when they
return - they do, barring a few exceptions they go into the same fold again. It doesn't matter if he
has earned money. He may not follow that particular occupation. Still, the label remains. His

54 AIR 1963 SC 477.

45
 o
identity is not changed. For the purposes of marriage, death and all other social functions, it is
his social class - the caste that is relevant. It is a matter of common knowledge that an
overwhelming majority of doctors, engineers and other highly qualified people who go abroad
for higher studies or employment, return to India and marry a girl from their own caste. Even
those who are settled abroad come to India in search of brides and bridegrooms for their sons
and daughters from among their own caste or community. As observed by Dr. Ambedkar, a caste
is an enclosed class and it was mainly these classes the constituent assembly had in mind though
not exclusively - while enacting article 16(4). Urbanization has to some extent broken this caste-
occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber
by caste continues to do the same job - may be, in a shop (hair dressing saloon). A washerman
ordinarily carries on the same job though he may have a laundry of his own. May be some others
too carry on the profession of barber or washer man but that does not detract from the fact that in
the case of an over-whelming majority, the caste-occupation nexus subsists. In a rural context, of
course, a member of barber caste carrying on the occupation of a washerman or vice versa would
indeed be a rarity - it is simply not done. There, one is supposed to follow his caste occupation,
ordained for him by his birth. There may be exceptions here and there, but we are concerned
with generality of the scene and not with exceptions or aberrations. Lowly occupation results not
only in low social position but also in poverty; it generates poverty. 'Caste-occupation-poverty'
cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centers,
there may be some dilution. But since rural India and rural population is still the overwhelmingly
predominant fact of life in India, the reality remains. All the decisions since Balaji speak of this
'caste-occupation-poverty' nexus. The language and emphasis may very but the theme remains
the same this is the stark reality notwithstanding all our protestations and abhorrence and all
attempts at weeding out this phenomenon. We are not saying it ought to be encouraged. It should
not be. It must be eradicated. That is the ideal - the goal. But any programme towards betterment
of these sections-classes of society and any programmed designed to eradicate this evil must
recognize this ground reality and attune its programme accordingly. Merely burying our heads in
the sand - ostrich-like - wouldn't help. One cannot fight his enemy without recognizing him. The
U.S. Supreme Court has said repeatedly, if race be the basis of discrimination past and present -

46
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race must also form the basis of redressal programmes though in our constitutional scheme, it is
not necessary to go that far. Without a doubt, an extensive restructuring of socio-economic
system is the answer. That is indeed the goal, as would be evident from the preamble and part iv
(directive principles). But we are concerned here with a limited aspect of equality emphasised in
article 16(4) - equality of opportunity in public employment and a special provision in favor of
backward class of citizens to enable them to achieve it.55

(g) whether clause (4) of article 16 provides reservation only in the matter of initial
appointments/direct recruitment or does it contemplate and provide for reservations being
made in the matter of promotion as well?

In Rangachari case, a constitutional bench of the Apex Court took the view that article 16(4) also
includes reservation in promotions. To quote the learned judge:-

Reservation in the case of promotion is normally provided only where the promotion is by
selection, i.e., on the basis of merit. For, if the promotion is on the basis of seniority, such a rule
may not be called for; in such a case the position obtaining in the lower category gets reflected in
the higher category (promotion category) also. Where, however, promotion is based on merit, it
may happen that members of backward classes may not get selected in the same proportion as is
obtaining in the lower category. With a view to ensure similar representation in the higher
category also, reservation is thought of even in the matter of promotion based on selection. This
is, of course, in addition to the provision for reservation at the entry (direct recruitment) level.

55 AIR 1963 SC 477

47
This was the position in Rangachari. Secondly, there may be a service/class/category, to which
appointment is made partly by direct recruitment and partly by promotion (i.e., promotion on the
basis of merit). If no provision is made for reservation in promotions, the backward class
members may not be represented in this category to the extent prescribed. We may give an
illustration to explain what we are saying. Take the category of assistant engineers in a particular
service where 50% of the vacancies arising in a year are filled up by direct recruitment and 50%
by promotion (by selection i.e., on merit basis) from among junior engineers. If provision for
reservation is made only in the matter of direct recruitment but not in promotions, the result may
be that members of backward classes (where quota, let us say, is 25%) would get in to that extent
only in the 50% direct recruitment quota but may not get in to that extent in the balance 50%
promotion quota. It is for this reason that reservation is thought of even in the matter of
promotions, particularly where promotions are on the basis of merit.56

However Indra Sawhney a nine judge bench overruled the law laid down in Rangachari holding
that:-

We find it difficult to agree with the view in Rangachari that article 16(4) contemplates or
permits reservation in promotions as well. It is true that the expression "appointment" takes in
appointment by direct recruitment, appointment by promotion and appointment by transfer. It
may also be that article 16(4) contemplates not merely quantitative but also qualitative support to
backward class of citizens. But this question has not to be answered on a reading of article 16(4)
alone but on a combined reading of article 16(4) and article 335.

Reservation of appointments or posts may theoretically and conceivably means some impairment
of efficiency;" but then it explains it away by saying "but the risk involved in sacrificing
efficiency of administration must always be borne in mind when any state sets about making a
provision for reservation of appointments of posts." we see no justification to multiply 'the risk',
which would be the consequence of holding that reservation can be provided even in the matter
of promotion. While it is certainly just to say that a handicap should be given to backward class
of citizens at the stage of initial appointment, it would be a serious and unacceptable inroad into

56 AIR 1962 SC 36

48
the rule of equality of opportunity to say that such a handicap should be provided at every stage
of promotion throughout their career. That would mean creation of a permanent separate
category apart from the mainstream - a vertical division of the administrative apparatus. The
members of reserved categories need not have to compete with others but only among
themselves. There would be no will to work, compete and excel among them. Whether they
work or not, they tend to think, their promotion is assured. This in turn is bound to generate a
feeling of despondence and 'heart-burning' among open competition members. All this is b und
to affect the efficiency of administration. Putting the members of backward classes on a fast-
track would necessarily result in leap-fogging and the deleterious effects of "leap-fogging" need
no illustration at our hands. At the initial stage of recruitment reservation can be made in favor of
backward class of citizens but once they enter the service, efficiency of administration demands
that these members too compete with others and earn promotion like all others; no further
distinction can be made thereafter with reference to their "birth-mark", as one of the learned
judges of this court has said in another connection. They are expected to operate on equal footing
with others. Crutches cannot be provided throughout one's career. That would not be in the
interest of efficiency of administration nor in the larger interest of the nation. It is wrong to think
that by holding so, we are confining the backward class of citizens to the lowest cadres. It is
well-known that direct recruitment takes place at several higher levels of administration and not
merely at the level of class-IV and class-III. Direct recruitment is provided even at the level of
all India services. Direct recruitment is provided at the level of district judges, to give an
example nearer home. It may also be noted that during the debates in the constituent assembly,
none referred to reservation in promotions; it does not appear to have been within their
contemplation. It is true that Rangachari has been the law for more than 30 years and that
attempts to re-open the issue were repelled in Karamchari Sangh. It may equally be true that on
the basis of that decision, reservation may have been provided in the matter of promotion in
some of the central and state services but we are convinced that the majority opinion in
Rangachari, to the extent it holds, that article 16(4) permits reservation even in the matter of
promotion, is not sustainable in principle and ought to be departed from.57

57 AIR 1993 SC 477

49
Parliament enacted the constitution (seventy-seventh amendment) act, 1995. By the said
amendment, article 16(4a) was inserted, which reintroduced reservation in promotion.

3.9 Constitution (seventy-seventh amendment) act, 1995

Clause (4a) to article 16 was inserted: “(4-a) nothing in this article shall prevent the state from
making any provision for reservation in matters of promotion to any class or classes of posts in
the services under the state in favor of the scheduled castes and the scheduled tribes which, in the
opinion of the state, are not adequately represented in the services under the state.”

This amendment negated the legal position laid down in Indra Sawhney case with respect to
reservation in promotions, but only in relation to SCs and STs. The dicta in Sawhney however
holds with respect to the OBCs.

Article 16(4a) came for interpretation before the Apex Court in Virpal Singh Chauhan, Ajit
Singh(i) and Ajit Singh (ii) case where the court though agreeing in principle with the
amendment, laid down catch-up rule in promotions to the effect that the seniority of the roster
point promotee who took advantage of accelerated promotion under article16(4a) should be
governed by his panel position alone.

The concept of "catch-up" rule appears for the first time in the case of Virpal Singh Chauhan in
which it was held that :-

There is no uniform method of providing reservation. The extent and nature of reservation is a
matter for the state to decide having regards to the facts and requirements of each case. It is open
to the state, if so advised, to say that while the rule of reservation shall be applied, the candidate
promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over
seniors in the feeder category and that it is open to the state to interpret the 'catch-up' rule in the
service conditions governing the promotions [see: Para 24]. Thirdly, this court did not agree with
the view expressed by the tribunal [in Virpal Singh Chauhan1] that a harmonious reading of
clauses (1) to (4) of article 16 should mean that a reserved category candidate promoted earlier
than his senior general category candidates in the feeder grade shall necessarily be junior in the
promoted category to such general category. This court categorically ruled, vide Para 27, that

50
such catch-up principle cannot be said to be implicit in clauses (1) to (4) of article 16 (emphasis
supplied). Lastly, this Court found on facts that for 11 vacancies, 33 candidates were considered
and they were all SC/ST candidates. Not a single candidate belonged to general category. It was
argued on behalf of the general candidates that all top grades stood occupied exclusively by the
reserved category members, which violated the rule of equality underlying articles 16(1), 16(4)
and 14. This court opined that the above situation arose on account of faulty implementation of
the rule of reservation, as the railways did not observe the principle that reservation n must be in
relation to 'posts' and not 'vacancies' and also for applying the roster even after the attainment of
the requisite percentage reserved for SCs/STs. In other words, this court based its decision only
on the faulty implementation of the rule by the railways which the court ordered to be rectified.58

In Ajit Singh (i), the controversy which arose for determination was whether after the members
of scs/sts for whom specific percentage of posts stood reserved having been promoted against
those posts, was it open to the administration to grant consequential seniority against general
category posts in the higher grade. This court observed that the 'catch-up' rule was a process
adopted while making appointments through direct recruitment or promotion because merit
cannot be ignored. This court held that for attracting meritorious candidate a balance has to be
struck while making provisions for reservation. It was held that the promotion is an incident of
service. It was observed that seniority is one of the important factors in making promotion. It
was held that right to equality is to be preserved by preventing reverse discrimination. Further, it
was held that the equality principle requires exclusion of extra-weightage of roster-point
promotion to a reserved category candidate (emphasis supplied). This court opined that without
'catch-up' rule giving weightage to earlier promotion secured by roster-point promotee would
result in reverse discrimination and would violate equality under articles 14, 15 and 16.
Accordingly, this court took the view that the seniority between the reserved category candidates
and general candidates in the promoted category shall be governed by their panel position.
Therefore, this court set aside the factor of extra-weightage of earlier promotion to a reserved
category candidate as violative of articles 14 and 16(1) of the constitution.

58 AIR 1996 SC 448

51
16(4) and 16(4a) are only enabling provisions and, therefore, the interests of the reserved classes
must be balanced against the interests of other segments of society. As a remedial measure, the
court held that in matters relating to affirmative action by the state, the rights under articles 14
and 16 are required to be protected and a reasonable balance should be struck so that the
affirmative action by the state does not lead to reverse discrimination.

However to negate the catchup rule evolved by the judiciary through these decisions, the
parliament came out with the eighty fifth constitutional amendment act:

The Constitution (Eighty-fifth Amendment) Act, 2001: “(4-a) nothing in this article shall prevent
the state from making any provision for reservation in matters of promotion, with consequential
seniority, to any class to any class or classes of posts in the services under the state in favor of
the scheduled castes and the scheduled tribes which, in the opinion of the state, are not
adequately represented in the services under the state.

The Constitutional validity of this 85th Amendment Act along with the 77th Amendment came
for consideration before a 7 judge bench in m nagraj case. Upholding the validity of the said
amendments, the apex court held that;-

Reading the above judgments, we are of the view that the concept of 'catch-up' rule and
'consequential seniority' are judicially evolved concepts to control the extent of reservation. The
source of these concepts is in service jurisprudence. These concepts cannot be elevated to the
status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by
insertion of the concept of 'consequential seniority' the structure of article 16(1) stands destroyed
or abrogated. It cannot be said that 'equality code' under article 14, 15 and 16 is violated by
deletion of the 'catch-up' rule. These concepts are based on practices. However, such practices
cannot be elevated to the status of a constitutional principle so as to be beyond the amending
power of the parliament. Principles of service jurisprudence are different from constitutional
limitations. Therefore, in our view neither the 'catch-up' rule nor the concept of 'consequential
seniority' are implicit in clauses (1) and (4) of article 16 as correctly held in
virpalsinghchauhan.59
59 AIR 2007 SC 71

52
Clause (4a) follows the pattern specified in clauses (3) and (4) of article 16. Clause (4a) of article
16 emphasizes the opinion of the states in the matter of adequacy of representation. It gives
freedom to the state in an appropriate case depending upon the ground reality to provide for
reservation in matters of promotion to any class or classes of posts in the services. The state has
to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4a) of
article 16 is an enabling provision. It gives freedom to the state to provide for reservation in
matters of promotion. Clause (4a) of article 16 applies only to scs and sts. The said clause is
carved out of article 16(4). Therefore, clause (4a) will be governed by the two compelling
reasons "backwardness" and "inadequacy of representation", as mentioned in article 16(4). If the
said two reasons do not exist then the enabling provision cannot come into force. The state can
make provision for reservation only if the above two circumstances exist. Further in ajitsingh
(ii)3 , this court has held that apart from 'backwardness' and 'inadequacy of representation' the
state shall also keep in mind 'overall efficiency' (article 335). Therefore, all the three factors have
to be kept in mind by the appropriate government by providing for reservation in promotion for
SCs and STs.

(i) The carry Forward rule.

This rule which was stuck down by a constitutional bench in T. Devdasan case was nevertheless
upheld by a nine judge bench in indrasawhney case to the extent that its application in a
particular case does not reach the 50% limit any particular year, combining both the fresh and
the backlog vacancies for determining the 50 % criteria.

This legal has since been negated by the Constitutional 81st Amendment act:

3.10 The Constitution (Eighty-first Amendment) Act, 2000

Clause (4B) to article 16 was inserted: “(4B) nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are reserved for being filled up in that year in
accordance with any provision of reservation made under clause (4) or clause (4A) as a separate
class of vacancies to be filled up in any succeeding year or years and such class of vacancies

53
shall not be considered together with the vacancies of the year in which they are being filled up
for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

The validity of the said Amendment was again upheld in the M. Nagaraj case on the following
terms:-

By clause (4B) the "carry-forward"/"unfilled vacancies" of a year is kept out and excluded from
the overall ceiling-limit of 50% reservation. The clubbing of the backlog vacancies with the
current vacancies stands segregated by the constitution (Eighty-First Amendment) Act, 2000 .
The constitution (Eighty-First Amendment) Act, 2000 gives, in substance, legislative assent to
the judgment of this court in R.K. Sabharwal8. Once it is held that each point in the roster
indicates a post which on falling vacant has to be filled by the particular category of candidate to
be appointed against it and any subsequent vacancy has to be filled by that category candidate
alone then the question of clubbing the unfilled vacancies with current vacancies do not arise.
Therefore, in effect, Article 16(4B) grants legislative assent to the judgment in R.K. Sabharwal8.
If it is within the power of the State to make reservation then whether it is made in one selection
or deferred selections, is only a convenient method of implementation as long as it is post based,
subject to replacement theory and within the limitations.60

(j) Whether relaxation of marks in promotion with respect to backward classes in Article 16(4)
permissible?

