APROJECT ONProtective Discrimination- A Challenging Issue in the
Contemporary SocietySubmitted to: DR. Deepak SrhivastavaFaculty of
Compensatory Discrimination
Submitted by:Puneet Tigga Roll no. 9610th semester: b.a. l.l.b
(hons.)
Date Of Submission 9th April 2015
HIDAYATULLAH NATIONAL LAW UNIVERSITYRAIPUR (C.G)
Certificate of Declaration
This is to certify and declare that the present study on the
Protective Discrimination- A Challenging Issue in the Contemporary
Society is an original piece of research work. However, references
have been made at places where the help of different books,
articles and journals and web sources has been taken.Thereby, this
piece of research work is purely based on original research
analysis and wholly based on the secondary sources like judgments,
commentaries, journals and even articles related to the
topic.Puneet TiggaSem-XRoll NO- 96
Acknowledgements
I, Puneet Tigga, feel myself highly elated, as it gives me
tremendous pleasure come out with work on the topic. Words fail to
express my deep sense of glee to my teacher, Dr. Deepak Shrivastva
who enlightened me with his beautiful work on this topic. I would
like to thank him for guiding me in doing all sorts of researches,
suggestions and having discussions regarding my project topic by
devoting his precious time. I thank H.N.L.U for providing Internet
facilities. And lastly I thank my friends and all those who have
helped me in the completion of this project.
Thanking you,Puneet TiggaSEMESTER-IXRoll No-96
Table of
contentIntroduction.................................................................................................................................1Research
Methodology
.........................................................................................................3Problem/
Issue:-
............................................................................................................................3Rationale:-............................................................................................................3Objective
and Aims
:-,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,.,,,,,,,,,,,,,,,,,,,,,,,,,,,,4Review
Of
Literature:-................................................................................................................4Hypothesis:-.......................................................................................................................5Nature,
Sources & Type Of
Study.............................................................................5Limitation:-
...........................................................................................................................6Contribution.........................................................................................................................6Conclusion
&
Suggestion.............................................................................................39Bibliography......................................................................................................40
Chapter-IIntroduction
Our society has always been full of inequalities. It was a caste
ridden, stratified hierarchical society, and a particular segment
of the society had been denied the bare human rights. Their
education, wages, living conditions, social status was dictated by
the whims of upper strata of society, reducing them to destitution.
The economic backwardness brought social awkwardness which
consequently made them downtrodden and thus depriving them even of
the dignity of life. In a society compartmentalised on caste basis,
upper castes controlled the levers of power enabling them to run
their whips, prejudicial to the interests of lower segments of the
society. Lower castes had to serve the upper castes without having
any say and grievance redressal mechanism. This inhumane and
barbaric condition perpetuated for centuries, till "we the people"
realised the malady impelling the framers of our constitution to
think.
Any democratic society faces the challenge of harmonising two
essentially contradictory political concepts--one, equality before
the law irrespective of religion, caste, creed, race, and gender,
and the other, social justice at the cost of the same commitment
for equality before the law. Even a developed democracy like the
United States is no exception to the rule and has taken recourse to
affirmative action to ensure justice for the less privileged
sections of the society at the cost of individual merit and
equality of all citizens before the law. In India large numbers of
people have experienced social discrimination through centuries on
account of its peculiar institution called the caste system,
efforts have been made to provide redress for these
under-privileged sections, through the policy of reservations or
quotas for them in jobs, seats in educational institutions and
legislatures, and in governmental aid, loans and other
developmental assistance.
In all, four under-privileged categories have either received
benefits under the scheme or have been seeking such benefits,
namely the Scheduled Castes (SCs) and the Scheduled Tribes (STs),
the Other Backward Classes (OBCs), the religious minorities or
sections thereof, and lately, the women. This project discusses
these categories from a political perspective. Its scope however,
is limited to assessing the schemes both under operation as well as
under consideration, only at the national level. The experiences of
different states have been referred to only occasionally to provide
an example or to make a particular point.
Research Methodology and objective
Chapter -II
Meaning and BackgroundProtective discrimination is the policy of
granting special privileges to the downtrodden and the
underprivileged sections of society, most commonly women. These are
affirmative action programs, most visible in both the United States
and India, where there has been a history of racial and caste
discrimination. The practice is most prominent in India, where it
has been enshrined in the constitution and institutionalized.
