Sunteți pe pagina 1din 39

1

Chapter I

INTRODUCTION

1.0.0 INTRODUCTION

Affirmative action has noble aims, which are consistent with high moral values. It

is not intended to discriminate against any group based on their skin colour or their

gender; any lessened opportunity faced by a group is an incidental upshot (a ‘collateral

damage’?) of addressing a grave issue. It is not intended to simply fill quotas without

regard to minimum qualifications; it is merely an attempt to remedy past injustices or

oversights, to ensure a better distributive justice. Being man-made, it is not a perfect

remedy, for perfection is the monopoly of God the Almighty, for those who believe in

His existence. ‘Discrimination’ will continue to exist as long as the sun continues to rise

from the east, but we hope it is of the positive kind, like the need to ‘separate the chaff

from the wheat’ in our everyday life. Affirmative action is man’s small attempt at

containing blatant discrimination, in order to make life more bearable for the majority of

peace-loving souls.

Affirmative action is one of the most profound public policies ever introduced by

the American legislature in the 20th Century (Soni, 1999)1 in 1961, President John F.

Kennedy signed Executive Order 10925, ruling that federal contractors should “take

affirmative action to ensure that applicants are employed without regard to their race,

1
Soni, Vidu. (1999). Morality vs. mandate: Affirmative action in employment. Public Personnel
Management. Winter 1999. Vol. 28 (4), pp. 577-598.
2

creed, colour or national origin” (Shaw and Barry, 2004)2. The policy was originally

conceived as a way of going the extra mile to attract and retain minority employees (Noe,

Hollenbeck, Gerhart and Wright, 2003)3, who hitherto had been underrepresented in the

workplace, relative to their proportion in the population. In the American experience,

minorities (mainly people of African and Hispanic origin) and women were discriminated

against by white employers.

Most African Americans have descended from slaves who had worked in the

plantations of the South. Following their emancipation after the American Civil War,

they were discriminated in the workplace, in schools and colleges. After affirmative

action became law, many white males felt that they were being discriminated against, in

favour of minorities and women. To them, affirmative action is “reverse discrimination,”

i.e., a discrimination against a majority race in favour of minority races and women.

1.1.1 Discrimination in India - The Caste System

There are many other countries and nations that are characterised by inequalities

including social inequalities but in India these inequalities are highly structured in the

form of caste. Caste has existed in India for such a long time and has undergone

considerable change but it still involves millions of people. The continuation of

superiority and inferiority by reason of ones skin colour, religion and economic and

social status is a world-wide phenomenon. The caste system was not the creation of a

2
Shaw, W.H. and Barry, V. (2004). Moral Issues in Business. (9th Ed.) Belmont: Wadworth.
3
Noe, R. A., Hollenbeck, J.R., Gerhart, B. and Wright, P.M. (2003). Human Resource Management:
Gaining Competitive Advantage (4th Ed.). NY: McGraw-Hill, Inc.
3

single person like the raja (king). To a certain extent it developed out of a system of

social practice that became a norm or way of life over several thousands of years.

The issue of caste is a very complex and complicated one. Caste is perceived as

"an exclusively Indian phenomenon which is not paralleled by any other institution

elsewhere in its complexity, elaboration and inflexibility". Kroeber describes the caste

system as a "system of social stratification, examples of ranked aggregates of people, that

are usually rigid, birth-ascribed, and permits no individual mobility". In the caste system

everyone is classified. The castes, like the system of apartheid and racial discrimination,

teach us a fundamental social principle; hierarchy. This classificatory system assumes

that certain traits, qualities, functions, characteristics or powers are inherent in and

definitive of each of the varnas. This system of caste is enormously complicated and not

easily understood. The following paragraph attempts to simplify the issue of caste so as

to give the reader an understanding of how the system works.4

There are many and varied theories about the establishment of the caste system.

These include religious, biological and historical theories.5 According to the caste system

a person is regarded as a part or member of the caste into which he or she is born. Such

person therefore remains within that caste until their death, although the exact standing of

that caste may vary among the regions of India and over time. Thus, caste is a many-

4
Deane T. (2009), “A Commentary On The Positive Discrimination Policy Of India”, P.E.R., Vol.1,
PP.28-52, ISSN 1727-3781.
5
The biological theory of the caste system claims that all existing things have essentially three qualities
in different ratios. Sattva qualities include wisdom, intelligence, honesty, goodness and other positive
qualities.Rajas include qualities like passion, pride, valour and other passionate
qualities. Tamas qualities include dullness, stupidity, lack of creativity and other negative qualities.
People with different doses of these inherent qualities adopted different types of occupation. It was this
difference in qualities and occupation that was the origins of the caste system. See for instance Buhler
"Manu".
4

layered social hierarchy developed several millenniums ago. In Hindu custom the caste

system owes its origins to the four varnas.6 One of the religious theories gives details on

how the four varnas were founded.7

Accordingly, there are five different levels or categories of this system. They are

the Brahman, Kshatriya,Vaishya, Shudra, and Harijans ranked in accordance of

hierarchy. Within each of these categories are the actual "castes" or jatis. It is within

these ranked categories that people are born, in which they marry, and in which they die.

This system has worked well for Indian people in segregating them and even now plays a

fundamental role in contemporary India. It therefore becomes interesting to see how

positive discrimination has affected the caste system and its people therein.

It has been argued that in the general sense, some societies are actually or were

caste-based in nature and these include countries like South Africa during the era of

apartheid and the South of the United States of America until the Civil Rights movement.

Nevertheless, differentiations arise when comparing caste-like systems in other nations to

India. In other countries, like South Africa and the United States of America, the

separation between one group and the other was typically along ethnic or racial lines.8 In

India, the separation was more indistinct as one caste in India would appear very much

like another. Like race, caste is something one is born into. However, caste in India is

6
Buhler G. (1969), "Manu: The Laws of Manu" in Sacred Books of the East, Volume 25 (translated)
Dover, New York.
7
Doniger W (1991), “The Laws of Manu”, (translated by Smith KB), Penguin Books: London.
8
Sachs A. (1992), "Affirmative Action and Good Government: A fresh look at constitutional
mechanisms for re-distribution in South Africa" Alistair Berkeley Memorial Lecture 14-15 November
1991, Cape Town.
5

more of a social structure, in contrast to the situation in the US, where "race is a fixed and

obvious physical condition".9

Another theory relating to the beginnings or origins of caste has to do with the

time that India was colonised by the British. India was once a British colony. The British

left behind them in India a legacy of their ideologies and culture and even today it is

evident that English, the language of their oppressors, is a very important and respected

language in India. The British influence is apparent even in most of the laws in India.