In the case Of S. Vinod Kumar and another v. Union of India and others this court held that
relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion
was not permissible under Article 16(4) in view of Article 335 Of the constitution. This was also
the view in Indra Sawhney. By the constitution (Eighty-second Amendment) Act, 2000, a
proviso was inserted at the end of Article 335 Of the constitution which reads as under:

60ibid

54
3.11 The Constitution (Eighty-second Amendment) Act, 2000

A proviso was inserted at the end of Article 335 of the constitution which reads: “provided that
nothing in this article shall prevent in making of any provision in favor of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any
examination or lowering the standards of evaluation, for reservation in matters of promotion to
any class or classes of services or posts in connection with the affairs of the union or of a State.”

The constitutional validity of the said amendment was again upheld in M. Nagraj case in the
following terms;-

This proviso was added following the benefit of reservation in promotion conferred upon SCs
and STs alone. This proviso was inserted keeping in mind the judgment of this court in vinod
Kumar21 which took the view that relaxation in matters of reservation in promotion was not
permissible under Article 16(4) in view Of the command contained in Article 335. Once a
separate category is carved out of clause (4) Of Article 16 then that category is being given
relaxation in matters of reservation in promotion. The proviso is confined to scs and sts alone.
The said proviso is compatible with the scheme of Article 16(4A61).

3.12 Insight into the Affirmative Action in Select Countries and Comparative Analysis
With India

(a) Affirmative action in USA

The concept of affirmative action originally ‘‘comes from the centuries-old English legal concept
of equity, or the administration of justice according to what was fair in a particular situation, as
opposed to rigidly following legal rules, which may have a harsh .Affirmative action, defined in
a statement by the United States Civil Rights Commission in 1977, is

‘‘a term that in a broad sense encompasses any measure, beyond a simple
termination of discriminatory practice, adopted to correct for past or present
discrimination or to prevent discrimination recurring in the future.’’62

61ibid

55
Affirmative action means more than passive nondiscrimination. It means that various
organisations must act positively, affirmatively and aggressively to remove all barriers, however
informal or subtle, that prevent access by minorities and women to their right ful places in the
employment and educational institutions of the United States. 63The United States of America
was built on a racial inequality of wealth, work, and social benefits. The fundamental
constitutions of carolinadrafted by english philosopher john locke in 1690 (although never
implemented) promised black subordination to white settlers:

‘‘every freeman of carolina, shall have absolute power and authority over negro slaves, of
what opinion or religion soever.’’64

The seizure of native american lands ‘‘supported white privilege through a system of property
rights in land. A consensus is emerging among historians which argues that, despite being
kidnapped, bought, sold, and shipped as slaves from africa, the actual status of the first africans
brought in chains to colonial america in 1619 was not yet fixed as being significantly different
from that of european indentured servants.

The 1661 virginia statutory recognition of slavery exempted africans who had already served
their indenture—the average for all servants being four to seven years. Yet a differential was
already being established: whites had never been enslaved, and only africans and indians could
be; and servants freed of indenture were on their own, while slaves represented free labor for
life.65

62 . Cited in James C. Foster and Mary C. Seegers, Elusive Equality: Liberalism, Affirmative Action, and
Social Change in America (Port Washington, NY: Associated Faculty Press, 1983), 143 n 1.
63 . Nijole V. Benokraitis and Joe R. Feagin, Affirmative Action and Equal Opportunity: Action, Inaction,
Reaction ,Boulder, Co: Westview Press, 1978, 1
64 Peter H. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono
Rebellion, New York: W.W. Norton, 1975, 18–19
65 Franklin and Moss, From Slavery to Freedom, ; Edmund S. Morgan, American Slavery, American
Freedom: The ordeal of Colonial Virginia (New York: Norton, 1975), 216–18, 328–31.
American Indians in Virginia were exempted frOm slavery in 1670, but after the 1676 Bacon’s Rebellion any
American Indian could be enslaved.

56
White-affirmative action could be said to have begun with the case of john punch in 164o in the
virginia colony. That was fifty-one years before ‘‘white’’ as a social status first appeared as a
legal description of europeanamericans in that colony and thirty-one years before the earliest

recording of its popular usage.100 this incident represents the first rec rded case of lifetime
bondage in this country and emerged in the form of differential racial punishment. Three
runaway indentured servants were involved: twoofeuropean and one of african descent. The
europeans received time added on to their servitude but eventually became free, while the
african, john punch, was sentenced to lifetime bondage.101

The virginia general assembly in 1691 forbade any owner of black bond-laborers to set them
free, and in fact the virginia colony council objected when a 1712 will of a slaveholder declared
his african slaves free. By 1723, blacks had lost the right to vote and were forbidden to strike or
threaten whites or to mate with them.102 by contrast, the 1705 virginia act concerning servants
and slaves specified freedom dues for ‘‘christian white servants’’ and forbade their beating by
masters without anorder from the justice of the peace. 103 beginning in late seventeenth and early
eighteenth-century virginia, maryland, and south carolina and extending throughout the south,
many freed white indentured servants became obliged along with their former masters and most
other white males to serve in special slave control militia units known as ‘‘the patrol’’ that could
violate slaves’ human rights with impunity.104

57
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recording of its popular usage. 100
this incident represents the first rec rded case of lifetime
bondage in this country and emerged in the form of differential racial punishment. Three
runaway indentured servants were involved: twoofeuropean and one of african descent. The
europeans received time added on to their servitude but eventually became free, while the
african, john punch, was sentenced to lifetime bondage.101

The virginia general assembly in 1691 forbade any owner of black bond-laborers to set them
free, and in fact the virginia colony council objected when a 1712 will of a slaveholder declared
his african slaves free. By 1723, blacks had lost the right to vote and were forbidden to strike or
threaten whites or to mate with them.102 by contrast, the 1705 virginia act concerning servants
and slaves specified freedom dues for ‘‘christian white servants’’ and forbade their beating by
masters without anorder from the justice of the peace. 103 beginning in late seventeenth and early
eighteenth-century virginia, maryland, and south carolina and extending throughout the south,
many freed white indentured servants became obliged along with their former masters and most
other white males to serve in special slave control militia units known as ‘‘the patrol’’ that could
violate slaves’ human rights with impunity.104

It would be pertinent here to consider the often-quoted apotheosis of nineteenth-century white

bigotry, united states supreme court chief justice roger taney, a historian of early whiteness. The
title of this chapter, in fact, is taken from taney’s infamous1857 dredscott decision where taney,

100
For the earliest colonial references to ‘‘whites’’ found in the writings of English Quakers on a missionary
tour of the American colonies, see Terrence W. Epperson, ‘‘Whiteness in Early Virginia,’’ Race Traitor:
Journal of the New Abolitionism 7 (winter 1997): 9–20.
101
. Jordan, White Over Black, 75, 93–98
John Hope Franklin said of this incident: “That was the beginning of discrimination.” John Minter,
‘‘Racism Benefits Whites: Franklin,’’ Charlotte (NC) Post, 30 October 1997, 1; and Allen, White Race,
Vol. 1, 235 n 17, 261 n 77
102
Allen, White Race, Vol. 2, 249–50
103 ibid
104
John Anthony Scott, ‘‘Segregation: A Fundamental Aspect of Southern Race Relations, 1800–1860,’’
Journal of the Early Republic 4, No.4 (winter 1984): 433–41; and Allen, White Race, Vol. 2, 252. See
Allen, White Race, Vol. 2, 361 n 85, on the Prospects of a ‘‘Financial Windfall’’ for whites who

58
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apprehended runaway slaves in the antebellum era. Allen’s source is Kenneth M. Stampp, The Peculiar
Institution: Slavery in the Ante-bellum South (New York: Knopf, 1956), 153. Also on slave patrols see
Wood, Black Majority, chapter 10; and Herbert Aptheker, American Negro Slave Revolts (New York:
International Publishers, 1974; 1943), 67–70
in siding with john sandford, the missouri owner of fugitive slave dredsctt, declared that ‘‘they
[africanameri cans] had no rights which the white man was bound to respect.’’ but this was much
more than mere racial prejudice. That declaration was intended as both a judgment and an
attempt, as taney himself said, to sum up ‘‘the public history of every european nation’’ who
ever treated blacks as an inferior caste and to resolve the question of black citizenship once and
for all.66 chief justice taney argued that it was obvious from looking at both colonial and
republican laws that no africanamericans had ever been intended citizen ship in any of the united
states (an erroneous assertion on taney’s part, as pointed out by justice benjamincurtis in his
dissent).67citizenship, taney de clared, was both implicitly and explicitly ‘‘white,’’ from new
hampshire’s militia laws to the united states naturalization law of 1790, which granted citizen
ship to ‘‘any alien, being a free white person.. . .’’ 68 his opinion was unequivocal: the words
‘‘people of the united states’’ and ‘‘citizens’’ are synonymous terms, and mean the same thing.. .
. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people,
and a constituent member of this sovereignty. The question before us is, whether the class of
persons described in the plea [africanamericans] . . . Compose a portion of this people.. . . We

66 Dred Scott v. Sandford, 60 U.S. 393 (1857).

The litigation was the result of Scott claiming free status after sandford had taken him into free territory. See
also Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New
York: Oxford University Press, 1978). Fehrenbacher notes that this case ‘‘was the Supreme Court’s first
Invalidation of a major federal law.’’ That law was the 1820 Missouri Compromise that created a dividing
line between free and slave states. See Franklin and Moss, from Slavery to Freedom, 178. Taney had been
President Andrew Jackson’s attorney general. Fehrenbacher, The Dred Scott Case, 340
67 McPherson in Battle Cry of Freedom, 172–79.
See also Dred Scott (1857). Free blacks did enjoy some tenuous citizenship privileges. As for the intent of the
‘‘Founding Fathers,’’ while there is some truth in what Taney asserts, this is also an assumption that
disregards ambiguous constitutional language that disguised the contradictions within Anglo-American
racial attitudes. See Alfred Avins, ed., The Reconstruction Amendments’ Debates: The Legislative History
and Contemporary Debates in Congress on the 13th, 14th, and 15th Amendments (Richmond: Virginia
Commission, 1967), for numerous debates over legislators’ interpretation of their intent regarding future
black citizenship.
68 Dred Scott (1857); and Allen, White Race, Vol.1, 185.
Allen also points out here that ‘‘the United States Constitution implicitly made immigration a white-skin
privilege, when in Article I, Section 9, Europeans were classed as migrants whilst Africans were classed as
imports.’’ After some experimenting, colonial Anglo-Americans finally reckoned free/slave and
white/black status through descent through the mother of any given child.

59
 o
think they are not, and that they are not included, and were not intended t be included, under the
word ‘‘citizens’’ in the constitution.108

It emerges from a close reading of this declaration (besides its inaccu racy) is not simple
exclusion of blacks from the citizenship norm, but also an aggressive activist posture that holds
that citizenship would be somehow devalued if it lost its white exclusivity, as would whiteness
itself. As morally appalling and false as taney’s words sound to us today—as they did to many
whoobjected at the time—we should also consider their popularity and acquiescence among
many white people at the time, both in the north and the south.109

The drawing up of the constitution by the american elite in philadelphia in 1787 (and its
subsequent ratification by the states in 1788) that was cited positively by taney as an affirmation
of white citizenship marked the culmination of a moral as well as a political compromise over
slavery that involved whites of all classes, both north and south.110 this is not to say that there

108
Dred Scott (1857).
See alsoFehrenbacher, The Dred Scott Case, 343, where he makes the following point regarding this quote
from Taney: ‘‘The gross inaccuracy of the final clause will be readily apparent. A large majority of
American citizens—namely, women and children—were not members of the sovereign people in the sense
of holding power and conducting the government through their representatives.. . . Citizenship and
sovereign power were far from synonymous.’’
109
Fehrenbacher, esp. chapters 1, 2, 15, and 18.
See also McPherson, Battle Cry of Freedom, 172-79.
Citizenship includes civic responsibilities, constitutional guarantees of suffrage, office holding, due process,
right to a jury trial, and jury and military service
110
See Derrick A. Bell Jr., And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Basic,
1987), 34 n–35 n, where he cites historian William Wiecek’s tally of eight accommodations to slavery
made in the Constitution, beginning with the most notorious One (Article I, Section 2) that apportioned
representatives in the House among the states based on population: all free per sons and three-fifths of the
slaves.
See also Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York:
Vintage, 1997), esp. chapter 4, 336–37.
Rakove found that delegates from the Northern states expressed more procedural than moral Objections to
slavery being accommodated in the Constitution, and they were unhappy with the prospect of counting
slaves as property for taxation purposes and as people for white voting purposes. But they accepted
compromise over slavery as ‘‘the price of union,’’ fearing that the delegates from the Southern
slaveholding states would walk out on the convention and the union if slavery was not safeguarded See

60
was noopposition to the denial of human rights to africanamericans. Some massachusetts town
councils, for example, had objected to this trend—like the town meetings in hardwick and essex
counties that voted by large majorities to request that the state constitutional convention declare:
‘‘all men, whites and blacks, are born free and equal.’’ 111protest petitions were also aggressively
brought forward by free blacks in that state. Nearly half a century later, one can see in the
proceedings of the 1835 north carolina state constitutional convention (four years after the nat
turner slave rebellion in virginia), one sees the ingrained identification of whiteness with
citizenship in the anger expressed by white delegates over ‘‘free colored’’ people enjoying any
citizenship rights at all—combined with doubt over how unfair that sounded.112

‘‘in 1778 the congress of the confederation twice refused to insert the word ‘white’ in the articles
of confederation in asserting that free inhabitants in each state should be entitled to all the
privileges and immunities of free citizens of the several states.’’113but the word ‘‘white’’ actually
does appear in this document—specifically in article viii under the provisions for a navy and
army ‘‘to make requisitions from each state for its quota, in proportion to the number of white
inhabitants.’’114the implication of an inherently ‘‘white citizenship’’ can be seen in the
combination of article viii with the ‘‘privileges and immunities’’ in article iv extended to ‘‘free
inhabitants’’ and ‘‘free citizens.’’115 land, citizenship, and military service were the exclusive
rights that legally made up this white republic in formation. This precedent having been set, the
constitution, conceived of as a permanent document as opposed to its predecessor, does not
deserve the compliment of utilizing ‘‘precise language’’ as much as it does the opprobrium of
using tor turedenglish in many instances. For example, article i, section 2.3, provides for
representatives to be elected ‘‘according to their respective numbers, which shall be determined

111
Adams, The First American COnstitutiOns, 176.
See also Higginbotham, In the Matter of Color
112
Proceedings and Debates of the Convention of North Carolina Called to Amend the Constitution of the
State.
113
Du Bois, Black Reconstruction,7
114
Edward Conrad Smith, ed., The Constitution of the United States, 11th ed. (New York: Barnes and Noble,
1979; 1936), 33.

61
(b) The pro and anti- reservation sentiments : An analysis

The issue of reservation has been one of great controversy in the politico administrative
framework of our country and has attracted much of the bad blood. A vast section of our society
is vehemently opposed to the continuance of the system of reservation as such and has gone to
the extent of labeling it as a measure of reverse discrimination. This section which now
constitutes the majority of the cross section of our society is of the considered opinion that the
system of reservation has long outlived its purpose and needs to be phased out. The criticality of
the situation can be adjudged from the fact that this opposition has transcended the boundaries of
constitutional measures and many vigilante groups have surfaced which deploy all possible
means including the use of outright force and violence. These groups have not only been
instrumental in opposing the policy of reservation as such but also seems to be actuated by a
much deeper malaise – the hatred and disaffection against the very attempt on the part of the
depressed or backward classes to assert their legitimate rights and interest and their efforts to lead
a dignified life even.

As early as 1930, Ambedkar presented an intuitive interpretation of the iron grip of the caste
system.