The need to discriminate positively in favour of the socially
underprivileged was felt for the first time during the nationalist
movement. It was Mahatma Gandhi, himself a devout Hindu and a
staunch believer in the caste system, who was the first leader to
realise the importance of the subject and to invoke the conscience
of the upper castes to this age-old social malady of relegating
whole communities to the degrading position of untouchables. He
also understood the political logic of inducting this large body of
people into the political mainstream in order to make the freedom
movement more broad based. By renaming these untouchables as
Harijans (people of God) he tried to give this policy a religious
sanction so as not to disturb the traditional sensitivities of the
caste Hindus more than was really necessary.
The Constitution of independent India which largely followed the
pattern of the Government of India Act, 1935, made provisions for
positive discrimination in favour of the Scheduled Castes and
Scheduled Tribes (SCs & STs) which constituted about 23% of the
divided Indias population. Besides reserving parliamentary seats
for them they were given advantages in terms of admission to
schools and colleges, jobs in the public sector, various pecuniary
benefits for their overall development, and so on. The constitution
indeed guaranteed the fundamental right of equality of all citizens
before the law but it also categorically laid down that nothing in
the constitution shall prevent the State from making any special
provision for the advancement of any socially and educationally
backward classes of citizens or for the Schedules Castes and the
Scheduled Tribes. Some of the constitutional provisions which aimed
at positive discrimination are:# Article 17: Abolition of
untouchability and making its practice in any form a punishable
offence.# Article 46: Promotion of educational and economic
interests.# Article 16 and 335: Preferential treatment in matters
of employment in public services.# 330 and 332: Reservation of
seats in the Lok Sabha and State Assemblies.
Later, the job-related positive discrimination was extended to
government-supported autonomous bodies. A 1974 Government order
laid down that all such bodies which employed more than 20 people,
and where 50% of the recurring expenditure was met out of
grants-in-aid from the Central Government, and which received
annual grants-in-aid of at least Rs.200,000 should invariably
provide for reservation of SCs and STs in posts and services. The
general rule which exempted the scientific and technical posts from
the purview of positive discrimination was applicable to the
autonomous bodies too.
The RecordSCs and STsSpecific provisions for reservations in
services in favour of the members of Scheduled Castes and Scheduled
Tribes have been made as follows in the Constitution of India:-
Article 16(1): There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any
office under the State.
Article 16(4): Article 16 provides for equality of opportunity
for all citizens in matters relating to employment or appointment
to any office under the State, Nevertheless, nothing in this
Article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward
class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
There have been two Constitution Amendments incorporated in
Article 16(4), they are:-Article 16 (4-A) : Nothing in this article
shall prevent the state from making any provision for reservation
in matters of promotions, with consequential seniority, to any
class or classes of posts in services under the state in favour of
SCs/STs which in opinion of state, are not adequate by represented
in the services under the state.
The 77th Amendment to the Constitution has been brought into
effect permitting reservation in promotion to the Scheduled Castes
and Scheduled Tribes.
Thus, by amending the Constitution, the Parliament has removed
the base as interpreted by Supreme Court in Indira Sawhney that the
appointment does not include promotion. Article 16(4A) thus revives
the interpretation put on Article 16. Rule of reservation can apply
not only to initial recruitments but also to promotions. But no
promotion can be made in promotion posts for the OBCs.
The Supreme Court has emphasized that Article 16(4A) ought to be
applied in such a manner that a balance is struck in the matter of
appointments by creating reasonable opportunities for the reserved
classes as well as for the other members of the society.
Article 16 (4-B): 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 for 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 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 Constitution (Eighty- First Amendment) Act, 2000 has added
Article 16(4B) to the Constitution. The Amendment envisages that
the unfilled reserved vacancies are to be carried forward to the
subsequent years and these vacancies are to be treated as distinct
and separate from the current vacancies during any year. The rule
of 50% reservation laid down by the Supreme Court is to be applied
only to normal vacancies. This means that the unfilled reserved
vacancies can be carried forward from year to year without any
limit, and are to be filled separately from the normal vacancies.
This Amendment also modifies the proposition laid down by the
Supreme Court in Indira Sawhney.