Some laws, as in South Africa, have been directly adopted and adapted from the English

laws.

Some researchers propose that the resultant representation of the caste system was

to a great extent the product of European racialist theories, and the benefit of colonial rule

as a phenomenon grounded in Indian cultural realities. Contemporary researchers further

propose that preceding the colonial period castes were much more open and flexible. This

proposition is supported by various passages in the Vedas which indicate that the

four varnas were originally based on occupations and not simply decided by one's birth.

It was at a later stage that the present inflexible caste system came into place.

However, with regard to the caste system, the first effect of importance that the

British had on the caste system was to reinforce it. It has been argued that the British saw

the advantages in preferring some groups to others. As the Brahmins were once very

9
Volokh Alexander (1996), “Quotas in India Have Yet to Create Harmony”, Los Angeles Daily Journal,
November 5, 1996, volokh.com/sasha/quotas.html.
6

powerful in influencing the people of India, they gave returned to the Brahmans special

privileges that the previous Muslim rulers had taken away.

Even though privileges were given to certain of the groups in India, for the most

part the discriminatory practices that were practised amongst the various groups were

completely ignored by the British. Some have argued that this attitude was seen as a form

of indirect support for the caste system by the British. The overall British policy towards

caste was seen as a policy of non-interference.10

While researchers hold opposing views on the origins of the caste system in India,

they hold the same opinion that it is a very ancient institution that has led to vast

inequalities in Indian society. The extreme manifestation of such inequalities in India led

to a growing awareness of the need for reform. 11 Affirmative action was needed to

outweigh the imbalances of the past. In India, affirmative action is known as "preferential

treatment", "protective discrimination" or "reverse discrimination". It is known by the

name of reverse discrimination because it involves discrimination in favour of those who,

until recently, had themselves been the victims of discrimination.12 The phrase "reverse

discrimination" may mean different things to different people. The phrase is sometimes

charged with being a term of prejudice and is restricted to refer to those situations where

an absolute preference is given to the preferred groups. 13 In India the term most

commonly used is positive discrimination.14

10
Lamb B. (1970), “India: World in Transition”, Praeger, New York.
11
Anand C.L. (1987), “Equality Justice and Reverse Discrimination”, Mittal Publications, Delhi.
12
Fischer S. (1996) "Affirming Equal Opportunities For White Males", People Dynamics, pp.30-34.
13
Brounaugh R (ed) (1978), "Authority, Equality, Adjudication, Privacy" in Philosophical Law Vol.II,
Greenwood Press, London.
14
Andrews Y. (1992), "Affirmative Action: A Suspected Equaliser?", SAIPA: Journal of Public
Administration, pp.34-43.
7

In the preamble to the Constitution of India, negative public discrimination on the

basis of caste is forbidden. However, ranking according to one's caste and caste-based

interaction have transpired for centuries and it seems that they will carry on doing so well

into the predictable future. As stated earlier, caste systems in India and caste-like groups

are ranked. Within most communities or townships (villages), the relative rankings of

each locally represented caste is known and people's attitudes toward one another are

continuously fashioned by this knowledge. The caste system is seen as a closed assembly

whose members are strictly confined in their choice of employment and the amount of

social involvement. One's status in society is decided by the caste of one's birth and may

hardly ever be transcended. A specialised labour group may function as a caste inside a

society otherwise free of such distinctions. In general, caste serves to uphold the status

quo in the Indian social order.

It is because of this hierarchal construction, with its rising order of opportunities

and its sliding order of disabilities, which has been in operation for about 3000 years, that

there was and continues to be an overwhelming majority in the nation that are socially,

economically, educationally, and politically backward. These victims of entrenched

backwardness comprise the present Scheduled Castes (SCs), Scheduled Tribes (STs) and

Other Backward Classes (OBCs). These classes are generically called the "backward

classes", but each class's nature and magnitude of backwardness are not the same.15

15
Sharma B.A.V. and Reddy K.M. (eds) (1982), “Reservation Policy in India”, Light and Life, New
Delhi.
8

1.1.2 Reservations

The Indian government has a policy of compulsory compensatory discrimination

which comprises various preferential schemes. The policy initiative most commonly

utilized by them to offset the inequalities of society is a policy of reservations.16

Reservations are a type of affirmative action whereby a proportion of seats are set

aside for the previously disadvantaged. Reservations take place in the "Parliament of

India, state legislative assemblies, central and state civil services, public sector units,

central and state government departments and all public and private educational

institutions". According to the Indian Constitution the exception lies in the minority and

religious educational institutions for the socially and educationally backward classes of

citizens or the Scheduled Castes and Scheduled Tribes, who are perceived by the

government to be inadequately represented in these services and institutions.17 Therefore

the term "reservations" indicates a set allocation of certain public service positions for

recognised minorities. This term encompasses the allocation of seats in educational

institutions as well.18

The stated reason for the implementation of reservation is the necessity to

advance the needs and interests of any socially and educationally backward classes of

citizens, such as the scheduled castes and scheduled tribes, who had been subjected to

discrimination for more than thousands of years by the upper caste men of India.19

16
Tummala K. (1999), "Policy of Preference: Lessons from India, the United States and South Africa"
Public Administration Review, pp.495-508.
17
Sukhnandan Thakur v State of Bihar (1957) AIR 617 (Pat).
18
Although such reservations were declared unconstitutional in various decisions. Surendra Kumar v
State(1969) AIR 182 (Raj); Ramachandra v State of Madhya Pradesh (1961) AIR 247 (Madh Pra).
19
Constitution of India, 1950.
9

Preferences in India are of three basic types. Firstly, there are reservations. These

reservations assign or make possible access to esteemed positions or

resources.20 Secondly, there are programmes involving expenditure or the provision of

services for e.g. scholarships, grants, loans, land allotments, health care, and legal aid to

the beneficiary groups.21 Thirdly, there are special protections.22 Reservations together

with other welfare initiatives comprise the heart of affirmative action for these previously

disadvantaged groups.23 To indicate the scale of this policy the central government has

set aside twenty-seven percent of all government jobs and places in institutions of higher

education for the socially and educationally backward classes.24

Specifically, the Constitution of India provides for "reservations" in favour of two

disadvantaged groups; namely, the Scheduled Castes (SCs) and the Scheduled Tribes

(STs). These reservations exist in the following areas:

(a) in the state legislatures and the union legislature or parliament,

(b) in services under the states, and

(c) in educational institutions.