"a most recent event is reported from the village chakwara in jaipur state. It seems from the
reports that have appeared in the newspapers that an untouchable of chakwara who had returned
from a pilgrimage had arranged to give a dinner to his fellow untouchables of the village as an
act of religious piety. The host desired to treat the guests to a sumptuous meal and the items
served included ghee (butter). But while the assembly of untouchables was engaged in partaking
of the food, the hindus in their hundreds, armed with lathis, rushed to the scene, despoiled the
food and belabored the untouchables who left the food they were served with and ran away for
their lives. And why was this murder- ous assault committed on defenseless untouchables? The
reason given is that the untouchable host was imprudent enough to serve ghee and his
untouchable guests were foolish enough to taste it. Ghee is undoubtedly a luxury for the rich. But
noone would think that the consumption of ghee was a mark of high social status. The hindus of

62
chakwara thought otherwise and in righteous indignation avenged themselves for the wrong done
to them by the untouchables, who insulted them by treating ghee as an item of their food which
they ought to have known could not be theirs, consistently with the dignity of the hindus. This
means that an untouchable must not use ghee even if he can afford to buy it, since it is an act of
arrogance towards the hindus. This hap- penedon or about april 1,1936.69

Significantly, the social condition of the untouchables has not changed even after 66 years. In the
same chakwara village now, the dominant castes have allowed cattle but not the untouchables'
access to the pond there. This social boycott is the direct outcome of the attempt by dalits to
undertake a sadbhavnayatra (social harmony procession) on september 21, 2002 in chakwara,
which falls under the phagi tehsil of jaipur district in rajasthan. The yatra was organised to
highlight the evil practice of untouchability and discrimination against the scheduled castes and
to ensure social harmony. It is re- ported, "a fact-finding team of civil rights activists, which
visited chakwara village, demanded continued deployment of police forces to protect the area
under section 21 of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989.
More than 50 persons, including policemen, were injured when a march to highlight the evil
effects of untouchability and discrimination against the dalits was attacked in chakwara, where an
entire dalit community is being persecuted for asserting its right to bathe in the local public
pond".70

These incidents go to establish the historical fact that the scheduled castes do not even have basic
rights, including the right to decide on their diet. Nor are they considered equal to cattle to be
allowed access to public utilities like ponds, wells, etc.

The present situation of lawlessness and political uncertainty in the country emerging from the
government's decision to accept and implement the recommendations of mandal commission
makes a dispassionate discussion on the basic issues extremely difficult and almost irrelevant. It
may nevertheless be worthwhile toanalyse the issues as objectively as possible, the constraints of
the situation notwithstanding. Why did a government whose survival hangs so very precariously

69 Ambedkar Babasaheb (1987): Writings and Speeches, VOL I, Education Department, Government of
Maharashtra, pp 40-41
70 ‘Declare Phagi Tehsil as Atrocity-Prone', The Hindu, September 30, 2002, p 5

63
not merely on the outside support of the two parties with opposite ideological perspectives but
alsoon personal equations within its own party take this decision, the fall-outs of which are
threatening to strike at the very roots that sustain indian polity? Explaining it in terms of possible
electoral advantages would be naive because janata dal by antagonising its allies, the
bureaucracy, the press and all the rest in the country who matter cannot hope to remain in power
for long or form the next government. Those who had advanced this explanation are now arguing
that if indeed. This was government's calculation, it must clearly be a miscalculation. That the
decision was to meet the challenge posed by the dismissed deputy prime minister belongs to the
realm of conjectures and therefore cannot be discussed empirically. The real reason appears to be
somewhat different. The electoral process in the country, based to a large extent on caste politics,
has brought among the members of parliament and legislative assemblies in some of the northern
states a large number of persons belonging to backward castes-much more than at any other time
in the history of independent India. These elected representatives now naturally feel accountable
to their 'constituency' but find themselves totally helpless because the administrative machinery
through which these decisions are to be implemented have if anything, a strong upper caste bias.

Also the current protests are being held under the banner "youth for equality". What the
protesters really desire, though, is not equality but a continuance of entrenched social privilege
cloaked as "merit", and a denial of equality to the communities that comprise some 80 per cent of
india's population. Shamelessly enough, these beneficiaries of india's iniquitous social order
emblematise their impending doom by carrying brooms in hand, connoting their threatened
descent to the lowest order of street-sweepers. The irony escapes them that their so-called pursuit
of "equality" ought in fact to enjoin that they took time out to do some real-time sweeping, just to
feel how "those others" feel. As well as to live in the hinterland or among urban slums in order to
experience how life without clout, very next to islands of obscene prosperity, both deadens and
angers the soul. Such an experience would also bring home with a thud how "merit" is more
often than not a mere social construct and a function of the arrangement and control of both
physical resources, including nutrition, and enabling institutional practices.71

71 Badri Raina, Anti-Reservation Protest: Shoring up Privilege,Economic and Political Weekly, Vol. 41, No.
20 (May 20-26, 2006)

64
These elite protesters on the media shows exhibit their high merit by answering substantial
questions of fact and history with shrieks and howl a cultural attribute they routinely ascribe to
the backwards. For example, they simply drown out the terse truth that those among them who
routinely obtain admission to medical colleges despite forgettably abysmal percentages at school
leaving examinations as quid pro quo to hefty capitation moneys are, indeed, beneficiaries of a
system of reservations available only to the imbecile rich. That such a practice has never
occasioned protest among them goes without saying. Like- wise, they have never taken to the
streets to push the state to enhance its total al- location to education (which now, 60 years after
independence, stays at a miserable 3.5 per cent - one of the lowest even in the developing world,
whereas the prestigious kothari commission had stipulated a minimum of 6 per cent as far back
as 1966). Nor are they persuaded that the simple measure of increasing the total number of seats
to institutions of specialised learning could sort out the problem, if only a sustained movement
was conducted on the issue. When the state makes mandatory provisions of employment for
india's relegated social groups, our metropolitan mascots argue that the right thing is to make
educational opportunities available to these groups. And, when the state does precisely that, up
goes the cry that India is going to sink to the depths of oblivion. Nor will they answer the
question as to why it is that despite six decades of upper caste hegemony in all professional and
administrative sectors, all full of merit, the country remains at number 134 on the world's human
development index, cannot pro- vide drinking water to more than half its citizens, leaves an equal
number in the dark without electricity, rural infrastructure, healthcare or basic education. The
simple and unedifying fact is that unlike educated youth elsewhere - in france just recently they
led a movement as redolent as the one in 1968 to defeat the conservative government's market-
friendly. Policy to allow companies to "hire and fire" employees between the agesof 18 and 26
India's parasitical metropolitans reserve their primary concern for themselves. That even self-
interest should be socially enlightened is not a thesis they buy. Often accusing, through snide and
snigger, the backwards of being lawless, uncouth (because of negligible proficiency in english)
and violent, these english- speaking beneficiaries of india's glaringly iniquitous "development"
think nothing of flying lawlessly, uncouthly and violently in the face of the constitution and the
parliament at the. Least hint of any curtailment to the privilege they are born into.

65
The current against reservations is almost wholly a north-indian phenomenon with almost no
resonance in the southern states. In the southern states, thanks to memorable people's movements
during the early years of the 20th century, reservations have been in place since 1920. The result:
the vast majority of the meritorious professionals in the southern states come from backward
communities, including in the best medical institutions. And, by common consent, the southern
states also happen to be some of india's best administered regions.

Ever since the prime minister announced 27 per cent reservation to the obcs, the
antireservationists have been agitating in some of the major cities of India. This is not to
undermine the fact that agitation against obcs reservations under state governments , had already
started much earlier than the announcement of obcs reservation at the centre. It would be
pertinent here to consider a few of these agitations in somewhat detailed manner.

GUJARAT

In 1980s gujarat has witnessed the longest and bloodiest anti reservation movement. The decision
of the then gujarat chief minister mrsolanki to increase by 18 % the reservation in favor of obcs
has met with an unprecedented scale of anti reservation campaigns. The upper castes retaliated
with complete unanimity. The business community with all its mahajans called for closure of
business for 5 days- unprecedented event in pre India. The congress dissidents, with their
underlying upper caste bias accused solanki for inciting caste war. The students and parents
announced another gujarat bandh which subsequently acquired the distinction of unleashing the
worst communal riots.the campaign costedmrsolanki his chief ministership. The new entrant,
mramarsinghchaudhary unequivocally scrapped the 18%increase in reservation for obcs until a
national consensus on the same was arrived at.

ANDHRA PRADESH

The anti reservation campaign in andhrapradesh was more severe than that of gujarat. The
agitators had formed anorganisation called the andhrapradeshnavasangharshsamiti as well as a
parents association. The focus of their arguments had primarily been on merit, how it's is
destroyed by reservations and the harm done to the nation thereby. The image of the backward

66
caste deliberately set up and propagated by the agitationists happen to be that of worthless and
incompetent sneaking up from behind and depriving brilliant and deserving youth of college seats
and jobs and destroying the nations prospects of achieving greatness. Some of the slogans used
by them were quite offensive for instance in medical colleges, the agitationsers had put up
pictures depicting a backward class medical graduate removing a tooth instead of an eye and
soon and so forth. At the same time it was seen that the counter organisations floated by the
backward class were unable to unite and defend their rights.

BIHAR

The flames of the anti reservation stir which initially broke out in uttarpradesh, took barely a
couple of days to reach bihar. Students of various colleges of patna boycotted classes and put
roadblocks at several places for many hours at the state capital. Soon athe agitation broke out in
other parts of the state notably, muzaffarpur, chapra, gopalganj, purnia, arrah, buxar. The initial
demand of the anti reservationists was against extending reservation of seats in parliament and
state assembly for another ten years. However later they broadened their movement by
demanding car scrapping of the reservation system altogether. As the movement advanced it
became directed specifically against the recommendation of the mandal commission with wide
spread reports of arson and ransacking of governments property and offices coming in from
various parts of the state.

UTTAR PRADESH

In 1990s the move of the SP-BSP government to implement the 27 % reservation in education
and employment in favor of OBCs got seriously backfired in the hill district of uttarakhand were
bcs comprised only 2% of the population and hence the reservation policy held out the threat of
dominance from the plains. Despite occasional lulls, the movement showed no signs of abating
but had in fact acquired a spontaneous dimension, bordering on a "popular upsurge " with nearly
all sections of the population-employees traders professionals students etc throwing in their lot.
The major element had been the participation of women on a scale not seen since the days of
independence struggle.

67
Unfortunately the press has unleashed a tendentious campaign against the backward classes, sts
and scs. The slogans being raised by the anti- reservationists and some of the arguments put forth
by the press against the reservation policy itself are disturbing to all democratic- minded people.
A national debate relating to reservations is called for, focusing on the following issues:

(1) the whole rhetoric of 'merit' needs to be subjected to systematic and rational scrutiny. We
need not point out that the use of 'merit' as a criterion of exclusion has a long and dishonourable
history. Our colonial rulers, for example, were convinced that no indian had enough merit
tooccupy an administrative or judicial position. No indian judge, they argued, could be upright
this day, the first world strongly believes -that the third world is incapable of governing itself
forward by the anti-reservationists. What is today being purveyed as 'merit' is a narrowly
conceived and often irrelevant set of qualities. There is ample empirical evidence to indicate that
these qualities are-directly linked to the whole structure of privilege that perpetuates the
inequalities in our society. What exactly is the 'merit' possessed by persons who have scored high
marks in examinations? Does that person necessarily have the qualities that will make a good
doctor, a good engineer or a good teacher? Of what use to society at large isg a doctor who is
only good for taking up employment in a five-star diagnostic centreor a computerised clinic, here
or in the us? What is the use of an engineer who becomes an architect solely for the upper
classes, or only knows how to work in an advanced western country? Why should the poor forgo
their opportunity for education and employment in order to promote and preserve the rights of
such paragons of 'merit'? It seems to us that 'merit' today has been reduced to a measure of the
capacity for individual advancement. 'Merit' that is delinked from the masses does not remain
merit at all. How many persons now described as meritorious possess skills or characteristics
which are of use to the broad masses of people in this society? Ln the casteist rhetoric of the
antireservationists, it is frequently alleged that we cannot trust an engineer who graduates on
reservation to build a safe bridge or a building: but it can be wagered that if we make a list of
engineers who have built unsafe structures, it will turn out that most of them did not and-l-ha"hal
they lacked was not 'merit' but morality. And to what extent is the favoured conception of 'merit'
applied to jobs and assets in the private sector? Most property is owned by upper caste people not
because they possess 'merit' but because of accidents of birth and reasons of history. Will the
anti-reservationists agree to redistribute property according to the relative merit in managing it?

68
Shall we enact a law that the property of a man will not be inherited by his son, the practice of a
lawyer will not be passed on to his son or daughter, but to the most meri- torious person in the
neighbourhood? On what basis are jobs given in the private sector? 'Merit' or kinship and
recommendations, thereby again favouring the forward castes?

(2) The concept of reservation was initially formulated to restore rights to communities of
people who had been historically denied fundamental human rights on the basis of their caste.
The basic democratic principle of rights has now been completely lost sight of and the discussion
has degenerated intoone of concessions. Given the continuing exclusion of certain groups from
access to education, employment and participation in social and political life, is there any
mechanism other than community-based reservations which can help overcome centuries of
injustice? What is the role of violence institutional and otherwise-in keeping entire communities
subjugated? Surely the violence and injustice experienced by people are not because they claim a
caste identity for themselves, but because such an identity has been imposed on them. Who, then,
is responsible for maintaining and perpetuating casteism?

(3) the argument for using economic criteria as against caste as the basis for reservations has
been put forward. It is important to remember that the constitution of India guarantees
reservations based on social and educational backwardness not economic backwardness. The
former category must not be simply confused with the latter. Few people would be against
reservations based on economic criteria. But these cannot be regarded as a substitute for the
constitutionally guaranteed reservations. Reservations based solely on economic criteria deny the
existence of social and cultural oppression-deriving from caste position- which keeps people poor
and 'backward'.

(4) it is strange to see a political agitation which demands the withdrawal of rights won by
historically exploited groups. Instead of struggling for universal primary education and full
employment, and making that their demand, the middle and upper middle-classes, especially in
the urban areas, are agitating for the denial of equality toothers. The anti-reservationists in the
course of their agitation are using methods like boot-polishing, sweeping the roads and selling
vegetables. The press prominently displays photographs of young 'forward- caste' people doing
such tasks. In our view, such methods of agitation have two implications. One, it suggests that

69
there is a clear caste hierarchy of jobs. It develops a feeling among those who, in today's
iniquitous society, can only get such jobs that the jobs are meant solely for them. Do the agitators
mean that the upper castes should never do such jobs? Instead, should not full employment and
better wages for such jobs be demanded? Second, it is insulting for those who are engaged in
these jobs at present. If we do not have any respect for sweeping roads, what right do we have to
use the roads? If we have no respect for boot-polishing, what right do we have to wear shoes? If
we have no respect for those who sell vegetables, what right do we have to eat the vegetables?

(5) a section of the press is trying to prove that the mandal commission report is based on
unscientific collection of data. The collection of data on the question of caste and social and
economic backwardness of the indian people is a massive task. The mandal commission's
castebased data were taken from the 1931 census because that was the last time a caste-wise
census was conducted. The census planned for 1941 did not take place due to the outbreak of the
second world war and later enumeration of caste was constitutionally disallowed. The
commission supplemented the 1931 data with some sample surveys. It is true that at the
implementation stage there will be some problems in grading castes into groups. These
administrative problems have been overcome in states like ap where the reservations have been
in force for a long time. Secondly, the reservations have immensely helped the obcs. The claim of
some political parties that it is difficult to implement such quotas is only a political alibi for
inaction.

(6) many national political parties are now saying that they were not consulted before
announcing the implementation of the mandal commission recommendations. Was not the
implementation of these recommendations a part of the election manifestoof all the major
political parties? And the janata dal leaders who are now opposing the implementation, did they
record their dissent at the time this was incorporated in the janata dal manifesto? Did they have
no intention of ever implementing the report? Was this only a false promise? Why did
intellectuals who supported the janata dal vociferously before the elections not say at that time
that they would not support the implementation of the mc report? Did not these intellectuals
know what recommendations the report contained when they made their promises? Is it not

70
intellectual dishonesty to unleash a virulent campaign against the report and its author at this
stage after they have made use of it to win an election?