Article 335: This article provides that the claims of the
members of the SCs and STs shall be taken into consideration,
consistently with the maintenance of efficiency of administration
in the making of appointments in services and posts in connection
with the affairs of the Union or of a State.
Reservation for backward classes in IndiaARTICLE 16(4):- This
clause (4) expressly provides for the reservation of appointments
or posts in favour of any backward class of citizens which, in the
opinion of the state is not adequately represented in the services
under the state. Here the term state denotes both Central and state
governments and their instrumentalities.
The power conferred on the State can only be exercised in favour
of a backward class and therefore, whether a particular class of
citizens is backward, is an objective factor to be determined by
the state.
It was held in Triloki Nath v. State of J & K, that State
determination must be justiciable and may be challenged if it is
based on irrelevant considerations.
In Mohan Kumar Singhania v. Union of India, explaining the
nature of Article 16(4) the Supreme Court has stated that it is an
enabling provision conferring a discretionary power on the state
for making any provision or reservation of any backward class of
citizens which in the opinion of the state is not adequately
represented in the service of the state. Article 16(4) neither
imposes any constitutional duty nor confers any Fundamental Right
on any one for claiming reservation. The state government takes the
total population of the backward class and their representation in
the state services and after doing the necessary exercise makes the
reservation and provides the percentage of reservation for the
posts, then the percentage has to be followed strictly.
What are backward classes U/Art. 16(4) of the constitution?There
was an overwhelming majority in the nation that was still backward
socially, economically, educationally, and politically. These
victims of entrenched backwardness comprise the present scheduled
castes (SC), scheduled tribes (ST) and other backward classes
(OBC). Even though, these classes are generically the "Backward
Classes, the nature and magnitude of their backwardness are not the
same.
The words ' "backward class of citizens" occurring in Article 16
(4) are neither defined nor explained in the Constitution though
the same words occurring in Article 15 (4) are followed by a
qualifying phrase, "Socially and Educationally'' backward
classes.
In the course of debate in the Parliament on the intendment of
Article 16 (4), Dr. B.R. Ambedkar, expressed his views that
backward classes are which nothing else but a collection of certain
castes.
Incidentally, it is also necessary to point out that the Supreme
Court in all its decisions on reservation has interpreted the
expression `backward classes' in Article 16 (4) to mean the
"socially and educationally" backward. It also emphatically
rejected "economic backwardness" as the only or the primary
criterion for reservation under article 16 (4) and observed that
economic backwardness has to be on account of social and
educational backwardness. The true meaning of this expression has
been considered in a number of cases by the Supreme Court starting
from Balaji to Indira Sawhney.
(1) In M.R. Balaji v. State of Mysore, it was held that the
caste of a group of persons cannot be the sole or even predominant
factor though it may be a relevant test for ascertaining whether a
particular class is backward or not. The two tests should be
conjunctively applied in determining backward classes: one, they
should be comparable to the Schedule Castes and Schedule Tribes in
the matter of their backwardness; and, two, they should satisfy the
means test, that is to say, the test of economic backwardness laid
down by the State government in the context of the prevailing
economic conditions. Poverty, caste, occupation and habitation are
the principal factors contributing to social backwardness.
(2) In R. Chitralekha and Anr. v. State of Mysore and Ors. and
Triloki Nath v. J & K State and K.C. Vasanth Kumar v.
Karnataka:The apex Court explaining the meaning of Class observed
that The quintessence of the definition of Class is that a group of
persons having common traits or attributes coupled with retarded
social, material (economic) and intellectual (educational)
development in the sense not having so much of intellect and
ability will fall within the ambit of 'any backward class of
citizens' under Article 16 (4) of the Constitution.
(3) Further in R. Chitralekha v. State of Mysore, it was stated
that: ...what we intend to emphasize is that under no circumstances
a "class" can be equated to a "caste", though the caste of an
individual or a group of individual may be considered along with
other relevant factors in putting him in a particular class.
(4) In State of Andhra Pradesh v. P. Sagar, it has been observed
that: The expression "class" means a homogeneous section of the
people grouped together because of certain likenesses or common
traits and who are identifiable by some common attributes such as
status, rank, occupation, residence in a locality, race, religion
and the like. In determining whether a particular section forms a
class, caste cannot be excluded altogether. But in the
determination of a class a test solely based upon the caste or
community cannot also be accepted.