Apart from reservations in educational institutions, other programmes for the

upliftment of the backward classes include:

20
The most important instances of this type are reserved seats in legislatures, the reservation of posts in
government service, and the reservation of places in academic institutions.
21
Galanter M. (1984), “Competing Inequalities: Law and the Backward Classes In India”, University of
California Press, California.
22
These distributive schemes are accompanied by efforts to protect the backward classes from being
exploited and victimised.
23
This policy consists of various schemes allowing preferential treatment, a reservation of a percentage
of government jobs and of places in educational institutions being the most important.
24
The Constitution of India provided the legal opportunity for preferential treatment for their benefit
even before it was clear who the Socially and Educationally Backward Classes were. The makers of
the Indian Constitution left the work of defining, selecting, and listing the backward classes to special
commissions in the States and in the Centre.
10

(a) exemption from school fees,

(b) the provision of stipends or scholarships,

(c) the provision of facilities like book grants, and

(d) the maintenance of hostels, or assistance to hostels for SC students.

The central government further sponsors the following:

(a) college scholarships,

(b) the award of travel grants, and

(c) a seven-and-a-half percent reservation in favour of SCs in merit scholarships,

(d) assistance by way of special coaching for the SC students residing in hostels,

and pre-examination coaching facilities for SC students appearing in

competitive examinations, and

(e) in some states, reservations in services under the state and in educational

institutions in favour of OBCs. Reservations coupled with other welfare

programmes constitute the core of affirmative action for the upliftment of

these groups.25

In Parliament and in state legislatures political reservation is only for the benefit

of the SCs and the STs but not for the other OBCs. Political reservations are written into

the Indian Constitution and the provisions make known the uncertainty of the architects

of the Constitution as well as of policy makers in modern day India.26

25
Seenarine M. (1996), "Dalit Women: Victims or Beneficiaries of Affirmative Action Policies in India:
A Case Study", A paper presented at a brown bag lecture held at the Southern Asian Institute,
Columbia University on 10th April, 1996.
26
Galanter, op.cit.
11

The constitutional provisions relating to political reservations for the SCs and the

STs are compulsory. However, when the provisions were made obligatory in 1950, it was

determined that this would be valid only for ten years, so they would last for a single

decade only. However, since then the Indian Constitution has had to be amended every

ten years to continuously extend political reservations for the SCs and STs.

The second category of reservation, which is even more controversial than the

first, is identified as job reservations. 27 Job reservations pertain mainly to government

appointments at union and state level and also to organisations which are significantly

subsidised by the government. The provisions for job reservation apply not only to the

SCs and STs but also to the OBCs as well. It has happened that over the years there has

been an extension of job reservations for the benefit of the OBCs. This has now become

the most controversial issue among positive or affirmative action measures in India. The

question is whether or not the wholesale expansion of job reservations for the OBCs is in

harmony with the will of the Constitution or not. For job reservations, unlike political

reservations, the provisions are not obligatory; they are enabling provisions since the

Indian Constitution states that the state may take such measures as are necessary for the

special benefit of the OBCs.

Finally, the third category of reservation is reservations in education. As far as

admissions are concerned, it is possible that the different States of India may grant

concessions short of outright reservation to handicapped persons, for e.g., the awarding of

stipends and scholarships etc. As there is no legislation mandating the equal and fair

27
Sharma and Reddy, op.cit.
12

representation of disabled persons in the workforce. these concessions may prove to be

inadequate.28 These, again, are debatable, because reservations are present not only in

general arts and science courses but also in medical and engineering schools. The

reasoning behind reservations in India is that special opportunities should be given for

some, over and above the general provisions for equality of opportunity for all.

The key aim for providing reservations for SCs and STs in civil posts and the

services of the Government is to provide jobs to some persons belonging to these

communities and thereby increase their representation in the services; so as to facilitate

their social and economic advancement and make due place for them in society. Article

16(4) of the Constitution specifically empowers the State to make any provision for the

reservation of appointments or posts in favour of any backward class of citizens which is

not adequately represented in the services under the State. With the same end in view, the

Constitution envisaged in the Directive Principles of State Policy and elsewhere the

economic and educational development of the weaker sections, particularly the SCs and

STs.

1.1.3 Quotas

Countries looking to implement affirmative action policies will do well to look at

India's affirmative action policies, as India is the country with the most extensive quota

system in the world, and it is a country where the government enforces these preferences.

Quotas are enforced through this system of reservations, whereby at least forty percent of

seats are reserved for persons from the SCs, STs and OBCs. Mitchell describes the quota
28
Andrews (1992). Op.cit., pp.34-43.
13

system as a "numbers game enforced by a policing system supported by industrial courts"

and warns that the quota methods can prove to be counter-productive with companies

resorting to filling quotas without developing skills.29

Like the quota system in other constitutions 30 , seats and jobs are reserved for

persons from disadvantaged groups.31 This policy of special or preferential treatment of

the disadvantaged sections of society is called by the name of "protective


32
discrimination" or "protective measures", "compensatory discrimination

programmes" 33 or "reverse discrimination". 34 These phrases however, have the same

import and are not dissimilar to the concept of affirmative action as used in the South

African and the US context. The difference is that whereas in the South African context

affirmative action means more than just the achievement of numerical goals or targets,

the Indian policy of affirmative action subscribes mainly to the policy of the reservations

of jobs and the reservation of places for admissions at universities.

As can be seen, reservation policies in favour of the backward classes in India are

quite extensive and form the major part of the preferential policies designed for their

upliftment.