(7) the bias of the national press (with exceptions, of course) in dealing with the issue has
been alarming. What people expect from a democratic press is a balanced presentation of news
and facts and not rhetoric.72

The most popular argument against reservation is that it would encourage inefficiency which
already is high in our system. Irrespective of how the states with and without reservations for
other backward classes (Obcs) have performed with regard to their levels of efficiency in public
management, it must be granted that any reservation based on social or historical criteria affects
efficiency adversely. However, this is a cost our society must pay for a few years, perhaps a few
decades if it has to have any pretenceof undoing the effects of social and economic exploitation
of the masses by a handful minority for over thousands of years. Unless one believes in a genetic
theory of inefficiency and corruption linking these. To the backward classes only, there is no
reason, why our society should not be able to get over this transitionary problem.

The other popular opinion is that the government should try to help the obcs by improving their
educational standards through programmes of skill formation and by launching employment and
development schemes for them at a lower level-for agricultural labourers, artisans, etc, and not by
thrusting government jobs upon them requiring much higher level of skill and competence. But
why have such programmes not been initiated so far or if initiated why have these failed to attain
the objectives? Most of our rural development programmes have economic criteria built into
them for identifying the target groups of population as do the schemes for providing basic
amenities in urban areas. The benefits, however, do not reach the backward castes because the
implementing machinery does not have the necessary sensitivity and also because the existing
administrative system would scuttle them. One way of ensuring that the benefits reach them
would be, on the one hand, to launch or strengthen these programmes and, on the other hand
sensitise the bureaucracy by inducting more persons from the obcs. The policies of reservation

72 Reservation for Backward Classes: The Real Issues Source: Economic and Political Weekly, Vol.25,
No.37 (Sep. 15, 1990), pp. 2039-2040.

71
and target-oriented development, are, therefore, not alternatives. They must complement each
other in order to make a dent on the fate of the socially underprivileged.

That the reservations would make caste a basis for our day-to-day decisions, create distrust,
animosity, etc, and hinder the emergence of modern and progressive values is a difficult
argument to dismiss. By putting the caste identity under the carpet we have definitely not
succeeded in solving its problems. Nevertheless, putting it on the table now has its additional
costs. The benefits of a handful of government jobs can be outweighed by increased
discrimination since the obcs would remain at the mercy of advanced classes in social and
production spheres for many years to come. There is no way of checking if indeed the net gains
would be negative but accepting this argument would imply relegating the obcs to their present
state for all times to come. It is, therefore, important to accept the challenge of adopting a
conscious policy of caste discriminations in favor of the historically underprivileged but at the
same time take measures tominimise the bitterness and caste conflict.theforegoin discussions in
detail of the pro and anti- reservation sentiments which are prevailing in our country. Followings
are some of the sentiments:

(c) Quota system after 63 years of independence is not acceptable

Today, every individual is striving to uphold his / her rights. In such a scenario, how are we
supposed to react to a provision that violates one of our basic rights, i.e. Right toequality?this
reservation system has become a hurdle for every individual, especially the youth of our country,
thereby preventing them from achieving excellence for themselves as well as for the nation. This
ultimately leads to lack of motivation, which is not a good indicator for a booming
economy .quota system after 63 years of independence is not acceptable, as it was introduced for
the uplift of lower castes to a limited extent, but it is being increased due to the unwarranted
interference of politicians. It is time that our government sets up an independent panel to reassess
the actual objective behind ‘reservation’. It is a well-known fact that bringing such panels into
action is not a job to be accomplished overnight, but initiative and efforts have to begin now, so
as to ensure proper and all-round uplift of society in future.

72
(d) People who cannot afford education should be given preference over SC/STs

Reservation is detrimental to society and should be done away with. Gandhi always believed that
reservation would create a divide between castes in India. He had proposed that the reservation
system be there for 10 years and then be scrapped, but we don’t see that happening today.
Reserving seats for castes that cannot get in on merit is unfair to the open category. I, as anopen
category student must have scored 295/300, but still my seat would be given to someone who
belongs to the backward class and got in with 40/300. That’s just plain injustice. Yes, i agree that
opportunities must be equal for everyone, but to which level? That has to be defined somewhere.
People who cannot afford education should be given preference over someone who is from a
backward class. The entire reservation system needs to be reviewed.

(e) Some take advantage of belonnging to backward classes despite being well-off

These reservations are not made on the basis of the economic background of the student, but on
the basis of caste, which is hereditary. So it is possible that the family of a student is
economically self-sufficient and can afford good exposure and private education for their child,
but take advantage of belonging to a backward class, when it comes to seeking admissions. Such
reservations should not only be based on caste, but alsoon the economic status of the family.
Providing opportunity to those who need and deserve is good, but not to the ones who don’t need
it and can do without it. Besides, i doubt that such students, who enter on the basis of only caste
and not academic merit, can cope up with what is being taught. As a result, the quality of
education deteriorates.

(f) Reservation helps marginalized sections of society to progress

I believe that the intention of reservations for admissions and jobs is a positive one.
Unfortunately due to the previous social hierarchy in India, few social groups were marginalized
and were deprived of the educational and social opportunity that they should have had. If our
constitution today promises an equality of opportunity for all; merely eliminating castes and
including the deprived groups in one single category will not help. Though it may be

73
inconvenient to those who do not belong to marginalized sections, we have to implement
measures to repair the damage done to the groups that were not allowed to progress. One method
is reservations, as many from the marginalized groups are just first or second generation learners.
Once a person from a socially backward class is able to achieve success and a comfortable
lifestyle, it would be ethically wrong for him to misuse his privilege of ‘reservation’, as that
would be a mockery of its objective.

(g) There is no time limit for reservation in education and government services

When reservation was started, it was a political reservation for only ten years, with a provision to
extend it further if needed. For reservation in education and government services, there was no
time limit stated by the constitution of India. The article 334 in the constitution of India, 1949,
states reservation of seats and special representation of scheduled castes (sc) and scheduled tribes
(st), particularly in gram panchayat, and up to loksabha. So it is a misunderstanding that there
was a time limit for reservation in education and employment in government services. As per the
constitution, there has to be 22.5 % reservation for st and sc groups and 27% for other backward
classes (obc). Unfortunately, as per the planning commission report of the 11th five year plan
(page number 118 and 120), only 4.5% of reservation for obc is fulfilled and reservation for sc /
st is not fulfilled in any category. As per kschalam’s (member of union public service
commission) book, the total population of obcs, st and sc in India is over 25 crore and only over
50 lakh people who fall under these groups have benefited from reservation. It shows that
reservation has still not reached the majority of these groups. On September 26, 1991, the
Narsimha Rao government announced 10% reservation on economic grounds, but the
constitutional bench of nine judges of supreme court, in their ruling number 16 (1992), stated that
giving reservation on economic criteria is unconstitutional.

(h) Exploited sections of society have evolved and no longer need quota

The reservation system in India was started in the government and public sector units in order to
uplift the socially, economically and educationally backward communities. However, after 63
years of independence, India has gone through a substantial change and so have the people. The
exploited section of the society has evolved and explored a lot of opportunities that have resulted

74
in the uplift of their community. In my opinion, these reservations are now losing their
significance and people should no longer be at the mercy of these quotas to get admissions and
jobs. In order to increase the effectiveness of these reservations, underdeveloped areas of the
country need to be identified and these reservations need to be implemented exclusively to meet
the needs of such people.

(i) Reservation policies should be modified to fit present scenario

Reservations have been a part of the indian system for the past many years now. Caste-based
reservation has always been a topic of debate for many. Ideally, reservations should always uplift
the groups that are underrepresented in proportion to their population. In the current scenario,
some sections of society have evolved and no longer require reservations; such groups need to be
identified. This change should be accounted for and the reservation norms should be altered and
made to fit the present conditions. The reservation policies should be modified for sections of
society that are in real need of recognition.

(j) Majority loses out on opportunities because of the reservation system

The issue of reservations in India is a debatable issue as it is a form of justice for some and
injustice for others. Reservations have been a part of our country since independence, in order to
provide an equal opportunity to those subjected to caste-based exploitation. However, this is now
being used as a tool by political parties to gain votes. In this bargain, it’s the majority that loses
out on opportunities in this competitive environment, which proves to be a major source of
discontent. A system where one deserving student misses out on a seat because of reservations is
something that can be changed. In my opinion the minority in general should be given their
rights, but only if they are economically weak. Every deserving individual has the right to make
it to the top on the basis of merit and nothing else.

Prachiacharya, student73

After a reading of the opinion given above it would be imperative for us to see how much of the
statement given by the above people representing the different communities to which they belong
73 Should reservation policy be re-examined? Friday, Aug 12, 2011, 19:46 IST | Place: Pune | Agency: DNA.

75
stands true. It has to be seen that what has the reservation done for the development of the
scheduled caste and scheduled tribe. What shall also be seen that whether it is true that
resevvationsa roadblock for the countries development. For such an appreciation of the matter in
hand we need to look into the various sectors where reservation as a policy is mandated and how
much has it been implemented.

Table 1. Representation of scheduled castes in central government services

Group 1959 1965 1974 1984 1995 2000 2001 2002 2003

A 1.18 1.64 3.2 6.92 10.12 10.77 11.21 11.09 11.93

B 2.38 2.82 4.6 10.36 12.67 12.13 12.43 14.o8 14.32

C 6.95 8.88 10.3 13.98 16.15 15.84 16.24 16.12 16.29

D(excluding 17.24 17.75 18.6 2o.2 21.26 18.25 17.55 20.07 17.98
sweepers)

Sweepers - - - - - 57.02 60.45 65.22 58.57

Source: 7th repot of the national commission of scheduled caste and scheduled tribes and 1st
report of the national commission of scheduled castes

The above table shows the representation of scheduled castes in central government services from
1959 to 2003. As mentioned below the table the data has been taken from the annual report of the
national commission of scheduled caste and scheduled tribe and the national commission of the
scheduled caste. By the prima facie reading of the data we could clearly see that the
representation of the scheduled caste in services has increased during the years. The data of the
year 2003 except the services in group d has shown the highest figures as compared to the other
years shown in the table. It is also to be noted here that there has been a steady increase in the
percentage representation of the scheduled castes in the central services. This can be made clear
by looking at the values of the year 1959 and 2003 for all the groups of the central government
services.

76
However there are three main observations which has to be taken care as soon as possible. First,
the representation of scheduled caste in group d has from the earliest recorded data has been
above the mandated requirement of reservation of 15% in services i.e. For the year 1959 the
percentage value is 17.24% for the representation in group d services. Also it is pertinent here to
pin point that the value percentage for group d service has never declined from this threshold but
rather has increased to a high at 21.26 and 20.07 for the years 1995 and 2002 respectively.
Secondly, a striking observation here is the representation of scheduled caste in the group d
service which caters toonly sweepers as a quantifier. The value percentage of the year 2000 was
57.02 and has been fluctuating till the last year of available data that is 2003. Within these years
the highest value has gone up to 65.22. Also it is imperative to mention that the required
representation ID 15% of the seats but the value seems to be four times the required percentage.
Thirdly, it is to be noted that in the given data the value percentage of the representation of
scheduled caste has an increasing trend from the group a to group D. For example the value for
the year 2003 for the group a, group b, group c, group d and sweepers was 11.93,
14.32,16.29,17.98 and 58.57 respectively.

Table 2. Representation of scheduled caste and scheduled tribe in central universities

teaching Posts:

Sl. NO Name of The Professor Reader Lecturer

University

1 Aligarh Muslim Total 276 396 567

University

SC - 01 -

% - - -

ST - - -

% - - -

2 Banaras Hindu Total 109 272 692

University

SC - 2 41

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 % - 0.74 5.92

ST - - 06

% - - 0.87

3 IGNOU Total 35 81 150

SC - 5 18

% - 4.95 9.72

ST - 01 9

% - 0.9 4.86

4 J.N.U. Total 193 121 74

SC 04 02 10

% 1.7 1.1 7.8

ST 01 0.2 03

% 0.4 1.1 2.3

5 JamiaMilliaIslamia Total 117 111 221

SC 01 - 12

% 0.85 - 5

ST - - 2

% - - 0.9

6 Maulana Azad Total - 02 06

national urdu
university

SC - - -

% - - -

ST - - -

78
 % - - -

7 Total 99 76 64
University of Hyderabad

SC 1 5 12

% 1.1 5 18.75

ST - - 3

% - - 4.69

8 Tezpur university Total 14 18 46

SC - - 04

% - - 8.69

ST - - 02

% - - 4.35

9 NEHU Total 61 73 39

SC - - 37

% - - 94.87

ST - - -

% - - -

10 Pondicherry university Total 46 50 44

SC 01 7 07

% 2.17 14 15.9

ST - - 02

% - - 4.5

11 University Of delhi Total 314 229 133

SC 3 1 3

79
 % 0.96 0.44 2.26

ST - 1 1

% - 044 0.75

Table 3. Representation of scheduled castes and scheduled tribes in non teaching posts in
central universities:

SI. NO Name of the Group A Group B Group C Group D

University

1 Aligarh Muslim Total 122 203 2552 3021

University

SC 1 2 11 440

% - - - -

ST - - 4 7

% - - - -

2 Banaras Hindu Total 123 79 2158 3003

University

SC 8 20 94 872

% 6.50 25.32 4.36 29.04

ST 2 - 13 89

% 1.63 - 0.60 2.96

3 IGNOU TOtal 88 122 631 195

SC 6 18 116 60

% 4.95 13.43 14.87 28.84

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 ST 4 5 44 1o

% 3.3 3.73 5.64 4.8

4 J.N.U. Total 67 212 506 609

SC 14 21 89 235

% 15.6 7.9 15.6 34.9

ST 1 4 11 10

% 1.1 1.5 1.9 1.5

5 JamiaMilliaIslamia Total 54 52 517 475

SC 1 2 2 54

% 2 3 0.5 11

ST - - 2 -

% - - 0.5 -

6 Maulana Azad Total 9 1 27 10

natiOnalurdu
university

SC - - 02 01

% - - - -

ST - - 01 -

% - - - -

7 University Of Total 45 84 431 524

Hyderabad

SC 11 9 72 127

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 % 14.6 1o.1 15.1 24.2

ST 4 2 18 31

% 5.3 2.2 3.8 6

8 Tezpur university Total 20 10 63 70

SC 1 - 09 14

% 5 - 14.28 20

ST - 01 15 03

% - 10 7.94 4.28

9 NEHU Total 51 147 447 333

SC 24 38 1o8 79

% - - - -

ST - - - -

% - - - -

1o Pondicherry Total 31 20 230 248

university

SC 07 03 40 23

% 15.6 12.5 15 7.6

ST 1 - - -

% 2.2 - - -

11 University Of delhi Total 174 297 1516 1181

SC 2 22 184 435

% 1.15 7.41 12.14 36.83

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 ST 2 - 17 19

% 1.15 - 1.12 1.61

ALIGARH MUSLIM UNIVERSITY

It was observed that the representation of scheduled caste and scheduled tribes is nil in teaching
category and alsoneglible in non teaching category. The university is not implememting the
reservation policy. The national commission for sc and st pointed out during the meeting that
there is lack of transparency n fiilling up of the posts. Under the non teaching category, the
university authorities do not even indicate whether the post was reservaedor not.

BANARAS HINDU UNIVERISTY

The position of representation of sc and st in teaching category indicates that in the lecturers post,
out of toatal 997 sanctined post 305 posts are lying vacant. As can be inferred from the data692
posts of lecturers are filled up, of which 645 posts were held by general candidates, 42 posts by
sc and o6 posts by st candidates. Therefore this position is most unsatisfactory.

In non teaching category, the percentage of representation of sc and st in group a post is 6.5o and
1.63 respectively which also is unsatisfactory.

IGNOU

The representation of sc and st in lecturer grade was 9.72 % and 4.86 % respectively which is not
as per the prescribed percentage. As regards non teaching category, the represenatation of
scheduled caste was 4.95% in group a and 13.43% in group b and 14.87% in group c posts and
that of st was 3.3. % in group a , 3.735 in group b ,5.64%in group c and 4.8 % in group d. It was
seen that the representation of sc in group a posts and st in group a,b,c and d posts were not
satisfactory.