(5) In Triloki Nath v. J & K State (II) Shah, J., speaking
for the Constitution Bench has reiterated the meaning of the word
'class' as defined in the case of Sagar and added that "for the
purpose of Article 16 (4) in determining whether a section forms a
class, a test solely based on caste, community, race, religion,
sex, descent, place of birth or residence cannot be adopted,
because it would directly offend the Constitution.
The expression backward class is not used as synonymous with
backward caste or backward community. The members of an entire
caste or community may in a social, economic and educational scale
of values at a given time be backward and may on that account be
treated as a backward class, but that is not because they are
members of a caste or community, but because they form a class.
(6) In A. Peeriakaruppan, etc. v. State of Tamil Nadu: The
Supreme Court observed that A caste has always been recognised as a
class. If the members of an entire caste or community at a given
time are socially, economically and educationally backward that
caste on that account be treated as a backward class. This is not
because they are members of that caste or community but because
they form a class.
(7) Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The
State of Kerala and Anr. was of the view that In ascertaining
social backwardness of a class of citizens it may not be irrelevant
to consider the caste of the group of citizens. Caste cannot
however be made the sole or dominant test...
(8) In Indira Sawhney and Ors. Vs. Union of India and Ors. , the
Court observed that:-
# The meaning of the expression backward classes of citizens is
not qualified or restricted by saying that it means those other
backward classes who are situated similarly to Scheduled Caste
and/or Scheduled Tribes. Backwardness being a relative term must in
the context be judged by the general level of advancement of the
entire population of the country or the State, as the case may
be.
# There is adequate safeguard against misuse by the political
executive of the power u/Art. 16(4) in the provision itself. Any
determination of backwardness is neither a subjective exercise nor
a matter of subjective satisfaction. The exercise is an objective
one. Certain objective social and other criteria have 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.
# Caste neither can be the sole criterion nor can it be equated
with 'class' for the purpose of Article 16 (4) for ascertaining the
social and educational backwardness of any section or group of
people so as to bring them within the wider connotation of
'backward class'. Nevertheless 'caste' in Hindu society becomes a
dominant factor or primary criterion in determining the
backwardness of a class of citizens.
# Unless 'caste' satisfies the primary test of social
backwardness as well as the educational and economic backwardness
which are the established and accepted criteria to identify the
'backward class', a caste per se without satisfying the agreed
formulae generally cannot fall within the meaning of 'backward
class of citizens' under Article 16 (4), save in given exceptional
circumstances such as the caste itself being identifiable with the
traditional occupation of the lower strata - indicating the social
backwardness. And Class has occupation and Caste nexus; it is
homogeneous and is determined by birth. It further approved
Chitralekha case.
(9) Further in case of Jagdish Negi v. State of U.P. the Court
held Backwardness is not a static phenomenon. It cannot continue
indefinitely and the State is entitled to review the situation from
time to time.
Part III of the constitution in relation to reservation in
public servicesArticle 14 is in general terms whereas Arts. 15 and
16 are of specific nature. Shortly put the combined effect of Arts.
14, 15 and 16 as far as public employment is concerned, is that
they guarantee non-discriminatory treatment of citizens in matters
relating to public employment. Religion, race, caste, sex, descent,
place of birth, residence or any of them cannot be the basis for
discrimination against a citizen in matters relating to public
employment or office under the state. Reservation in favour of
backward classes of citizens is dealt with by cl. (4) of Art.16. It
is an enabling provision and is in the nature of a provision or an
exception to cl. (1) of Article 16 of the Constitution.
Whether Art.16 (4) an exception toArt.16 (1)?Although cl. (4)
has an over-riding flavour as the opening words Nothing in the
Article shall prevent the State from., suggest as Mudholkar, J.
referring to these words in Devdasan pointed out: The over-riding
effect of cl.(4) on cls. (1) and (2) could only extend to the
making of a reasonable number of reservation of appointments and
posts in certain circumstances. That is all.