29
Mitchell G. (1993), "Much Affirmative Talk (and little action)", Productivity SA, pp.28-30.
30
This includes the USA.
31
Reservations are being made in the services as well as both at the point of initial entry and in
promotions. This benefit has been extended to embrace the whole chunk of weaker sections.
32
It is given the name "protective discrimination" because the purpose of special or preferential treatment
is not to award any special privileges but to give protection to those who, because of centuries of
oppression, are vulnerable to get exploited despite the removal of legal sanctions behind exploitation
which has been practised so far.
33
These programmes are authorised by constitutional provisions that permit departure from formal
equality for the purpose of favouring specified groups. See in this respect Galanter (n 27) 41and 379.
Also see the case ofDevadasen v Union of India (1964) AIR 179 (SC).
34
It is known by the name of "reverse discrimination" because it involves discrimination in favour of
those until recently had themselves been the victims of discrimination.
14

1.1.4 Beneficiaries of affirmative action in India

Like race, caste is something one is born into.35 However, because caste in India

is a "social construction", in contrast to the beliefs in the US that "race is an obvious

physical condition", it is believed that the "Indian jurisprudence has advanced well

beyond American law in constructing and justifying affirmative action in terms of

underlying social features".36

Attention has focussed on protective discrimination or preferential treatment for

three major classes; the SCs,37 the STs,38 and more recently the OBCs. Included among

the OBCs are a few tribal and nomadic groups, as well as converts to non-Hindu religions

from the scheduled caste and in some areas the Denotified Tribes.39 The inclusion of the

category of the OBCs widens the principle of affirmative action in education and

government employment from the untouchables to "socially and educationally backward

classes of citizens",40 of assisting "backward" groups, "backwardness" or the "depressed

classes" 41 , it should be understood as a comparison rather than a depreciatory or

condescending phrase.42

35
Volokh (1996), op.cit.
36
Cunningham C.D. (1997), "Race, Class Caste? Rethinking Affirmative Action", Michigan Law Review,
pp.1296-1310.
37
Indian Constitution 24 of Art 366.
38
Indian Constitution 25 of Art 366.
39
The Denotified Tribes, or Vimukta Jatis, are the former Criminal Tribes. They became ‘excriminal'
when the Criminal Tribes Act of 1924 was repealed in 1952.
40
Art 15(4) of the Indian Constitution. What is interesting is that in India both traditional low-caste status
and economic class are factors in determining whether a group is categorised as an OBCs, but these
factors on their own are not considered to be sufficient.
41
The term backward classes is commonly used in two senses: (a) as a generic term including the
Scheduled Castes and Scheduled Tribes as well as the other so-called Other Backward Classes; or (b)
as a designation of those backward groups not included in either of the first two categories. See art
15(4) of the Indian Constitution.
42
Cunningham (1997), Op.cit., p.119.
15

Another group that receives preferential treatment in India is women and children.

Under clause (3) of article 15 of the Indian Constitution, special provision for the benefit

of women and children may be made by the State and such special provision will not be

open to attack as contravening articles 14 or 15.43

The making of reservations as "compensatory discrimination" in India does not

look to eradicate the caste system; it simply aims to boost some oppressed castes,

whether at the bottom or the middle of the caste ranking. The Indian government's model

of "affirmative action" is different in a way from that in other Constitutions44 as these

other societies do not have any inflexible caste-based pecking order of jati (the endogamy

family) and varna (class based on purity level) as the Indians do, but only classes

fashioned by economic inequality. In such a culture, the economic progression of an

individual, family unit or group brings about a confirmed position in a privileged class.

However, in the Indian system, affluence alone has not improved the status of a

caste (jati) into a higher varna. It is submitted that the reservation of government

positions for OBCs should not be construed as a narrow exemption to the constitutional

guarantee of equality, but rather as a way of achieving true, substantive equality,

notwithstanding the concomitant problems. To combat the problems entailed in the

identification of beneficiaries, the identification of a group as an OBC cannot and should

not be based on economic criteria alone.

43
Savitri v KK Bose (1971) AIR 1974 (HP); Padmaraj Samendra v State (1979) AIR 266 (Pat).
44
Like the USA and South African Constitutions.
16

1.2.0 NEED FOR THE STUDY

This subject under research has considerable socio-economic importance. In the

society of today the majority people are of illiterate and socially, economically and

culturally backward. The aim of the Part-IV of the Constitution of India is to establish a

welfare state.

Article 38 envisages “The Constitution “which provides that the state shall, in

particular, strive to minimise inequalities in income and endeavour to eliminate

inequalities in status, facilities and opportunities, not only amongst individuals but also

amongst groups of people residing in different area or engaged in different vocations. The

new clause aims at equality in all spheres of life. It would enable the State to have a

national policy on wages and eliminate inequalities in various spheres of life”

Article 39 envisages:

a. “Equal right of men and women to adequate of livelihood.

b. Distribution of ownership and control of the material resources of the

community to the common good.

c. To ensure that the economic system should not result in concentration of

wealth and means of production to the common detriment.

d. Equal pay for equal work for both men and women.

e. To protect health and strength of workers and tender age of children and to

ensure that they are not forced by economic necessity to enter avocations

unsuited to their age or strength.


17

f. Those children are given opportunities and facilities to develop in a healthy

manner and in condition of freedom and dignity and that childhood and youth

are protected against exploitation and against moral and material

abandonment”.

1.3.0 AREA OF RESEARCH

The scholar confined the area of research to the following matters:

1. The horizons of concept of equality under the Constitution of India in the

context of Indian background.

2. The historical background of the Indian system of equality compared with the

American background.

3. The policy of reservation for the advancement of weaker sections of

community.

4. Feasibility, desirability and validity of reverse discrimination and affirmative

action programmes in India and USA.

The above mentioned matter has been analyzed with reference to USA and India.