J.N.U

The representation of scheduled caste and scheduled tribe in the lecturer grade was 7.8 % and

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2.3% respectively which is way below the prescribed percentage and hence it is unsatisfactory.

Also the presentation of scheduled caste in non teaching category in group b pots was 7.9 %
which was not satisfactory. The representation of scheduled tribes in all categories was below
2%.
JAMIA MILIA ISLAMIA

University has started implementation of reservation policy from 1997 and in teaching category
reservation is applicable up to lecturers post. The representation of scheduled castes for the post
of lecturer stands 5% and for the scheduled tribes a trifling value of 1%.

For the non teaching category the representation of scheduled castes and scheduled tribes was up
to 3% and nil respectively.

MAULANA AZAD NATIONAL URDU UNIVERSITY

The university since its establishment in 1998 is following the reservation policy for the
recruitment of teaching and non teaching. With no surprise the representation of scheduled castes
and scheduled tribes in teaching category was nil.

In non teaching category the position was dismal as there were only two scs and onest in the
grade of ldc against the total staff.

UNIVERSITY OF HYDERABAD

In the teaching category the representation of scs and sts as per the data can be said to be
satisfactory.

In the non teaching category the overall position in respect of sc as per the data is almost
satisfactory but lagging behind in respect of st.

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TEZPUR UNIVERSITY

In teaching category the representation of sc and st is 8.69% and 4.35% respectively which can
be said to be satisfactory.

In the non teaching category the position was found to be satisfactory except for sc in group b
posts and for st in group a posts.

PONDICHERRY UNIVERSITY

In teaching category the position was satisfactory in lecturer grade in comparison with the
prescribed quota for scs and sts.

In non teaching category the representation of st was unsatisfactory with 2.2% representation in
group a and nil in the rest of the groups.

Therefore after an appraisal of the data provided by the national commission of sc and st we
could clearly make out that the position of representation of sc and st in both teaching and non
teaching cadres, almost in all central universities, was below the prescribed percentage.

Although some universities follow the policy of reservation up to the level of lecturers there is no
representation of scheduled castes and scheduled tribes for the post of professor and reader in
most of the central universities for example banarashindu university has 109 professors and the
value percentage for sc and st stands nil. Not to a surprise this data is same for tezpur university,
ignou and aligarhmuslim university.

On the analysis of the data provided by the national commission of scheduled castes and
scheduled tribes the representation of scheduled castes and scheduled tribes in almost all
universities is lowest in the non teaching group a services and somehow the value has an
increasing trend when we move down towards group d services for example the representation of
sc in group a services in non teaching category is 6.5% and in group d services it is 29.04%
which can be said to be a five multiplier of the initial value. This trend can be seen in most of the
central universities for example ignou, jnu, tezpur university.

85
The National Commission of Scheduled Castes and Scheduled Tribes in its seventh report has
made an attempt to have a look at the representation of scheduled castes and scheduled tribes in
judicial services and in the positions of high court judges. In this context, the commission
approached the ministry of law and justice who asked the chief secretaries of the states/uts and
the registrar of high courts to furnish the requisite data to the commission. Therefore the
commission has provided the above data which stands for the year 1996 and 1998 for some of the
states.

A prima facie reading of the data shows that the representation of sc and st as high court judges is
nil in almost all of the states for which the data has been provided.the representation of sc and st
in state higher judicial services also stands unsatisfactory with values of nil and at the maximum
of 3% except few states such as himachalpradesh, kerala and delhi.

Therefore it would not be wrong to say that the representation of sc and st in case of state judicial
services is very poor although the reservation policy is applicable in these services too.

Now coming back to the opinion stated against the policy of reservation we could clearly make
out that though the policy of reservation has been effective since the enactment of the
constitution of India still the reservation policy has not reached its prescribed limit in any of the
posts in the central or the state governed institutes. India is a country which is mostly represented
by the upper caste communities which constitutes the smallest figure in the population of the
country. If we talk on proportional representation in every sector then the representation of upper
caste communities will severely go down from the present level. It is also to be noted here that
the constitution and courts say of adequate representation and not of proportional representation.

3.13 Continuing with the Policy of Reservation

There are some fundamental issues about reservation, which have continued to haunt the political
sociology of India.

Should there be reservation at all for what the constitution terms as weaker sections, namely, the
scheduled castes, the scheduled tribes and the other backward castes?

86
Should the reservation policy continue as the stipulated time of its implementation has come to
an end?

If reservations have to be continued, what should be the criterion to determine backwardness?

Should the provisions of the reservation policy accrue to members from the weaker sections that
have attained social mobility?

As there is hierarchy within the scheduled castes and scheduled tribes, how can the most
backward people within the weaker sections also benefit from the provisions of affirmative
action?

Should not the preferential option be extended toother groups currently handicapped?

Should the reservation policy be ex- tended to the private sector too.74

All these questions have been hovering around the society at large and need to be addressed with
sound and realistic determination. For the first question above the answer now satnds to be in
negative. As per the report of the national commission of scheduled caste and scheduled tribe the
representation of the backward classes is still not satisfactory in central government institution,
banks and judiciary etc. If the policy of reservation will be stalled now then it would be lethal to
those who are really getting the benefit of inclusion in the mainstream of the indian society. The
second question also is answered by the same explanation given for the first question as the
representation has still not reached the prescribed values. The third question has been answered
by the judiciary many times and the criterion which is used at present is the best that can be
implemented. Yes there are some consequences attached to it but it has to be always kept in mind
that no policy is without exceptions. The fifth question has also been answered by the judiciary
and it has upheld a lot of times when the reservation policy in some states also relates to
backward within the backward classes. For example bihar has classified dalits as dalits and
mahadalits. The sixth question can be answered in the affirmative as the sachar committee report
has recommended 10% reservation for backward muslims also as like the obcsscs and sts.

74 Reservation for Backward Classes: The Real Issues Source: Economic and Political Weekly, Vol.25, No.
37 (Sep. 15, 1990).

87
However the reservation policy should be designed in a manner that can really benefit them and
it should not be just a political move or a vote bank politics. The last question has been explained
later in this chapter.

Keeping the more discriminated and disadvantaged segment of the population in the center
among the scheduled castes and scheduled tribes, one needs to explore the multifaceted aspects
of affirmative action. Would the reservation policy, as presented in the constitution, provide
access to knowledge, employment, political participation and resources to the weaker sections?

Affirmative action programme seeks to rectify the consequences of social discrimination. It

involves, among other things, discrimination in favor of communities that have been victimised
by society and in law. Although the policy involving reservations and quotas for members of
disadvantaged communities have been the most widely used and also the most hotly con- tested
within the affirmative action programme, it is by no means the only way of remedying the
socially victimised communities. Under the affirmative action programme, governments have
sought to supplement positive discrimination in jobs with special economic packages, social
facilities and preferential spending.75

The continuing with the policy of reservation has further asked a lot of question which cannot be
answered in any objective manner and each of these questions require qualitative research in
separate fields and also the asking community should have the tolerance to accept what has been
found in the investigation. If we see the questions that are asked we would clearly make out that
the answers to these cannot be given on just an appraisal of few facts but a detailed explanation is
required. For example the questions that arise are:

(1) Are there better options than reservations or quotas in jobs and higher education?

(2) Don’t these measures encourage the beneficiaries of affirmative action to designate
themselves as members belonging to preferred groups?

75 Gurpreet Mahajan (1998): Identities and Rights : Aspects of Liberal Democracy in India , Oxford
University Press, Delhi, p.143

88
(3) Don’t these measures make those sections of society that historically have been
discriminated against feel that they have been elevated due to preferential treatment or
positive discrimination on the basis of group allegiance rather than individual merit?

(4) Won’t the poor upper caste people suffer due to reverse discrimination in favor of affluent
well–to-do lower castes in India?

(5) Won’t they make the beneficiaries of the affirmative action lethargic or complacent?

(6) If the students coming from a backward class were to know in advance that they would be
accepted by higher education institutions or jobs under the reserved category or
preferential treatment, would they still strive hard to perform their best?

(7) Won’t it aggravate further animosity if, despite reservation and preferential treatment,
such students find students from the general category outperforming them?

Affirmative action in the name of race, caste or minority can have deeper psychological scars on
the groups, according to who receives preferential treatment and who does not. Moreover,
affirmative action in the name of diversity, has an ameliorating effect on both groups, preferred
as well as non-preferred. Like mercy, it is “doubly blessed”. It leads to less passion and
resentment. It gives due weight to students’ potential capabilities along with their realized
capabilities reflected in high grades and scores on the basis of final examinations or common
entrance tests. Under the new measures, once admitted, the costs of poor performance are borne
to a greater extent by the beneficiaries of affirmative action themselves and to a lesser extent by
others. Bypromoting diversity on the campus, affirmative action can help in diluting the ill
effects of race or caste on society in the long run. Enhancing access, equity and diversity in
higher education does not mean that all must be treated as equal or exactly the same. Nor does it
imply equal or proportional representation in all areas of jobs, higher education and institutional
operations. It simply implies being systematically fair. Consideration for all on an equal footing
requires that inequities, when they occur, should be justified by overall benefit and gains to all
concerned and that they should be in the public interest. Some alternatives to affirmative action
should also be devised to strike a balance between equity and equality, on the one hand, and

89
individual gain and public accountability, on the other. Greater accuracy, creativity and
autonomy in the appraisal of the qualifications of prospective students are required to serve the
individual, institutional, national and international interests. It is imperative that universities and
policy-makers focus on the criteria to be used for affirmative action. They should ponder the
issues, such as:

I. Should affirmative action be used for the purposes of equity and justice or diversity and
redistribution?
II. Should it be used uniformly or differently for different groups and sub-groups? Should
tests be used to stop misuse, overuse or in egalitarian use of affirmative action?
III. Should it be limited to access to higher education through positive discrimination, or
should it also be supplemented with necessary financial support in the case of the needy?
What should be the extent of affirmative action in each course or institution?
IV. What should be the duration of affirmative action?

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V. How should we find out the potential for higher education from amongst the l wer strata
of society? How can we avoid subjectivity and a biased attitude on the part of the
recruiting authorities and faculty?
VI. How can we secure the support of the non-beneficiaries for affirmative action policies
and practices?
VII. How do we quantify or record the benefits accruing from such policies?

The government provides scholarship to sc students to attend school, but that is not enough:
"even when the government provides primary schooling free of charge, the costs of books and
supplies may not be affordable by very poor people. For secondary education, rural students
especially may not always find a school nearby, so that those whose parents cannot afford the
costs of commuting or relocating -- and paying for housing and boarding -- have little realistic
prospect of attending, regardless of preferential admissions policies." some scheduled castes do
better than others with the system, raising the demand in some quarters for "quotas within the
quota".

A particular case in point are the chamars, historically a leather-working (and therefore
untouchable) caste. In the state of maharashtra, the chamars are among the most prosperous of
the scheduled castes. A study found that they were 17 percent of the state’s population and 35
percent of its medical students. In the state of haryana, the chamars received 65 percent of the
scholarships for the scheduled castes at the graduate level and 8o percent at the undergraduate
level. Meanwhile 18 of the 37 untouchable groups in haryana failed to get any of the preferential
scholarships. In the state of madhyapradesh, chamars were 53 percent of all the scheduled caste
students in the schools of that state. In bihar, just twoof the 12 scheduled castes in that state--one
being the chamars-- supplied 61 percent of the scheduled class students in school and 74 percent
of those in college. Therefore looking at such diversities some of the alternatives to affirmative
action that have been suggested are using family income, education and social capital as criteria,
ranking of the school last attended, ascertaining opportunity costs based on neighbourhood,
convincing the non-beneficiaries to believe in the fairness of the system, guaranteeing x% of
seats to students from local schools (for instance, the mandated 20% in florida, 10% in texas, and

91
 o
4% in california), allowing for low performance due to circumstances but not due to the lack of
individual capabilities, motivation or determination, using modern psychological methods for
ascertaining future potential even in the case of low credential applicants, allotting b nus points
for various factors that have resulted in the loss of opportunity or poor performance, awarding
bonus points for excellence in sports, co-curricular activities and community leadership or in
compensation for physical or mental challenges, etc.76

International evidence suggests that neither growth nor strong market orientation alone reduces/
eliminates inter-group disparity and discrimination. Thus, especially given the compelling
evidence, affirmative action in India is essential and in fact, needs stronger implementation.
However, in order to increase its efficacy, it has to be less mechanical: provision of quotas
should be seen as the beginning of affirmative action, not as its end, as is the current practice. A
big problem with the programe is that there is no monitoring done and indeed, there are no
penalties for evading it. Thus, the mere announcement of quotas is seen as sufficient as provision
of quotas should be seen as the beginning of affirmative action, not its end, as is the current
practice there seems to be no attention paid tooutcomes: how many seats get filled, if there are
unfilled seats, what might be the problem, what happens after a beneficiary gets in - all these
very critical questions hardly receive any attention by the government. It is worth keeping in
mind that quotas or preferences are simply means to increase employment and incomes. Neither
of these touches the basic issue of disparity in wealth distribution. As the indian economy is
privatizing, restricting affirmative action to government jobs and education in India would
gradually make it redundant. For it to be meaningful it must be extended to cover to the entire
economy (as in the usa or malaysia, for instance). As the experience of other countries shows,
affirmative action need not be synonymous with quota and more creative forms can be devised
for the private sector. Indeed, the confederation of indian industries (cii) has made a beginning
by formulating a "code of conduct" on affirmative action that eschews quotas, but has other
provisions. Also, while even the suggestion of affirmative action in the private sector is viewed

76 Michael D Braker, The effect of reservation in caste persistence, A thesis submitted to the Georgetown
Public Policy Institute, Washington,DC, April 15, 2010

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 o
skeptically by the mainstream opinion, there seems uncritical acceptance of hereditary
reservation in business houses in India.

Further, just providing entry into jobs or educational institutions is not sufficient. Supplementary
measures which have crucial implications for the success or failure of the affirmative action
programme, must be made an integral part of the programme: remedial teaching, c unselling,
attempts to lower the incidence of drop-outs: skill enhancing programmes and so forth, which
would ensure that the benefits of entry into prestigious jobs and educational programmes are
fully utilised. To be effective, affirmative action should contain self-liquidating and self
perpetuating features: as affirmative action becomes stronger at entry level, it should be
gradually lowered at the later stages. For this, strict monitoring of outcomes, with penalties for
non compliance are essential.

In addition, "outside the box" measures must be considered that go beyond the scope of the
current affirmative action programme: ex free,compulsory and good quality primary education,
vigorous expansion of farm employment land reforms wherever feasible, subsidies/support for
dalit business/self employment. All these will benefit a much larger section of dalits than the
current affirmative action programme. The important thing to note is that the existing
programme and these supplementary measures need not be considered mutually exclusive. They
can strengthen and reinforce each other. Admittedly, there would be costs to all these measures,
but they have to be weighed against the benefits of integrating into the mainstream large sections
of nearly 16o million dalits unleashing this vast but suppressed reservoir of talent is the need of
the hour.for the rapidly growing indian economy.77

3.14 Reservation in Promotion

Recently the supreme court again decided on the matter of reservation in promotion in a
judgment delivered by a two-judge bench of the supreme court in u.p power corporation ltd. V.
Rajesh kumar in april 2012. In this case the supreme court has strike down the reservation in

77 Ashwini Deshpande, Quest for Equality: Affirmative Action in India, Indian Journal of Industrial
Relations, VOl. 44, No.2 (Oct., 2008), pp. 154-163

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promotion for not meeting the criterion set by the earlier decision of M. Nagarajvs Union of
India. It is important here to mention the developments of the matter relating to reservation in
promotion. The question of reservation and the reservation in promotion with it has been a
matter of debate in various decisions of the supreme court. Since independence, there were
various areas in respect of which decisions were pronounced but in the case of Indra Sawhney v.
Union of India, the nine-judge bench, while dealing with the question whether clause (4) of
article 16 of the constitution provides for reservation only in the matter of initial appointment,
direct recruitment or does it contemplate and provide for reservations being made in the matter
of promotion as well, recorded the submissions of the petitioners in paragraph which reads as
follows:-

the petitioners submission is that the reservation of appointments or posts contemplated by

clause (4) is only at the stage of entry into state service, i.e., direct recruitment. It is submitted
that providing for reservation thereafter in the matter of promotion amounts to a double
reservation and if such a provision is made at each successive stage of promotion it would be a
case of reservation being provided that many times. It is also submitted that by providing
reservation in the matter of promotion, the member of a reserved category is enabled to leap-frog
over his compatriots, which is bound to generate acute heartburning and may well lead to
inefficiency in administration. The members of the open competition category would come to
think that whatever be their record and performance, the members of reserved categories would
steal a march over them, irrespective of their performance and competence.