The view in T.Devadasan v. Union of India, that Art. 16(4) was
an exception to Art. 16(1) received a severe setback from the
majority decision in State of Kerala v. N.M. Thomas, which held
that 16(4) was not an exception to Art.16(1) but that it was merely
an emphatic way of stating a principle implicit in Art.16(1). The
view taken in N.M Thomas has been accepted as the correct one and
by the majority in Indira Sawhney where the Court pointed out:
Indeed, even without clause (4), it would have been permissible for
the State to have evolved such a classification and made a
provision for reservation of appointments/posts in their favour.
Clause (4) merely puts the matter beyond any doubt in specific
terms.
Article 16(4) and Article 335Article 335: provides that the
claims of the members of the SCs and STs shall be taken into
consideration, consistently with the maintenance of efficiency of
administration in the making of appointments in services and posts
in connection with the affairs of the Union or of a State.
There has been some debate as to whether Art.335 had any
limiting effect on the power of reservation conferred by Art. 16
(4). The nine judge bench of the Supreme Court in Indira Sawhney
considered the argument that the mandate of Art.335 implied that
reservation should be read subject to the qualification engrafted
in Art.335 i.e. consistently with the maintenance of efficiency of
administration. Dealing with the argument majority framed an issue
as to whether reservations were anti-meritarian? The majority then
observed that may be efficiency, competence and merit are not
synonymous concepts; may be it is wrong to treat merit as
synonymous with efficiency in administration and that merit is but
a component of the efficiency of an administration.
Even so the relevance and significance of merit at the stage of
initial recruitment cannot be ignored. It cannot also be ignored
that the very idea of reservation implies selection of a less
meritorious person. At the same time, we recognise that this much
cost has to be paid, if the constitutional promise of social
justice is to be redeemed. We also firmly believe that given an
opportunity, members of these classes are bound to overcome their
initial disadvantages and would compete with-and may in some cases,
excel members of open competitor candidates. It is undeniable that
nature has endowed merit upon members of backward classes as much
as it has endowed upon members of other classes and what is
required is an opportunity to prove it.
But in case of Article 16, Article 355 would be relevant. It may
be permissible for the government to prescribe a reasonably lower
standard for scheduled castes/Scheduled tribes/backward classes
consistent with the requirements of efficiency of administration.
It would not be permissible not to prescribe any such minimum
standard at all. While prescribing the lower minimum standard for
reserved category, the nature and duties attached to the post and
the interest of the general public should also be kept in mind.
While on Article 355, we are of the opinion that there are certain
services and positions where merit alone counts. In such
situations, it may not be advisable to provide for reservations.
For example technical post in Research and Development
organisations/departments/institutions, superspecialities in
medicine, engineering etc.
Cent percent reservation not permissible:No cent percent
reservationThe state is not entitled to make a cent percent
reservation. That would be violative of Art.16 of the Constitution.
The Supreme Court has ruled time and again, that where there is no
only one post in the cadre, there can be no reservation for the
backward class with reference to that post either for recruitment
at the initial stage or filling up a future vacancy in respect of
that post otherwise the same would amount to 100 per cent
reservation. A single promotional post can also not be
reserved.
Application of Rotational RuleIn case of Post Graduate Institute
of Medical Education & Research, Chandigarh it has been
categorically stated that unless there is plurality of posts in a
cadre, the question of reservation will not arise because
any-attempt at reservation by whatever means and even with device
of rotation of roster in a single post cadre is bound to create
100% reservation of such post whenever such reservation is to be
implemented.
Extent of reservationThe extent of reservation should not exceed
50%In Indira Sawhney case the majority pointed out that cl. (4) of
Art. 16 spoke of adequate representation and not proportionate
representation-although the proportion of population of backward
classes to the total population would a relevant factor. After
referring to the earlier decisions of the Court, the majority
concluded that the reservation contemplated in cl. (4) of Art. 16
should not exceed 50%.
It also pointed out that for the purpose of applying the rule of
50%, a year should be taken as the unit and not the entire strength
of the cadre.
Concept of creamy layer:In the Mandal commission case, the
Supreme Court has clearly and authoritatively laid down that the
socially advanced members of the backward class, the creamy layer,
has to be excluded from the backward class and the benefit of
reservation under Article16(4) can only be given to a class which
remains after the exclusion of the creamy layer. This would more
appropriately serve the purpose and object of Article 16(4).