1.4.0 SIGNIFICANCE OF THE TOPIC

The practice of affirmative action has recently been at the vanguard of intense

debate more than any other time. A growing number of programs including quotas,

preferential hiring, minority scholarships, diversity and reverse discrimination have all

been linked to affirmative action, which aims to break down the wall of segregation that

excluded racial minorities and women from the workplace and in education.
18

The analysis of reverse discrimination and affirmative action in this thesis will

first consider the changing face of affirmative action from all perspectives: race and

gender-based as it has been applied in private employment, public employment, and

higher education. Following a glimpse into the definition of affirmative action, the

analysis presents a history and general overview of affirmative action, including a

discussion of the various forms of affirmative action (e.g., quotas, goals, and

preferences); the courts interpretation of affirmative action; the arguments for and against

affirmative action; and recent developments pertaining to affirmative action.

The state should aim at the establishment of the egalitarian type of the society.

That could be possible only if the concepts of reverse discrimination and affirmative

action are adopted and applied. The Supreme Court in a number of cases pointed out that

affirmative action and for advancement of backward classes of society is essential for

establishment of welfare state. The creamy layer concept and also been introduced in

Indra Sawhney case the advanced section of backward classes of community are to

excluded from the special treatment conferred upon the backward classes of people. Only

when the creamy layer is excluded the concept of equality would have realistic

application. Otherwise the benefits available under such schemes would be cornered by

the more advanced sections in the community and the very purpose of the concept would

be negated. Socio-economic progress would be a reality only when the concept is taken

into account. With all its consequences as brought out by the courts from time to time.

The subject therefore is a great socio-economic importance and accordingly it has been

selected topic of the present research work.


19

1.5.0 OBJECTIVES OF THE STUDY

The main objectives of the study are as follows:

1. To make an in-depth study in regard to the concepts of “Reverse

Discrimination and Affirmative Action”. Obviously the term ‘Reverse

Discrimination’ means the discrimination against the weaker section of the

community which is hitherto prevailing in the society to be reversed. On the

other hand affirmative action means taking necessary action and introducing

schemes to achieve affirmative action which means upliftment of the weaker

section of the community. In other words special provisions like reservations

in educational institutions employment opportunities are to be made for

strengthening the interest of the weaker section of the community. In sense

affirmative action implies the reverse of the reverse discrimination. The

various aspects connected with concepts are sought to be examined by the

research scholar.

2. To examine the practical application and the effective implementation of the

scheme connected with these concepts. For the advancement of the weaker

section of the community a variety of interesting schemes were formulating

and introduced on the large scale by the various states on a competitive basis.

The court however is examining such policies on the touchstone of the

fundamental rights and other constitutional provisions. These various aspects

are sought to be examined on an empirical basis.

3. The research scholar intends to delve into the concept of ‘creamy layer’ as

profounded in Indra Sawhney case. These concepts appear to be alluding to


20

any practical application like a mirage in a desert. No particular criteria are

being has not arrived for satisfactory implementation of creamy layer concept

and the Supreme Court is highly critical for non exclusion of creamy layer

segment of the population while allowing reservations. These various points

and imbroglios connected with the concept need a thorough analysis and

investigation.

4. To examine the concept of compensatory discrimination and protective

discrimination in the context of the modern developments in the society.

5. In the Constitution of U.S.A the concept of reverse discrimination and

affirmative action has special significance. This is because the institution of

slavery has been existence for over long period of time in the U.S.A. In fact,

even the famous President of U.S.A. Abraham Lincoln has sacrificed his life

for the cause of abolition of slavery. Today, in USA Barrack Obama who is

non-white had been elected as the President of the country. Undoubtedly there

is a progress in the implementation of the concepts of affirmation action

programmes in the USA.

1.6.0 HYPOTHESES

For the present purpose of the study the following hypotheses were formulated:

(1) The discrimination in U.S.A. on the basis of race and in India on the basis of

caste is comparable and there are many similarities between the U.S.A. and

India in this regard.

(2) The Constitution of U.S.A. and India contain number of provision aimed

that removal of discrimination on grounds like race and caste. However,


21

after 225 years of working of U.S. Constitution and 63 years working of the

Indian Constitution inequalities and discrimination are still continuing in

both the countries.

(3) The Affirmative Action in the form of compensatory and protective

discrimination in India and in the form of separate but equal treatments,

resulting in segregation policies, equal protection law clause in the US

constitution and subsequent phenomena of reservations and reverse

discrimination have not yielded the desired results ultimately leading to

reverse discrimination in both the countries.

(4) The process of liberalization, privatization and globalization has adversely

affected the affirmative action program in both the countries.

(5) The existing strategies designed to tackle the issues of discrimination

including affirmative action and reverse discrimination need to be revised

and reviewed to make them more effective.

1.7.0 METHODOLOGY

Research not only generates useful insight and confidence but also acts as a

stimulant for academic growth. Sound conceptual understanding of various research

methods, research instruments, tools and techniques is an essential prerequisite for

conducting empirical research. For undergoing high quality research and writing good

research papers or M.Phi./Ph.D. thesis, one requires to collect, interpret and logically

document the information. The art of drawing coherent conclusions, supported by

appropriate research tools and reference citation is vital for quality research work.
22

As the topic of the study needs an empirical approach, the investigator was

developed his work by non-doctrinal, historical, comparative, constitutional and

analytical approach.

Material has been collected from both primary and secondary sources. Primary

sources:- Statements, books, monographs, Secondary sources:- Articles, journals,

empirical data collected.

1.8.0 REVIEW OF LITERATURE

There are several important and authoritative books on the subject. The various

important books together with articles published in journals and newspapers have been

carefully studied and the same were presented hereunder.

Jha G. M., Trehan S., Rao G., Vishwanath B., Sarin R. and Monga A. (2013)45

Stratification on the basis of caste, class and religion is a very significant aspect of life in

India and its impact on the people of the country has been deep and lasting. Equality and

liberty – elements which are very important for giving people a chance to lead a happy

and meaningful life, have constantly come under threat because of these institutions

which have divided the nation and afflicted large sections of the population for a very

long time. The Mandal Commission, headed by Bindheshwari Prasad Mandal (M.P.) was

established in India, in 1979, by the Janata Party government under Prime Minister

Morarji Desai with a mandate to identify the socially or educationally backward. It

45
Jha G. M., Trehan S., Rao G., Vishwanath B., Sarin R. and Monga A. (2013), “Mandal Commission:
Equality and Liberty”, International Research Journal of Social Sciences, Vol. 2(6), pp.35-38.
23

considered the question of seat reservations and quotas for people to redress caste

discrimination, by using eleven social, economic, and educational indicators to determine

backwardness. This essay is a critical examination of the Mandal commission report, its

intent, execution and aftermath with respect to the values of equality and liberty.