Examples are give how two persons (a) and (b), one belonging too.c. Category and the other
belonging to reserved category, having been appointed at the same time, the member of the
reserved category gets promoted earlier and how even in the promoted category he jumps over
the members of the o.c. Category already there and gains a further promotion and soon. This
would generate, it is submitted, a feeling of disheartening which kills the spirit of competition
and develops a sense of disinterestedness among the members of o.c. Category. It is pointed out
that once persons coming from different sources join a category or class, they must be treated
alike thereafter in all matters including promotions and that no distinction is permissible on the

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basis of their birth-mark. It is also pointed out that even the constituent assembly debates on
draft article 10(3) do not indicate in any manner that it was supported to extend to promotions as
well. It is further submitted that if article 16(4) is construed as warranting reservation even in the
matter of promotion it would be contrary to the mandate of article 335 viz., maintenance of
efficiency in administration. It is submitted that such a provision would amount to putting a
premium upon inefficiency. The members of the reserved category would not work hard since
they do not have to compete with all their colleagues but only within the reserved category and
further because they are assured of promotion whether they work hard and efficiently or not.

Such a course would also militate against the goal of excellence referred to in clause (j) of article
51-a (fundamental duties).78

The court in this case did not accept the decision in general manager, s.rly v Rangachari 7980
which held that article 16(4) contemplates or permits reservation in promotion as well. The court
held this by combined reading af the article 16(4) and article 335. 81 the court in this case also
stated as follows :-

We see no justification to multiply 'the risk', which would be the consequence of holding that
reservation can be provided even in the matter of promotion. While it is certainly just to say that
a handicap should be given to backward class of citizens at the stage of initial appointment, it
would be a serious and unacceptable inroad into the rule of equality of opportunity to say that
such a handicap should be provided at every stage of promotion throughout their career. That
would mean creation of a permanent separate category apart from the mainstream - a vertical
division of the administrative apparatus. The members of reserved categories need not have to
compete with others but only among themselves. There would be no will to work, compete and
78 AIR 1993 SC 477, PARA 819
79
80 AIR 36, 1962 SCR (2) 586
81nd
Article 335 befOre the 82 amendment act ,2OOO,s.2
Claims of Scheduled Castes and Scheduled Tribes to services and posts.- The claims of the members of
the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the
maintenance of efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State.

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excel among them. Whether they work or not, they tend to think, their promotion is assured. This
in turn is bound to generate a feeling of despondence and 'heart-burning' among open
competition members. All this is bound to affect the efficiency of administration. Putting the
members of backward classes on a fast-track would necessarily result in leap-fogging and the
deleterious effects of "leap-fogging" need no illustration at our hands. At the initial stage of
recruitment reservation can be made in favor of backward class of citizens but once they enter
the service, efficiency of administration demands that these members to compete with others and
earn promotion like all others; no further distinction can be made thereafter with reference to
their "birth-mark", as one of the learned judges of this court has said in another connection. They
are expected to operate on equal footing with others. Crutches cannot be provided throughout
one's

career. That w uld not be in the interest of efficiency of administration nor in the larger interest
of the nation. It is wrong to think that by holding so, we are confining the backward class of
citizens to the lowest cadres. It is well-known that direct recruitment takes place at several higher
levels of administration and not merely at the level of class-iv and class-ill. Direct recruitment is
provided even at the level of all India services. Direct recruitment is provided at the level of
district judges, to give an example nearer home. It may also be noted that during the debates in
the constituent assembly, none referred to reservation in promotions; it does not appear to have
been within their contemplation.82

The court in this case then summarized as follows :-

(7) article 16(4) does not permit provision for reservations in the matter of promotion. This rule
shall, however, have only prospective operation and shall not affect the promotions already
made, whether made on regular basis or on any other basis. We direct that our decision on this
question shall operate only prospectively and shall not affect promotions already made, whether
on temporary, officiating or regular/permanent basis. If is further directed that wherever
reservations are already provided in the matter of promotion - be it central services or state
services, or for that matter services under any corporation, authority or body falling under the
82 AIR 1993 SC 477, 1992 Supp 2 SCR 454

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definition of 'state' in article 12 - such reservations may continue in operation for a period of five
years from this day. Within this period, it would be open to the appropriate authorities to revise,
modify or re-issue the relevant rules to ensure the achievement of the objective of article 16(4).
If any authority thinks that for ensuring adequate representation of backward class of citizens in
any service, class or category, it is necessary to provide for direct recruitment therein, it shall be
open to it do so. It would not be impermissible for the state to extent concessions and relaxations
to members of reserved categories in the matter of promotion without compromising the
efficiency of the administration.83

This decision of the supreme court led to the insertion of article 16(4a) 149 and 16(4b)150 into the
constitution.

The constitutional validity was upheld by the supreme court in m. Nagaraj case observing as
follows:-

149
THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995
STATEMENT OF OBJECTS AND REASONS
The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion
since 1955. The Supreme Court in its judgment dated 16th November, 1992 in the case of IndraSawhney
and others vs. Union of India and others, however, observed that reservation of appointments or posts
under article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in
the matter of promotion. This ruling of the Supreme Court will adversely affect the interests of the
Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the
Scheduled Tribes in services in the States have not reached the required level, it is necessary to continue
the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the
Scheduled Tribes. In view of the commitment of the Government to protect the interest of the Scheduled
Castes and the Scheduled Tribes, the Government have decided to continue the existing policy of
reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it is
necessary to amend article 16 of the Constitution by inserting a new clause (4A) in the said article to
provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes.
150
THE CONSTITUTION (EIGHTY FIRST AMENDMENT) ACT, 2000
STATEMENT OF OBJECTS AND REASONS
Prior to August, 29, 1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which
could not be filled up by direct recruitment on account of non-availability of the candidates belonging to
the Scheduled Castes or the Scheduled Tribes, were treated as "Backlog Vacancies". These vacancies were
treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme

83 AIR 1993 SC 477, 1992 Supp 2 SCR 454

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Court of India in its judgment in the IndraSawhney versus Union of India held that the number of
vacancies to be filled up on the basis of reservations in a year including carried forward reservations
should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes,
the Scheduled Tribes and the other Backward Classes combined together had already reached forty-nine
and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per
cent., it became difficult to fill the "Backlog Vacancies" and to hold Special Recruitment Drives.
Therefore, to implement the judgment of the Supreme Court, an official Memorandum dated August 29,
1997 was issued to provide that the fifty per cent limit shall apply to current as well as "Backlog
Vacancies" and for discontinuation of the Special Recruitment Drive.
2. Due to the adverse effect of the aforesaid order dated August 29, 1997, various organizations including the
Members of Parliament represented to the central Government for protecting the interest of the Scheduled
castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the
position and has decided to make amendment in the constitution so that the unfilled vacancies of a year,
which are reserved for being filled up in that year in accordance with any provision for reservation made
under clause (4) or clause (4A) of article 16 of the Constitution, shall be considered as a separate class of
vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be
considered together with the vacancies of the year in which they are being filled up for determining the
ceiling of fifty percent. Reservation on total number of vacancies of that year. This amendment in the
Constitution would enable the State to restore the position as was prevalent before august 29, 1997.

The amendment proposed negating the requirement of efficiency laid down in the article 335 of
the constitution is a tacit acknowledgment by the government that it concedes the efficiency
argument but it is over-ruling that concern in the interest of social justice and inclusion.
Arguments challenging the dominant discourse on efficiency must be developed and the
government seems unwilling to embrace that challenge. A thicker understanding of efficiency is
what the state must advance in order to question the conservative foundations of the court's
efficiency discourse. Instead it seems to have chosen the easier but less legitimate way out. If
this proposal is indeed what goes through parliament, it will undoubtedly be challenged before
the supreme c urt. The question, then, is whether the court would be willing to raise the reference
to efficiency in article 335 to being a part of the basic structure.

3.15 A Brief Comparision of Affirmative Action in Some Other Countries and in India

3.15.1 Malaysia

What is today called malaysia is a combination of territories that were ruled by the british for
about a century and a half. During most of that colonial era, which ended with independence in
1957, the central and most economically developed part of these territories was the malay

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peninsula, at the tip of which is the island of singapore, one of the leading ports in asia. As the
colony known as malaya evolved into the independent nation of malaysia, it absorbed both
singapore and some territories on the island of borneo to the east, which these territories shared
with indonesia. Most of the large island of borneo belongs to indonesia, whose other great island
—java— flanks malaysia on the west

While the two largest ethnic groups in malaysia are the malays and the chinese, there is also a
small indian minority— mostly tamils—and other indigenous peoples who, together with the
malays, make up the bumiputerasor ‘‘sons of the soil,’’ for whom special provisions are made by
the government. Although malays are just half of the population of malaysia, all the bumiputeras
put together add up to 61 percent of the country’s population. In times past, the country’s
changing demography had much to do with its changing political structure. The first of these
demographic changes began in the early nineteenth century, when immigrants began arriving
from china.

Inter-ethnic tensions were among the major challenges facing the british colony of malaya when
it became the independent federation of malaya in 1957. Later, after the addition of singapore
and other territories, the federation of malaya became the nation of malaysia. The country’s
constitution guaranteed the political supremacy of the indigenous malays, both directly and by
weighting votes in rural areas, where the malays predominated, more heavily than votes in the
cities, where the chinese were in the majority. The close similarity in population sizes between
the chinese and the malays at that point made the malays uneasy about maintaining that
supremacy in the future. The chinese were already demanding equal treatment for all citizens of

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malaysia, while the malays wanted to maintain and expand preferential treatment for themselves
and other indigenous people as bumiputerasor ‘‘sons of the soil.’’ this inter-ethnic strife was
resolved by one of the most remarkable political decisions: singapore was expelled from
malaysia in 1965—one of the few times in history when a country has voluntarily divested itself
of part of its own territory. Because singapore had a heavily chinese population, its expulsion left
malaysia with a comfortable malay majority, which was the whole point of the action. Now
malays held unchallengeable political control of malaysia.

The continued and highly visible inferior position of malays outside the political realm was
galling to the pride and aspirations of the malays, providing political fuel to those who wished to
attack the compromises of the ruling umno-led coalition. However, the coalition won a close
victory in the elections of 1969, some jubilant chinese began celebrating in the streets—setting
off riots by angry malays that changed the whole future direction of the country. Malay mobs
attacked chinese and killed hundreds of them, with thousands more being made homeless. In
order to further mollify the malays and spare the country more bloodshed, the government
launched a sweeping set of programs called the new economic policy, designed to achieve what
it called ‘‘racial balance.’’ in the words of an official government publication

If racial balance in the employment field is to be achieved such that the proportion of the various
races in employment in the major sectors of the economy reflects the racial composition of the
labor force, all racial groups benefit fully from full employment and existing differentials in per
capita income between the various races are narrowed, then intersectorial movements of labour,
as well as movements to higher productivity activities within sectors, of a sizeable order will be
necessary.84 under the new economic policy, the preferences which already existed in
government employment were extended to employment in the private sector, including foreign
firms operating in malaysia. In addition, the new economic policy set as a goal the transfer of 30
percent of all corporate stock in malaysia to malays—either individually or to the government
acting in the name of the malay population. As of the time this goal was set, malays owned less

84 . Mid-Term Review of the Second Malaysia Plan, 1971–75 (Kuala Lumpur: The Government Press,
1973), pp. 76, 78

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than 2 percent of the country’s corporate equity. 85 They did not reach the goal of 30 percent
ownership by the target date of 1990, but they did reach 21 percent by 1995. However, the
composition of those who benefitted was biased toward elites whose political support was
important to the ruling coalition: malay businesspeople, virtually all of whom had umno
connections, were given preference in obtaining licenses, credit, and government contracts. As
part of the strategy to increase malay participation in the modern economy, the government
forced established chinese and foreign enterprises to restructure in such a way that at least 30
percent of their shares would be owned by malays—either government agencies acting ‘‘on
behalf of’’ the malay community or private malay businesspeople. Enterprises that failed to
restructure found it increasingly difficult to renew necessary licenses or obtain contracts with the
expanding state sector. The normal way for large companies to restructure was through the issue
of new shares that were made available to malay purchasers at below par prices. Government
loan programs were also established tooffer credit preferentially to malays. Educational
preferences for malays were also greatly expanded. The new economic policy provided
numerous opportunities for dispensing patronage toofficials and supporters of the ruling coalition
parties, especially the dominant united malays national organization. For example, umno
politicians have often had their own business enterprises, which receive preferential treatment
from the government. A world bank report on the issuance of housing licenses in malaysia called
it ‘‘an easy route to instant wealth’’ for politicians. While members of parliament and state
assemblies had special opportunities to profit from the new economic policy, benefits were also
passed down to lower level officials of government and of the ruling parties, as well as to their
supporters. Preferential access to taxi or trucking licenses for malays became, in practice,
preferential access to those malays who were members of umno or relatives or protégés of umno
officials. Moreover, people who spoke out in opposition to the ruling coalition could find
government benefits denied or discontinued for themselves or their localities.

In short, malaysia’s preferential policies, like those in other countries, tended to benefit primarily
those who were already well off and well connected. Even chinese developers with connections
to malay politicians benefitted from government housing programs.
85 Sumit Ganguly, ‘‘Ethnic Policies and Political Quiescence in Malaysia and Singapore,’’ Government
Policies and Ethnic Relations inAsia and the Pacific, edited by Michael E. Brown and Sumit Ganguly, pp.
260–262.

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A partial reversal in language policy occurred in 1993, when the prime minister of malaysia
announced that instruction in english at the university level would be permitted in the fields of
science, technology, and medicine.86 fields where apparently it was difficult to get enough
malays to replace the chinese and the indians, and where there was a shortage of highly skilled
personnel. In august 2001, the government announced that university admission would again be
based on individual performance.87 however, this so-called ‘‘merit’’ system established two
different ways of gaining university admissions, the easier method being open only to malay
students. The net result was that the malay share of university admissions rose from what it had
been under the racial quota system.

3.15.2 Affirmative Action in Sri Lanka

Formerly the british colony of ceylon, srilanka achieved independence in 1948 with a promising
future being anticipated by its own people and by outside observers alike. There was a basis for
such optimism. Although the sinhalese and the tamils differed in ethnicity, language and religion
—and seldom intermarried—there was much evidence of goodwill across the social lines that
divided them. The elitesof both groups were westernized, english-speaking, and cosmopolitan,
and were used to working together in the british civil service and in private british businesses.
Both elites tended to live in westernized enclaves together, and apart from the more traditional
masses of their respective groups. Moreover, the country’s political leaders were committed to a
secular, democratic state, recognizing the rights of all its citizens, regardless of their ethnicity or
religion. This live-and-let-live pattern was not confined to the elites or to politics. Whatever the
historic clashes of sinhalese and tamils in centuries past, there had never been a race riot between
them during the first half of the twentieth century. 88other groups in the population of the country
included moslems and christians. Relations among the various ethnic and religious groups in
srilanka were described by an american scholar as ‘‘cordial, unmarred by the sort of friction that
exists between hindus and moslems in India.’’ it was not unusual for buddhists to appear at hindu
festivals or christmas celebrations, for example. Yet this all changed radically within a decade
86 Michael E. Brown and SumitGanguly, editors, Government Policies and Ethnic Relations in Asia and the
Pacific, pp. 257–258
87 The Economist Intelligence Unit, Malaysia, Brunei, p. 15
88 One riot between Muslims and Hindus in 1915 was the only blemish on this record in the first half of the
twentieth century

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after independence, as a result of politicizing intergroup differences and instituting preferential
policies. The basis for such policies was the familiar fact that different groups were not
proportionally represented in the universities or the professions or in businesses. More
specifically, the tamil minority was more favorably situated in all these respects than the
sinhalese majority.