At present, the benefits of job reservations are most chewed up
by the more effluent sections of the backward class and the benefit
of the reservation policy is not being percolated to the poor and
the really backward class amongst them which makes them poorer and
more backward. So, the government must give effect to the
observation made my Supreme Court in Mandal case in order to
achieve social and economic justice for the whole section of
backward classes.
Reservations for MinoritiesThe current official position is
that: No scheme for minorities below the poverty line is being
implemented in the country. Still, there is a standing instruction
of the Government of India to all the Ministries/Departments of
Government of India that whenever a Selection Committee/Board
exists or has to be constituted for making recruitment to 10 or
more vacancies in Group C or Group D posts/services, it shall be
mandatory to have one member belonging to SC/ST and one member
belonging to minority community in such Committees/Boards. Where,
however, the number of vacancies against which selection is to be
made is less than 10, no effort should be spared in finding a
Scheduled Caste/ Scheduled Tribes officer and a minority community
officer for inclusion in such Committees/Boards.
Reservations for WomenOppressed and underprivileged women
(through centuries of male domination)as a whole have not received
the attention of the Indian state in terms of compensatory
discrimination. One reason for this neglect could be that there
were many leading women in Indias freedom struggle and they always
regarded themselves as equals of their male counterparts. As
emancipated women themselves they felt they would serve as role
models for womens liberation in general. Moreover, against the
background of such a great cause as national independence they felt
that emphasising group interests such as womens rights would serve
to weaken the larger struggle.
Even after independence it took many years for the demand for
womens rights to crystallise. It actually happened under UN
pressure. In the early 1960s the United Nations had asked member
nations to prepare reports on womens status. India procrastinated
for years. It responded only in the early 1970s, when the UN
decided to observe 1975 as the International Year of Women. Prime
Minister Indira Gandhi nominated the veteran freedom fighter from
West Bengal Phulrenu Guha to prepare a report on the Status of
Women in India. The report, Toward Equality, which ran into 480
pages and is frequently termed as the founding text in feminist
circles was tabled in parliament in 1975. Its recommendations,
however, were not for positive discrimination in favour of women
but against discrimination of women for which the state should be
vigilant.
Neither the Kalelkar nor the Mandal commissions had a female
member. Had there been one or some female members a demand for
reservation for women as an underprivileged social category may
have emerged. For the last couple of decades, primarily on account
of the activities of womens organisations, considerable social
consciousness has developed in favour of feminist demands.
Sensitivity to the issue is manifest in the way cabinets or the
working committees of different political parties are composed. A
recent opinion poll showed that 75% men and 79% women were in
favour of an active role of women in politics. They also favoured
reservation for women in the legislatures.
The United Front government elected in 1996, in keeping with its
Common Minimum Program and in line with the resolution adapted by
the 10th Lok Sabha has tabled the Constitution (81st Amendment)
Bill (popularly known as Womens Reservation Bill) providing for
reservation of one-third of the seats in the Lok Sabha and state
assemblies for women. Already at the panchayat level 33% of seats
are reserved for them. The bill has raised a huge controversy in
Indian politics. While on the one hand the women activists
themselves are divided about its efficacy it has vertically split
the movement between depressed class women and those champions of
the bill who see it primarily as one for gender justice. To add to
the controversy is the opposition of the OBC leaders to the bill.
They apprehend that the bill would deprive them of their
hard-earned gains made through years of agitation. They fear that
since their women folk are much more backward compared to their
upper caste counterparts all seats would be taken by the upper
castes tilting the political balance once again in favour of the
upper castes.
Different PerspectivesMerit versus Social JusticeThe most common
criticism raised against the policy of reservations is that it is
at the cost of meritocracy and that it promotes mediocrity which a
developing society like India can ill afford. While apparently and
theoretically the argument seems well-founded there is neither
evidence to support the fear nor is it true to say that meritocracy
would be the norm once reservation is lifted. All kinds of
undocumented reservations operate in India through kinship
connections, caste connections and professional connections. For
instance the Delhi University Teachers Association (DUTA) is
generally opposed to the OBC reservation but does not mind asking
for reservations for the wards of the teachers or for weightage in
their favour for university enrollment. Commenting on the impact of
reservations on the educational standard, sociologist Andre
Beteille writes: Everybody says that the standards have fallen in
the Indian universities. However I find it difficult to judge,
firstly, whether standards have in fact fallen, and secondly, if
they have fallen, whether the fall has been due to affirmative
action. At the bottom end of the scale, a very large proportion of
the present crop of graduates would not have graduated in the
1950s. On the other hand the number of good students is probably
higher-so at the top end of the scale, standards are maintained. I
would attribute the lowering of standards in this particular sense
to the massive and sometimes reckless expansion of higher education
under political pressure.