Hiroshi Fukurai (2013)46 examined possible applications of affirmative action in

jury selection to create racially heterogeneous juries. Since race-conscious affirmative

action must rely on the clear conceptualization of race and racial definitions, the article

first presents critical analysis of the conceptualization and formulation of race and racial

classification. Specifically, the first section of this article attempts to deconstruct racial

identity as defined by government-defined racial categories, suggesting that race is a

social construction and racial identity is subject to individual and societal manipulation.

This allows many individuals to pass as members of different racial groups. The article

then empirically examines public perceptions of the affirmative jury structures, focusing

on the use of mandatory racial quotas to engineer racially heterogeneous juries in

criminal trials, specifically the jury de medietate linguae, the Hennepin model, the social

science model, and a peremptory inclusive selection method. The article finally argues

that, given the strong endorsement for the Hennepin and social science models of

affirmative juries, both legislative and court-initiated actions may be needed to energize

the public debate concerning the importance of racially mixed juries, the size of

mandated racial quotas, and implications regarding applications of affirmative action in

jury proceedings.

46
Hiroshi Fukurai (2013), “Social De-Construction of Race and Affirmative Action in Jury Selection”,
Berkeley Journal of African-American Law & Policy, Vol.4, Issue 1 Article 2, pp.17-58.
24

Rankhumise, E., & Netswera, F.G. (2010) 47 conducted in this study provides

valuable information which would enable the Mpumalanga health department and public

hospital management to develop improved interventions associated with AA training

interventions. The population of the study consists of two groups of participants which

are AA appointees and AA mentors. The study mixed qualitative and quantitative

research methodological processes. Results of this study show that there are differences

in perceptions between Black respondents who believe that mentors should be held liable

for the failure of the mentees and White respondents who disagreed. The findings suggest

that employees are of the opinion that internal policy guidelines on the implementation of

AA are not communicated to all employees. Public hospital management should

articulate the purpose of AA interventions and its targets to both mentors and mentees

and continuously review the implementation thereof. The study contributes towards

explaining the importance of training interventions that are useful for the success of AA

appointees in their respective duties and also give account of barriers that are experienced

by these appointees.

Michael D. Barker (2010) 48 concluded that different effects of reservations

encourage both exogamy and endogamy along different dimensions, but the net impact of

reservation policy favors exogamy. Reservation policy is an extremely contentious topic

in Indian politics. Proponents claim that a policy of positive discrimination is the only

way to rectify the past injustices against India’s poor. Opponents claim that reservation

47
Rankhumise, E., & Netswera, F.G. (2010). “Identifying the barriers to affirmative action training:
Perceptions of affirmative action appointees in Mpumalanga public hospitals”. SA Journal of Human
Resource Management / SA Tydskrif vir Menslikehulpbronbestuur, 8(1), Art. #222, 6 pages.
48
Michael D. Barker (2010), “The Effect Of Reservations On Caste Persistence In India”, A thesis
submitted to the Faculty of the Georgetown Public Policy Institute of Georgetown University in partial
fulfillment of the requirements for the degree of Master of Public Policy, Washington DC.
25

policy creates perverse incentives that strengthen traditional caste boundaries and

encourage backwardness. Despite vocal advocates on both sides of the issue, there is little

empirical data on the actual effects of reservation policy. The researcher provides

theoretical and quantitative evidence on the unintended consequences of reservation

policy in the thesis. He developed and estimated a model of marriage choice in the

presence of reservations to determine the effects of reservations on the persistence of

caste identity.

Tabitha Wangare (2009)49 examined the public perception of affirmative action

on women recruitment and career development in organizations within Eldoret

municipality. The study objectives were to establish: the public perceptions about

affirmative action, the contribution of affirmative action on women career development,

the extent to which affirmative action has been incorporated in recruitment of women and

the relationship between affirmative action and organization performance. The study was

guided by Rawls theory of Justice (1971) which states that all social primary goods -

liberty and opportunity, income, jobs and wealth, and the bases of self-respect be

distributed equally and there should be no differences and/or discrimination except those

that can be justified on grounds of competence. The research employed an Expost Facto

Survey research design, which was deemed appropriate because it handles situations or

events that have already occurred, examines variables with the same characteristics and

does not manipulate the variables. Purposive sampling technique was used in selecting

the organizations for study. The respondents were picked using simple random sampling.

49
Tabitha Wangare (2009), “Affirmative Action: A Kenyan Case”, The perception of affirmative action
in Eldoret Municipality, Master's Thesis, 99 p,
26

Eight organizations were selected. A sample size of 255 respondents was selected but 210

questionnaires were returned and 8 interviews done. Questionnaires and interviews were

used in data collection. Data was analyzed quantitatively and qualitatively facilitated by

the Statistical Package for Social Science (SPSS). Data was presented in frequency tables,

graphs and pie charts. An inferential statistic technique, the chi-square test and Mann

Whitney U-test were used to test the hypothesis at 0.05 level of significance. The

hypotheses that an affirmative action policy does not affect significantly recruitment

policies in organization and affirmative action does not enhance women career

development were tested. The results from the study indicate that there is perverse

inequality in employment since men are more represented than women in almost all

employment categories. Affirmative action is perceived as the most ambitious attempt to

put right the long history of gender discrimination. It was noted that women tend to lag

behind their male counterparts in career development. The respondents proposed

recruitment by performance. Affirmative action was indicated as one of the solutions to

women career development. Among the recommendations given were, women need to

put more emphasis on career development, recruitment should be based on actual work

performance and not on merit alone and finally, government should provide more

educative programs about affirmative action to ensure the policy is well understood by

the public. The study is significant to employees, employers, the government and the

public at large.
27

Deane T (2009)50 stated that the current position with regard to the caste system

and the reservation of jobs in the Republic of India in the context of affirmative action

and the achievement of equality in the workplace. Its purpose is to highlight the extreme

division of opinion about what is socially acceptable, namely, caste. Further, it provides

the reader with an understanding of the need for affirmative action in the first place in

India, and thereby creates a powerful tool for understanding discrimination and the need

for affirmative action measures. Another goal is to provide useful guidelines and

information to all persons involved in implementing affirmative action programmes. It

serves to show that if affirmative action measures and/or discriminatory measures are not

properly thought out then affirmative action becomes burdensome and even more

discriminatory, rather than being a means of achieving equality and redressing past

wrongs.