As of 1921, half the lawyers in ceylon were sinhalese, the lowlanders being 46 percent and the
highlanders 4 percent, even though the highlanders were about half as numerous as the lowland
sinhalese. Ceylon tamils, who were only about half as numerous as the highland sinhalese,
nevertheless provided 28 percent of the lawyers, despite being only 12 percent of the total
population at that time.89 but there were no indiantamil lawyers at all, even though indiantamils at
that point outnumbered ceylontamils. It was much the same story in the medical profession. The
ceylontamil minority actually produced more doctors than any other group—44 percent of all
doctors or other medical practitioners, compared to 34 percent who were sinhalese (only a tenth
of whom were highland sinhalese). Burghers provided another 12 percent—and, again, none at
all were indiantamils.90similar patterns continued over the years. In ceylon university college in
1942, 30 percent of all the students were ceylontamils, nearly three times their representation in
the population. Although the top echelons of the colonial civil service were dominated by
englishmen, and the sinhalese were a majority of the native ceylonese civil servants, the
ceylontamils were still much over-represented relative to their percentage of the population.∫
over the years, the sinhalese began catching up with the tamils in english education and by 1946
there were 205 sinhalese doctors, compared to 115 tamils. However, the ceylontamils continued
to be over-represented relative to their share of the population. That same year, two years before
independence, ceylontamils occupied 30 percent of the positions in the ceylon government and
40 percent of the judicial posts.91in keeping with their educational backgrounds, ceylontamils

89 S. J. Tambiah, ‘‘Ethnic Representation in Ceylon’s HigherAdministrative Service, 1870–1946,’’ University

of Ceylon Review, April–July 1955, pp. 127, 128
90 S.J. Tambiah, ‘‘Ethnic Representation in Ceylon’s Higher Administrative Services, 1870–1946,’’ University
of Ceylon Review, Vol. 13 (1955), p. 130.
91 Chandra Richard de Silva, ‘‘Sinhala-Tamil Ethnic Rivalry: The Background,’’ From Independence to
Statehood: Managing Ethnic Conf lict in Five African and Asian States, edited by Robert B. Goldmann and A.
Jeyaratnam Wilson (London: Frances Pinter, Ltd., 1984), p. 116.

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were especially successful in scientific and technical fields. As of 1948, the year of national
independence, 40 percent of the engineers in the government’s irrigation department were tamils.

The rising numbers of educated but non-english speaking sinhalese spearheaded a reaction
against western culture, language and religion. Buddhists resented the large role of
governmentsubsidizedchristian missionary schools in the education of srilankans. There was also
an understandable demand that the affairs of the government no longer be conducted in english
but in the people’s ‘‘own language.’’ like so many political catchwords, the demand for their
‘‘own language’’ instead of english concealed more than it revealed. There was no ‘‘own
language’’ of the ceylonese people as a whole, but two different languages representing the two
largest population groups. While this demand was made as far back as the early 194os, before
independence, when it meant a transition to the two languages of the principal groups in the
country, the transition from english was still not yet implemented as the 1950s began, largely due
to the caution of Prime Minister D. S. Senanayake, who sensed the explosive potential of issues
like language and religion in a newly independent and ethnically divided country.

In 1956, bandaranaike was elected in a landslide victory that swept away the old elite so
thoroughly that only he and one cabinet member in the new government had ever held high
office before. Bandaranaike’s new government produced legislation requiring ‘‘sinhala only’’ as
the official language of srilanka—the language not only of government itself, but also the
language in which businesses and other institutions had to communicate with government.
Declining prospects for education and employment now facing many tamils—especially the
young, looking forward to university education and professional careers—led to protests.
Although these were peaceful protests in the tradition established by gandhi in India, in the
frenzied atmosphere whipped up by sinhalese politicians and buddhist monks, these protests led
to sinhalese mob attacks on tamils. Despite the absence of race riots between these two groups in
the first half of the twentieth century, a number of such riots erupted from 1956 to 1958, but
these were only the first in what would become a long series of bloody and lethal riots in the
years ahead. Trains and cars were stopped by angry mobs, their passengers assaulted and some
burned alive. Such horrifying scenes would be repeated many times in outbreaks of riots over the
years.

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The next attempt to change this was called ‘‘standardization.’’ instead of basing admissions
decisions on the actual scores made by individual students, each student was given a
‘‘standardized’’ score based on his score relative toother students from his own ethnic group.
Such preferences were later supplemented by quotas. In 1972, a ‘‘district quota system’’ was
introduced, to allocate university admissions on the basis of the population in each district. Since
sinhalese and tamils were concentrated in different districts, district quotas were, in effect, ethnic
quotas. Under this system, the proportion of tamil university students in the sciences fell from 35
percent in 1970 to 19 percent by 1974.

Sri lanka had now reached a stage where the initial issues that ignited the conflict were buried
under a large overlay of mutual hatreds, distrust, vengeance and counter-vengeance. Perhaps
most ominous of all was the formation of murderous extremist organizations among both the
sinhalese and the tamils—organizations with a vested interest in the continuation of conflict and
prepared to kill those who sought reconciliation. A provision in a new constitution in 1978
recognized language rights of the tamils, but this could not restore the status quo ante. It was, in a
world war ii phrase, ‘‘too little and too late.’’ the civil war continued on for decades more. With
all the lives that it has claimed, what did affirmative action accomplish in srilanka? By 1973, the
sinhalese had overtaken the srilankantamils in education and incomes, and of course they were
already better off than the indiantamils in both respects, even before group preferences and
quotas were instituted. Contrary to widespread assumptions, it was not when economic
disparities were greater that intergroup strife was greater. On the contrary, the sinhalese and
tamils co-existed peacefully in the 1920s, when the tamil minority produced more doctors than
the sinhalese majority. It was a decade after the sinhalese had overtaken the tamils in numbers of
doctors in 1946 that the first mob violence against the tamils erupted, and it was a decade after
the sinhalese had overtaken the tamils in income and education—with the help of preferences
and quotas—that the majority unleashed its biggest and most savage riots against the minority. In
short, it was not the disparities which led to intergroup violence but the politicizing of those
disparities and the promotion of group identity politics.

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3.16 Comparison of Affirmative Action in India and USA

The US and India are in many obvious ways very different but in some important respects the
two nations are similar. Both have functioning democratic electoral systems and are
constitutionally committed to preserving civil liberties and individual rights. Both have large,
multicultural populations including significant minority groups with a long history of deprivation
and disadvantage,whose members are quite disproportionately under-represented in the upper
socio-economic strata of the society. And both nations have sought to address the needs of these
under-represented ethnic groups via certain forms of positive discrimination, labeled affirmative
action in the us and reservation policies in India.

Reservation policies in India have a longer history, and they have become both deeper (more
interventionist) and broader (affecting more societal arenas) than aa policies in the us. In the
us,aa policies now generally take the form of preferential boosts, which improve the competitive
position of eligible candidates,rather than quotas,which reserve seats or opportunities for such
candidates. In the early decades of affirmative action,however,quotas were sometimes used.the
size of the preferential boost extended to eligible candidates has varied widely, from modest to
quite substantial.inindia,positive discrimination has from the beginning taken mainly the form of
reserved seats or positions,to which eligible candidates can gain access without competing with
candidates from non-eligible groups. Moreover, in India beneficiary groups are often entitled to
their proportion of reserved seats or positions over and above the number that they gain in open
competition so reservations establish a minimum desired percentage of representation. However,
in many cases reserved seats and positions go unfilled, because of a lack of eligible candidates
who meet established minimum qualifications.

In the us, government actors played the key role in initiating affirmative action in the 1960s;but
since then non-governmental organizations have played an increasingly important role in
extending its scope. Because affirmative action is not addressed much less mandated in the us
constitution, the range of allowable aa practices has been wholly dependent on judicial opinions;
these in turn are influenced by the general political climate and, more specifically, by pressures
from groups favoring or opposing positive discrimination. In India, by contrast, reservation

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policies are much more firmly grounded on a constitutional basis even though the authorization
of preferences for particular groups coexists uneasily with the indian constitutions general
affirmation of individual freedom, equal opportunity, and non-discrimination. Much more than in
the us, the impetus for positive discrimination in India has come from governmental actors.
Reservations are mandated from above by the central and state governments; they are often
resisted by lower-level public sector institutions, and they are virtually absent in private sector
institutions. Many of the details of reservation policies are dependent on judicial interpretation of
the constitution, so the indian courts have played a significant role in shaping the way in which
these policies are implemented but not in determining whether they can exist at all. As a practical
matter, both in India and the us, the strength of the commitment to pd policies tends to depend on
the vigilance of beneficiary groups and pressures from their political representatives.

In both the us and India, pd policies have been applied in the spheres of employment and
education, and in both countries these are the spheres in which such policies are most
contentious.in the us, affirmative action in employment is practiced not only by public sector
agencies and organizations but also by many non-profit institutions and many private enterprises,
whether or not they are dependent on government funding. The implementation of some
nongovernmental aa policies is conducted under pressure from government authorities (or in
order to avoid legal liability for discrimination);but some of it is due to voluntary efforts on the
part of organizational and business leaders to increase the representation of minority groups in
their ranks. Even more so in the sphere of admissions to educational institutions, aa practices in
the us are due to decentralized voluntary actions rather than to governmental mandate or
pressure: many educational administrators (in both private and state schools) have embraced the
goal of increasing the representation of under-represented minority groups in their institutions,
and they often utilize preferential aa policies in an effort to achieve this goal. In the indian case,
reservations in jobs and in educational admissions are mandated throughout most of the public
sector including government services, government enterprises,and government-controlled
colleges and universities with just a few exceptions (e.g.in key strategic areas such as national
defense).16 on the other hand, reservation policies do not apply at all to private enterprises, and
the indian private sector has never been concerned about minority group representation. The
scope of reservations in India extends also to the political domain: seats are reserved for

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candidates from eligible groups in central and state legislative assemblies, in constituencies
where those groups form a relatively significant (though still a minority) part of the population.
These reserved seats have unquestionably enabled dalits and adivasis to gain far more positions
of political power than would otherwise have been possible; and this represents a significant
advance for these marginalized groups.17 in the us there are no such reserved seats, nor any kind
of aa preferences for minority candidates. There has been however, court-sanctioned pressure for
electoral districts to be defined geographically in such a way that in areas where minorities are
concentrated, they will be able to vote together in a single district rather than having their votes
split among several adjoining districts (where minority voters would form a much smaller
proportion of the electorate). Positive discrimination plays a greater role in India than in the us
not only in that it is more interventionist (reserved seats rather than preferential boosts) and
broader in scope (including the political arena as well as employment and education).it is also the
case that the proportion of the population represented by ethnic groups eligible for positive
discrimination is greater in India than in the us. The primary indian beneficiaries are the scs (now
more commonly referred to as dalits) and the sts (or adivasis),18who now constitute about 16 per
cent and 8 per cent of the indian population,respectively.19 but a substantial population
belonging to obcs, defined differently in different areas, is in many states also eligible for
reservations in public sector employment and in admissions to higher educational institutions.
Since the adoption of some of the mandal commission recommendations, obcs amounting to
roughly 27 per cent of the population are now eligible for employment reservations at the all-
India level too. Thus roughly 5o per cent of the population in India is now eligible for
reservations of one kind or another; though the proportion of the population with reserved
legislative seats will remain a little below 25 per cent for the foreseeable future. In the us, blacks
were the first beneficiaries of affirmative action (in the 1960s).since the 197os,however, the
beneficiary ethnic groups have usually included also hispanicamericans and native americans.
These groups represent (as of the year 2ooo) roughly 12,12,and 1 per cent of the total us
population,respectively.20 taken together ,their proportion of the population is close to that of the
scs and sts in India but much less than that of the scs, sts, and obcs combined. Whereas the
designation of beneficiary groups in India is fixed by governmental authority, in the us it is often

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decentralized to non-governmental organizations and enterprises, who make their own judgments
about which groups are under-represented and deserve aa preferences.

CONCLUSION

In the US, certification of individual beneficiary status depends simply on self-identification

(which is rarely challenged).in India, certification of beneficiary status is anofficial government
process, handled by officials in the locality where the individual was born and/or raised.

While the approach of the supreme court to efficiency in the context of reservations in public
employment has been rather simplistic, the state has chosen to ignore that argument and rely on
concerns of social inclusion. While the state might be faulted for not sufficiently engaging in
evidence-based policy making as far as issues of adequacy of representation is concerned, the
court's position that efficiency is severely compromised by reservations in promotions has been
merely an assertion, not based on strong normative foundations or empirical evidence.at present
there is a new debate ongoing in the parliament and that is for the inclusion of the obcs in the
proposed amendment to article 16(4a). It would be interesting to see how this amendment is
taken up by the parliament and in future the judiciary and whether the court will strike a balance
or negate it completely on the doctrine of basic structure which would see the abrogation of
article 335 of the constitution of India. Now that the rajyasabha has paased the bill it is pending
before the Lok Sabha for deliberations.

CHAPTER 4

OTHER LEGISLATIONS PERMITTING POSITIVE DISCRIMINATION IN FAVOUR

OF WOMEN, CHILDREN, WORKERS, DISABLED, AGED PEOPLE ETC.

Apart from all the constitutional provisions, some other legislations have also been passed from
time to time by the competent authorities to address the position of women, children, workers,
disabled, aged persons etc. Some of them are worth mentioning here:

• The Factoies Act, 1948.

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• The Employees’ Compensation Act, 1923(Earlier known as Workmen’s Compensation Act,
1923).
• The Employees’ State Insurance Act,1948.
• The Maternity Benefits Act,1961.
• The Mines Act, 1952.
• The Minimum Wages Act, 1948.
• The Industrial Disputes Act, 1947.
• The Industrial Employment (Standing Orders) Act,1946.
• The Bonded Labor System (Abolition) Act,1976.
• The Child Labor (Prohibition and Regulation) Act, 1986.
• The Contract labor(Regulation and Abolition)Act,1970.
• The Dangerous Machines (Regulation) Act, 1983.
• The Equal Remuneration Act, 1976.
• The Payment of Bonus Act, 1965.
• The Payment of Gratuity Act, 1972.
• The Trade Unions Act, 1926.
• The Unorganized Workers’ Social Security Act, 2008.

4.1 Poitive Discrimination and the Factories Act, 1948

Maximum workers were employed in factories and their working conditions were miserable at
the time of independence. Therefore the central government came with this piece of legislation in
the year 1948. The nature of this legislation is to provide protection to the workers in the
factories and hence it is a kind of “protective” or “working condition” legislation. There are
several provisions in favor of the women and young workers which inter alia includes under
section 27 the prohibition of employment of women and children near cotton openers. It says that
in any factory , no women and children shall be employed for pressing cotton in which a cotton
opener machine is at work.

Section 48 talks about the “crèches”. It simply says that in factory where at least thirty women
workers are employed, it will be compulsory for the employer to provide the facility of crèches.
Chapter seven talks about the employment of young people.

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Section 67 says that the persons who have not completed the age of fourteen years children and
young children cannot be employed in any factory.

Section 69 says that no young person should be employed unless a certificate of fitness is given
to him. The certifying surgeon will examine the person of the young worker before issuing the
fitness certificate.

Section 71 deals with the working hours of the children.it says that any child shall be employed
only for four and half hour in a day. The special provision for the female child workers have
been made according to which no female child worker will be employed beyond 8a.m to 7p.m.

As per section 79, when any worker retires or dies then in such situation the employer must pay
wages in lieu of his residual leave with wages within two months.