It is probably not correct that the weightage system would
perpetually introduce bad students to the university. From the
record of the south Indian states it appears that the more the
backward classes enter the system the more their standards improve
on account of competition amongst themselves.
Inherent ContradictionsThe more fundamental question, however,
is how far the quotas have and other privileges helped the target
groups. As we have seen above the progress in this regard has at
best been marginal. Whatever progress has been registered by the
depressed classes it is more or less proportionate to the overall
progress achieved by the nation. As target groups they should have
shown a visibly better record, but this has not happened. In a
country like India where poverty, illiteracy and deprivation are so
widespread, it is a questionable proposition to think in terms of
upliftment for particular social groups, that too by emphasizing
reservations alone. A report on the state of primary education in
India brought out by the India Today portrays a depressing picture
of the Indian states failure in this regard. The problem as such is
much larger and mere targetting particular sections of society
would not do. It is surmised that since reservations are the least
expensive and politically most rewarding the political parties find
them the easiest policy options available to them.
A related question is whether the privileges are being cornered
by the lites amongst the target groups. One common criticism
against the reservation policy is that it has benefited only a
small section of them. According to estimates only 6% of the SC
families have benefited from the policy. It must, however, be
admitted that even this small number has thrown up leadership for
the community to bargain for the larger interests of the community
at large. Moreover, it is a fact of life that in any community
within a competitive polity the initial beneficiaries are
invariably the lites. This criticism, however, is largely valid in
respect of the OBCs where some of the backward castes are way above
others amongst them. As such, any reservation policy meant for the
OBC community as a whole, is bound to end in ineffectiveness in the
long run by this internal contradiction alone. As most of the
underprivileged amongst the OBCs would ask for their rights there
would be cleavages in the OBC identity as is now being seen in
Bihar. There the Kurmis and the Koiris are opposing the Yadavs,
both belonging to the OBC category. Moreover, with other demands
being raised for quota allocations by women, professional groups,
the poor from the upper caste Hindus, and so on, there is a
possibility that the entire system of OBC reservation would
collapse as a result of these divisions.
Persistence of Caste PrejudiceOne other issue which needs to be
discussed here is whether there can ever be any real improvement in
the lot of the underprivileged sections of the society, whether
they belong to the SC/STs or the OBCs, without attacking the caste
system itself, this being the essence of the debate between Gandhi
and Ambedkar. Can the elimination of the stigma experienced by the
under-privileged be achieved through the philanthropy and grace of
the upper caste Hindus or has it to be earned or wrested by the
under-privileged themselves through their struggles, even violent
struggles. If violence is inherent in the circumstances would it
not perpetuate the caste cleavages at the cost of social harmony?
In any event it has been noticed that the quota system has
eliminated whatever goodwill the upper castes had for the lower
castes. As one non-Indian scholar wrote in 1979 In the course of my
visits to India over two decades I have noticed an erosion and
virtual disappearance of a liberalminded public opinion supporting
private efforts to improve opportunities for the S.C.
This lack of concern is manifest in the record of private sector
employment. The pervasive over-estimation of the amount and
effectiveness of preferential treatment reinforces the notion that
enough (or too much) is already being done and nothing more is
called for. A recent study based on interviews of 500 Punjab
government employees stationed in Chandigarh reveals the
deep-seated prejudice among the non-SCs against the quota
privileges meant for the SCs. Particularly prejudiced are the Class
II and III categories of the employees. Caste conflicts are rampant
as a reading of the Annual Reports of the Home Ministry reveals.
During 1996 there were 672 caste-related incidents involving all
the three broad caste categories, namely, the Forward Castes, the
OBCs and the SCs.