Gabriel Patrick Wasson (2004)51 described the filed in response to white students

Gratz v. Bollinger [02-516] and Gruttter v. Bollinger [02-241], being denied admission to

the University of Michigan's undergraduate and law school program, provided the United

States Supreme Court with its best opportunity in recent years to focus on the

constitutionality of adopting such admissions policies. Affirmative action policies are

inconsistent with the principle of merit (the idea of attaining what you earn) and they

penalize an innocent person for the alleged crimes of his or her ancestors, effectively

known as reverse discrimination. Furthermore, affirmative action unfairly rewards

50
Deane T (2009), “A commentary on the positive discrimination policy of India”, Potchefstroomse
Elektroniese Regsblad (PER), vol.12, No.1.,
51
Gabriel Patrick Wasson (2004), “Affirmative Action: Equality or Reverse Discrimination?”, A Senior
Thesis submitted in partial fulfillment of the requirements for graduation in the Honors Program,
Liberty University.
28

minorities on the erroneous notion that a minority status automatically equates

"disadvantage." In conclusion, an additional perspective for the case against

implementing affirmative action policy within the workplace and in higher education will

be presented.

Dansby, Ike (1996) 52 determined the impact of affirmative action programs in

response to charges that they are policies of reverse discrimination. Reviewing

affirmative action programs submitted by Michigan State departments, researchers

determined no reverse discrimination was apparent based on low numbers of reverse

discrimination complaints filed by whites.

1.8.1 Right Equality and Prohibition of Discrimination

Pandit, Eshan (2012)53 analyzed the Article-14 of Indian Constitution. Right to

equality must not be identified with the doctrine of classification. What Article 14 strikes

at is arbitrariness because any action that is arbitrary, must necessarily involve negation

of equality. The doctrine of classification which is evolved by the courts is not para-

phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial

formula for determining whether the legislative or executive action in question is

arbitrary and therefore constituting denial of equality. If the classification is not

reasonable and does not satisfy the two conditions, namely, (1) that the classification is

founded on an intelligible differentia and (2) that differentia has a rational relation to the

52
Dansby, Ike (1996), “Affirmative Action, or Reverse Discrimination?”, Journal of Intergroup Relations,
v24 n3 p37-48.
53
Pandit, Eshan (2012), “Article-14 of Indian Constitution: An Analysis”. Available at SSRN:
http://ssrn.com/abstract=1991196 or http://dx.doi.org/10.2139/ssrn.1991196.
29

object sought to be achieved by the impugned legislative or executive action, the

impugned legislative or executive action, would plainly be arbitrary and the guarantee of

equality under Article 14 would be breached. Wherever, therefore, there is arbitrariness

in State action whether it be the legislature or of the executive or of an "authority" under

Article 12, Article 14 immediately springs into action and strikes down such State action.

In fact, the concept of reasonableness and non-arbitrariness pervades the entire

constitutional scheme and is a golden thread which runs through the whole of the fabric

of the Constitution.

Germov, John (1995) 54 discussed the inadequacies of the legal system by

examining the implications of the Dietrich case. The High Court decision in the Dietrich

case highlighted the perilous state of legal aid in Australia wizen it instructed judges to

refuse to hear criminal trials when a person has no legal counsel due to inability to pay

and has been denied legal aid. The decision of the High Court places pressure on the

Federal Government to resolve the situation by legislating a guaranteed right of legal

representation. It is argued that recent government reports only provide a piecemeal

approach to improving access to justice and what is needed is wider systemic change in

the form of universal legal insurance. Only in this way can citizenship rights be

reasserted to ensure social justice.

54
Germov, John (1995), “Equality before the law: The limits of legal aid and the cost of social justice”,
Australian Journal of Social Issues, Vol. 30, Issue 2, p.162.
30

96th Session International Labour Conference (2007)55 examined emerging issues

in patterns of workplace discrimination and inequalities and recent policy responses and

outlines the ILO’s experience and achievements to date and the challenges it faces. It

points to the need for better enforcement of legislation against discrimination, as well as

non-regulatory initiatives by governments and enterprises, and equipping the social

partners to be more effective in making equality a reality at the workplace. The Report

puts forward other proposals for future action, including making equality a mainstream

objective of the ILO’s Decent Work Country Programmes. The Global Report describes

major advances in the struggle against discrimination, including progress in ratification of

related ILO Conventions, as well as improvements on the national legal and institutional

fronts, and action plans and programmes to combat inequalities stemming from

discrimination. It also identifies challenges such as weak law enforcement, lack of

resources among bodies set up to fight discrimination, plans that are too narrow in scope

and programmes too short in duration, and the informal economy as one area where

equality-enhancing policies face particular difficulties in making an impact.

Jasmine Rao (2010)56 reviewed the linkage between poverty and the caste system

in India, Nepal and Sri Lanka. It also discusses the situation of the so-called Dalits

(untouchables), which are typically considered to fall outside of the caste system. In

addition to secondary evidence based on recent literature analyzing the relevance and

impact of the caste system on poverty, the article is also based on an interview with a

55
96th Session International Labour Conference (2007), “Equality at work: Tackling the challenges”,
International Labour Office, Geneva
56
Jasmine Rao (2010), “The Caste System: Effects on Poverty in India, Nepal and Sri Lanka”, Global
Majority E-Journal, Vol. 1, No. 2, pp. 97-106.
31

young male Indian, who experienced the impact of the caste system as well as the impact

of the recently adopted reservation system for India’s Dalits.