4.2 The Mines Act, 1952 and the Positive Discrimination

Section 40 says that any person who is below 18 years of age shall not be allowed to work in a
mine. It further says that if someone has attained the age of 16 years then he may be employed as
an apprentice under a proper supervision after the permission by the inspector or the chief
inspector.

Section 46 talks about the employment of women in the mines. The underground work for
women is restricted but above the ground work for them is allowed.

4.3 The Child Labor (Prohibition and Regulation) Act, 1986 and Positive Discrimination

After the industrialization happened in idia, different kinds of establishments required the
employment of adult as well as child workers ,in the but gradually legislations were enacted to
protect the children under which the minimum age of workers working in those industries were
fixed. In the indian context , a very low amount of expenses are borne by the government on the
welfare and development of children. So, in such a situation, there is a very high probability that
the children in our society may create social problems. So the government gave some exemptions
to the children also to be employed in the industries . But the employers kept exploiting children

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and, ultimately to prevent this problems the central government enacted a legislation in 1986.in
this act a schedule having two parts namely a and b have been provided which contain the list of
occupations and industrial processes respectively, wherein employment of children is prohibited.

4.4 The Employees’ Compensation Act, 1923 and the Positive Discrimination

Before 1923, there was no legislation to address the issue of compensation to the workers in case
of accidents. But this Act was enacted by the central legislature to meet that problem and to
provide the legal rights to the workers to get compensation in case of accidents. This Act was
called as the Workmen’ Compensation Act,1923. This Act is presently known as
Employees’Compensation Act,1923.

4.5 The Employees’ State Insurance Act, 1948 and the Positive Discrimination

This Act provides for the social security of the employees employed in organized sectors in case
of some contingencies like sickness, maternity, death, disablement etc. Due to employment
injury.

Section 49 provides for the sickness benefits, section 50 provides for the maternity benefits,
section 51 provides for the disablement benefits, section 52 provides for the benefits of
dependents. Some other benefits are also available like medical benefits, funeral benefits,
medical facilities after retirement, rehabilitation facilities etc.

4.6 The Maternity Benefits Act,1961 and the Positive Discrimination

This act was enacted with the purpose to provide the social security to the women employees in
case of maternity . Though the central government has made provisions with respect to maternity
benefits under the employees’ state insurance act also but the scope was very limited. So the
attempt was made for this elaborate legislation.

Section 5 says that in case of delivery, miscarriage, abortion ,tubectomy etc. The payment shall
be made to the woman on the basis of average daily wages.

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As per section 9 and 9(a), the woman shall be entitled to the wage at the rate of maternity benefit
for periodof six weeks immediately from the date of her miscarriage and without submission of
advance application.

According to section 10, the woman will get the extended benefits if she becomes sick due to
infection after the delivery, miscarriage, abortion, tubectomy etc.

Section 8 provides for the medical bonus for women of rupees 3500 subject to the enhancement
up to 2000 rupees by the government in cash as medical bonus.

4.7 The payment of Gratuity Act, 1972 and the Positive Discrimination

The concept of gratuity was prevalent in India in the organized sectors in the form of gift, tip,
bakshish etc. Gradually it took the shape of demand from the workers. Initially the employers
used to give these gratuities as the reward for the good or meritorious service , at the end of the
employment. But the workers started demanding it from the employers and the simple tradition
took the shape of dispute between the employers and the employees.the central government
enacted this act of 1972 for the payment of gratuityon the basis of the payment of gratuity act of
west bengal. It is a kind of social security act.

4.8 The Minimum Wages Act, 1948 and the Positive Discrimination

At present payment of fair wages or living wages is found in the developed countries whereas the
minimum wages are found in the undeveloped or developing countries. Basically the industry is
divided intotwo categories that is the organized and unorganized sectors. In organized sectors ,
there are trade unions to raise the issues of the employees but it is not so in the unorganized
sectors. So the interference by the government is done and the government comes with some
affirmative action in the shape of the legislations and tries to fix the minimum wages for the
workers.

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4.9 The payment of Bonus Act, 1965 and the Positive Discrimination

Initially this payment of bonus was based on the principle of “no profit, no bonus” but it was
made an ex-gratia payment by the amendment in 1972. Any employee shall be eligible for the
bonus when he has rendered the service for at least thirty days in he establishment during any
accounting year but the bonus will be given only to those workers whose monthly wage or salary
is maximum up to ten thousand rupees.

4.10 The Equal Remuneration Act, 1976 and the Positive Discrimination

There are differences amongst the workers and hence there are differences in their wages also.
But the problem arises when different wages are paid to the similar nature of works. It means that
when all the terms and conditions of work are same and there lies a differential treatment in
payment of wage it amounts to a discrimination which is negative in nature. This act has been
enacted to prevent the differential treatment of men and women for the same work that is to say,
it is based on the “sex”. Generally the wages of women were less than men workers in all sorts of
establishments whether organized or unorganized, despite the fact that it has been mentioned in
article 39 of the constitution of India that there shall be equal pay for equal work for men and
women. The main objectives of this act includes the equal pay to men and women for equal work
and to prevent the discrimination in the wage payment on the basis of sex.

In Mackinon Mackenzie and CO. Ltd. V. Audrey D’costa(AIR 1987 ,SC.1281.), it was Observed
by the Supreme Court that the enforcement of this legislation shall not depend on the economic
condition of the employer.

4.11 The Dowry ProhibitionAct,1961 and the Positive Discrimination

The tradition of dowry is deep rooted in the indian society both in urban as well as rural set ups.
It has taken the shape of a potential source of so many other social problems like female
feticides, suicide, indebtedness, low status of women, sexual crimes, immorality and sexual
harassment etc. To meet with such challenges , the central government enacted this piece of
legislation and it is a kind of social legislation. Enactment of such legislation is considered as an

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appreciable step to prohibit the dowry like social evil. Under this act the act of giving or taking
the dowry has been made punishable. Section 3 says that the taking, demanding or abetment will
be punishable with an imprisonment of at least five years and with a fine of at least fifteen
thousand rupees, or with the amount of such dowry, whichever is more. Section 4 provides for
the punishment for asking for dowry. So the whole attempt is to protect women.

4.12 The Medical Termination of Pregnancy Act ,1971 and the Positive Discrimination

Although the act of abortion was anoffence under the IPC, 1860 but with the passage of time
some emergent situations demanded the relaxation of abortion by the medical scientists.
Abortion becomes necessary under certain circumstances like ill health of the fetus or the
mother, if the pregnancy is the result of rape or it is illegal etc. It is a social legislation in India.
Finally the central government with a view to give limited exemption to medical termination of
pregnancy or abortion,enacted this act.

4.13 Some other Flagship Programs and Schemes of the Central Government : Instances

of Affirmative Action

• Indira Gandhi MatritvaSahyog Yojana,2010.

• Integrated Child Development Services, 1975.
• Janani Suraksha Yojana, 2005.
• Mid-day Meals Scheme (MDM),2004.
• National Social Assistance Scheme,1975.
• Atal Pension Yojana(APY),2015.
• Central Government Health Scheme,1954.

• GraminBhandaran Yojana,2007.
• Pradhan MantriGraminAwas Yojana,1985

JawaharLal Nehru National Urban Renewal Mission(JnNURM), 2005.

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Article 4192of the constitution of India envisages the concept of social security. But what are the
methods through which we can realize it? The answer of this question lies in the fact that “social
insurance” and “social assistance are the two pillars or methods through which schemes of social
security are generally implemented. So far as the social insurance is concerned , they ae financed
mainly through the contributions of the employers, workers or other beneficiaries, and in some
cases supplemented by the state grant. Most of these programs are established by law and
specially defined category of employers, workers and other beneficiaries are required to
participate in that. The benefits under the social insurance schemes are linked with the
contribution of the insured person.

On the other hand , the social assistance programs generally provide for the benefits for those
who meet the minimum eligibility set out by the government. These schemes are financed by
the state funds or funds arranged by the state. The beneficiaries under such schemes do not need
to make the proportional contributions to be eligible for the benefits, rather they receive it as a
matter of right.

The national social assistance programs(nsap) have served the long felt needs for uniform
national minimum standards for providing social assistance to weaker sections of the society.
Apart from nsap, there are several schemes under which social assistance is being provided. The
government of India as well as the state governments have adopted so many social security
programs for the benefit of the vulnerable class of our society and also as a measure to alleviate
the poverty. The mahatma gandhi national rural employment guarantee act, 2005 deserves a
particular mention.

The above mentioned act is aimed at enhancing the livelihood security in the rural areas of our
country.it provides at least 1oo days of guaranteed wage-employment in every financial year to
every household whose adult members volunteer to do unskilled manual work

National social assistance programs include like: the national old age pension scheme, national
family benefit scheme, national maternity benefit scheme, indiragandhi national widow pension
scheme etc.
92 P.M BakshiThe Constitution of Indiap. 88 (Universal Law Publishing Company, Delhi 8th ed.2008).

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In addition to these programs, some other programs focusing on the development of the rurak
arras are such as swarnajayanti gram swarozgaryojna, indiraawasyojana. Many states have their
own programs and schemes for fighting the problems of the society .

India, at present still does not have the comprehensive and unified social security system
covering all its citizens.

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 CHAPTER 5

SUMMARY, FINDINGS (TESTING THE HYPOTHESIS) AND CONCLUSION

The people if India gave to themselves this constitution On twenty sixth of November ,1949 and
India finally became a republic On twenty sixth of January ,1950. Having been deprived of
almost all the freedoms and liberties over the Centuries , at times by the mughals and sometimes
by the british, India got its hard fought independence in 1947. The preamble which basically
talks about the goals and the objectives of the Constitution ,in its opening lines announces that
India is a “….democratic republic”. As we know that a democratic polity is the one which
addresses all the people-centric issues and tries to remain in tandem with the needs and demands
of the people of the country. Indian democracy is a unique one because in this set-up we the
people of India first elect representatives and then we rule ourselves by those ones, elected by us.
We were not unknown to the idea of republic and democracy because we have a history of
lichhavi empire in our country which was the oldest democracy and republic of the world, and
we happily adopted this model of polity without any hesitation.the other aspect of democracy is a
legally established government. The next question comes toour mind is what is the importance of
a government and why do we need it? The government is an agent of the state through which the
state imposes its authorities over its subjects. The government is the executive of the state.

The very idea of welfare come into its being with the expanding horizons of the activities of the
state. To meet all the needs and the requirements of the people at large , the state takes up the
responsibility. The multiplicity of the nature of the work taken by the state is suggestive of the
fact that our society is so diverse and the majority of the people who live here are so deprived
and they need such activities from the state as they in the legitimate expection think, the state
does some proactive activities to solve the problems of the society. This proactive measures are
called the affirmative action or the positive discrimination. This positive discrimination has been
discussed at length in chapters second and third. The chapter one simply introduces us to the very
basic idea of affirmative action of the state.

The idea of welfare is a modern outlook towards the functions and responsibilities of the state
and our constitution is embedded with this outlook. The philosophy of the welfare state

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unequivocally declares that indiaindian democratic system will be developed on the lines of an
organized society that is a state which will render social service and promote the general
wellbeing of its people. The modern political thinking across the world is conceived with the
notion that a welfare state secures to its people the general good and welfare.

The concept of the welfare derives some strong force from the directive principles of the state
policy under the part four of our constitution. The goals which are aspired to be achieved by the
state , include social, political and economic justice. Although these provisions are not justiciable
in the court of law but they are very fundamental in the governance of the state. Basic health,
basic education and employment are some of the basic markers of a growing or a grown polity,
and the directives under chapter four put an impetus on the state to inculcate all these values
when it is devising its policies.

Apart from this, in chapter 2 of the dissertation which is briefly discussing the relevant
constitutional provisions from which the legitimacy of the welfare measures is derived , which
inter-alia includes articles 14,15,16,17,19,20,23,24,25,26…32 etc. The most important one from
the point of view of the feminist jurisprudence, article fifteen ,clause three forms the basis for the
positive discrimination for the women .article 16 talks about the reservation, article 19 gives the
six freedoms which includes the right to speech and expression. To speak is a natural attribute of
human beings but the right to speech is a legal concept which has been given the status off one of
the fundamental rights , under our constitution. Article 20 tripple protection under its umbrella
that is the protection from the ex-post facto penal laws, double jeopardy and the ultimate
protection from the self- incrimination. Article 24 protects the children from being employed in
any hazardous employment. Article 21a provides for the compulsory primary education. The
most important of all the provisions is the article 32 which gives the fundamental right to have a
recourse to the supreme court directly in case of violation of any or more that one fundamental
rights by the state.

The next chapter that is the chapter no.3 which deals with the policy of reservation, the history
and the development of the policy of reservation in India and its current shape with the political
overtone. We have discussed the interplay of so many other social concepts like caste, religion

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etc. With the constitutional philosophy because the diversity of the indian society mandates it
Article 16 provides for the reservations in public employment which has been discussed at length
and compared with the other fundamental rights , preferentially with article 15.recently the issue
of reservation in promotion which is eshrined under article 16(4a) has been in the social as well
as legal circles .

As the times of India, a national daily,dated 6thof june,2018 reports that the hon’ble supreme
court has given the relief and okayed the quotas in promotions. The supreme court on 5thof june,
2018 has allowed the centre government to implement the longing reservation in promotion
policy. The reservation in promotion was allowed since 1955 till the apex court declared it to be
unconstitutional in the year of 1992. The law permitting the reservation was amended in 1995 but
it was challenged in 2006 in the apex court. But the court has put some rider on the government
which need to be considered before any policy is framed by the government. These yardsticks
will be the backwardness, inadequate representation in the opinion of the state and overall
efficiency. On tuesday that is the 5thof june, the apex court permitted the promotions on a
temporary basis till it decides the legality of the law.

The chapter 5 gives some comparative account of the affirmative action in different jurisdictions
of the world.the white affirmative action came into its existence in the case of john punch in
1640 in virginia colony. How the general assembly of virginia forbade any owner of
black.bonded labor to set them free because the blacks had lost the right to vote and they were
subjected to various kinds of extreme exploitations. The chapter five gives a detailed account of
the affirmative action in Sri L99anka, myanmar the united states of america etc. These
comparisons give the impression that the need of affirmative action demands from the state to go
forward with it in a more vigorous way than ever.

Now, chapter 6 talks about some other social assistance programs by the central as well state
governments which are primarily the affirmative actions by the state to suit the different strata of
the society meaning thereby that the state takes care of its every citizen.so a deep analysis of the
history and the current framework of the positive discrimination , we can say the indian state is a
welfare state in its true sense.

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 so the sense of my 1stobjective stands the test of my research and it remains pervaded in the
constitutionalismofindia.

I have realized that the concept of reservation and the way the indian judiciary has interpreted it
from time to time, we are moving with the aim to adopt the affirmative action in some more
ways than ever before. So the ambit of reservation under the constitution of India is very wide
and it is competent enough to meet the challenges of the future also.

The 3rdobjective that is to analyze comparative affirmative actions in various jurisdictions. After
looking at the affirmative action in the usa, uk, srilanka, malaysia etc., i am conceived with the
idea that by and large all the welfare and democratic countries have this idea of welfare in it. The
shape and purpose changes according to the prevailing situations.

My hypothesis that “the positive discrimination as envisaged under the constitutional law of
India has not yielded the desired results due to the politics of identity and symbolism” remains
partially realized. The reason for that is the political hijacking of the functioning of our
democratic system and the concept of populist policies by the ruling regime to garner the vote
bank support from the targeted population. So far as this angle is a part of the affirmative action,
the idea is not going to succeed as desired by the framers of the constitution. We need to keep
ourselves aware of the deep rooted political philosophy of any populist affirmative action by any
regime so that so we will be able to understand the value and purpose of it otherwise we will
continuously be having this welfare as a concept, but a reality. So we need to have a certain
degree of dis-entanglement of the politics of caste, religion and region from the philosophy of
welfare . These different identities are not going to let us realize the real fruits of the concept of
welfare.

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