A Spectre of Two IndiasIn the current context the most critical
question is whether two Indias are being created by two
diametrically opposite socio-political forces-the demand for
modernisation on the one hand bolstered by the opening up
Affirmative Action in India 163 of the economy and its integration
into the techno-intensive global economy -- and on the other, the
demand for social justice undermining the core of that theory. One
calls for the withdrawal of the state and the other assigns to the
state the role of the greatest dispenser of equity. Against this
background it would be increasingly difficult for the state to
implement its policy of reservations especially where the OBCs are
concerned. On the one hand the number of government jobs is
shrinkig while on the other pressure for more jobs is mounting.
There is yet another related issue. Greater liberalisation of
the economy means more modernization of trade and industry. The
traditional vocations of the backward classes such as cleaning,
haircutting, fishing and tanning are under threat of being
controlled by the upper castes particularly in the urban areas.
With the growing use of technology in these trades they are no
longer looked down upon as occupations. Therefore, the backwards
cannot depend any more upon the state; they would have to respond
to the market as well. This brings into question the broader
recommendation of the Mandal Commission.
ConclusionThe debate over positive discrimination in India is
acrimonious and is increasingly finding expression in violence. But
a democracy which is essentially a social contraption is neither
dictated by logic nor by ethics. At the root of democratic success
is social engineering which is effected through political
bargaining. In India the process is on and only the future would
tell whether its experiments were in the right direction or
not.
Social categories are neither static nor monolithic. But in
India the hierarchical stratifications have by and large survived
for centuries and they continue to be politically relevant. In the
given situation the policy of reservation seems to continue for an
indefinite period, at least for the SC/STs. But this is the easiest
thing that the state could think of. The real challenge for the
state should be to make the disadvantaged groups competitive
through raising their standards so as to let them be on par with
the traditionally successful upper classes. That is cost intensive
and for that there has to be a shift in the dynamics of power. The
disadvantage would have to come to the fore of politics. The
present Dalit movement seems to be straws in the wind indicating
this penchant for transformation which is bound to be violent.
The same may not, however, be said about the OBCs. Unlike the
SCs and STs the so called OBCs have held political power in
different historical periods in different regions of India. They
are neither as socially stigmatized nor at the bottom of the
economic hierarchy as the scheduled castes. In short they are not
such an ostracised lot as the SCs have been. Given this situation
the demand for OBC reservation is indeed politically motivated, the
logic behind which is largely indefensible. In any case,
increasingly the role of the state would be in question. The
assumption here is that the Indian society is traditionally violent
and vertically and horizontally disintegrative. It is the enormous
military power in the hands of the central government, both during
the Mughals and the British, that actually contained it. The
apologists for state power argue in favour of a militaristic role
of the state to maintain societal order while the champions of
civil society put the blame squarely on the state for the growing
violence in the society. The debate warrants a closer scrutiny
against the background of the social acrimony that the policy of
reservation has accentuated
Bibliography Deshpande, V.S., Judicial Review of Legislation
(1975), Eastern Book Company, Lucknow. Dr. Jha, C.D., Judicial
Review of Legislative Acts, (II Edition, 2009), Lexis Nexis
Butterworths Wadhwa, Nagpur. Bhandari Renu, Judicial Control of
Legislation in India and USA (2001), Vol. I &II, University
Book House Pvt. Ltd., Jaipur. Sir Michael Supperstone, James
Goudie, Sir Paul Walker, Judicial Review (2010), IV Edition, Lexis
Nexis, Delhi. Prof. Jain, M.P., Indian Constitutional Law (V
Edition, 2008), Wadhwa and Company, Law Publishers, New Delhi.
Singh, M.P., Shukla V.N.s Constitution of India (XI Edition, 2008),
Eastern Book Company, Lucknow. Dr. Pandey, J.N., Constitutional Law
of India (XXXXIII Edition, 2006) Central Law Agency, Allahabad.
Sharma Kanahaiyalal, Reconstitution of the Constitution of India
(2002), Deep and Deep Publications Pvt. Ltd., New Delhi. 10. Gurram
Ramchandra Rao, Judicial Review in India,
Http://Vlex.In/Vid/Judicial-Review-India-29344398, September 23,
2010 11. Research Article- Jindal Sunny (2011), Supreme Court of
India and judicial Review, Nalsar University of Law, Hyderabad. 12.
Research Article- Reddy M Sundara Rami,
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