Zahra Siddique (2008)57 conducted a study to determine the extent of caste-based

discrimination in the Indian private sector. On average low-caste applicants need to send

20 percent more resumes than high-caste applicants to get the same callback. Differences

in callback which favour high-caste applicants are particularly large when hiring is done

by male recruiters or by Hindu recruiters. This finding suggests that the differences in

callback between high and low-caste applicants are not entirely due to statistical

discrimination. High-caste applicants are also differentially favoured by firms with a

smaller scale of operations, while low-caste applicants are favoured by firms with a larger

scale of operations. This finding is consistent with taste-based theories of discrimination

and with commitments made by large firms to hire actively from among low caste groups.

Ankit Kumar, Tushar Patnaik, Vivek Kr Verma (2012)58 introduced a simple and

efficient technique of script identification for Kannada, English and Hindi text words of a

printed document. India is a multilingual multi-script country. In every state of India

there are two languages one is state local language and the other is English. For example

in Andhra Pradesh, a state in India, the document may contain text words in English and

Telugu script. For Optical Character Recognition (OCR) of such a bilingual document, it

is necessary to identify the script before feeding the text words to the OCRs of individual

57
Zahra Siddique (2008), “Caste Based Discrimination: Evidence and Policy”, zur Zukunft der
Arbeit (IZA) Institute for the Study of Labor, Discussion Paper No. 3737, IZA, P.O. Box 7240,
53072 Bonn, Germany.
58
Ankit Kumar, Tushar Patnaik, Vivek Kr Verma (2012), „Discrimination of English to other Indian
languages (Kannada and Hindi) for OCR system “,International Journal of Computer Science,
Engineering and Applications (IJCSEA) Vol.2, No.2.
32

scripts. The proposed approach is based on the horizontal and vertical projection profile

for the discrimination of the three scripts. The feature extraction is done based on the

horizontal projection profile of each text words. We analysed 700 different words of

Kannada, English and Hindi in order to extract the discrimination features and for the

development of knowledge base. We use the horizontal projection profile of each text

word and based on the horizontal projection profile we extract the appropriate features.

The proposed system is tested on 100 different document images containing more than

1000 text words of each script and a classification rate of 98.25%, 99.25% and 98.87% is

achieved for Kannada, English and Hindi respectively.

Lakshmi Kanth, B., Venkatesh Keri, and Kishore S. Prahallad (2011)59 carried out

on a database built with words, mostly nouns, common to Hindi, Tamil and Telugu

languages. Speech is the most important and common means of communication. Human

beings identify a language by looking at the acoustics and the letter to sound rules (LTS)

that govern the language. But pronunciation is governed by the person’s exposure to

his/her native language. This is a major issue while considering words, especially nouns

in Indian languages. Durational analysis of phonemes has been carried out on the

collected database. Our results show that phoneme durations play a significant role in

differentiating Hindi, Telugu and Tamil languages with regard to stop sounds, vowels and

nasals.

1.8.2 Equal Protection of Laws and Racial Discrimination in USA – Constitutional


Perspective

59
Lakshmi Kanth, B., Venkatesh Keri, and Kishore S. Prahallad (2011), “Durational Characteristics of
Indian Phonemes for Language Discrimination”, Information Systems for Indian Languages
Communications in Computer and Information Science Vol. 139, pp.130-135.
33

Jorgensen, K. (2012)60 examined the Supreme Court of the United States to find

out whether women’s jurisprudence differs from that of their male colleagues. For this

paper, the author limited the examination to cases involving equal protection under the

law. The theory I employ is that of Carol Gilligan, who argues that across many realms,

women have a uniquely different voice than men (1982). Through a quantitative analysis

of 49 cases dealing with issues of equal protection under the law, she showed that

Gilligan’s theory helps us understand how cases are decided in the United States

Supreme Court. Additionally, the researcher showed how the “Different Voice” model

improves upon existing models of judicial decision making by Lee Epstein, Jeffrey Segal,

and Harold Spaeth. This paper expands current gender and politics literature, which had

previously used Gilligan’s insights to examine U.S. state legislatures, by analyzing

decision making in the Supreme Court. This paper, thus, illustrates that women, due to

their unique life experiences, have a different understanding of the law in regards to

equality and equal protection under the law.

1.8.3 Compensatory Discrimination in India and USA


61
Karthik Nagarajan (2009) conducted a research on “Compensatory

Discrimination in India Sixty Years After Independence: A Vehicle of Progress or a Tool

of Partisan Politics?”. It concluded that The Indian state deserves credit for embarking

on a daunting project to reduce caste-based inequalities. This Note recognizes that caste-

60
Jorgensen, K. (2012). “Equal protection under the law: Do female justices have a difference voice?”,
Journal of Purdue Undergraduate Research, 2, pp.28–35.
61
Karthik Nagarajan (2009), “Compensatory Discrimination in India Sixty Years After Independence: A
Vehicle of Progress or a Tool of Partisan Politics?”, Washington and Lee Journal of Civil Rights and
Social Justice, Vol.15, Iss:2, Article 6, pp.483.517.
34

based inequalities will not disappear overnight and that the government must take special

steps to alleviate the situation of the SCs, STs, and the genuinely needy among the

"backward classes." However, quotas are not the only way in which caste-based

inequalities can be reduced. Although a system of reservations has played an important

role in uplifting the Dalits, it has been ineffective in helping the genuinely needy among

the OBCs. Furthermore, the reservation system for OBCs has played a role in the

continued suppression of the Dalits. Thus, new measures must be contemplated to assist

the truly needy sections of the OBC community. Finally, as India's economy liberalizes

further, policy-makers need to find pragmatic solutions that will ensure that the Dalits

and other historically oppressed castes act as participants in India's changing economic

landscape.

Sonalde Desai and Veena Kulkarni (2008)62 examined the changes in educational

attainment between various social groups for a period of nearly 20 years to see whether

educational inequalities have declined over time. Indian society suffers from substantial

inequalities in education, employment, and income based on caste and ethnicity.

Compensatory or positive discrimination policies reserve 15% of the seats in institutions

of higher education and state and central government jobs for people of the lowest caste,

the Scheduled Caste; 7.5% of the seats are reserved for the Scheduled Tribe. These

programs have been strengthened by improved enforcement and increased funding in the

1990s. This positive discrimination has also generated popular backlash and on-the-

ground sabotage of the programs. The authors used the data from a large national sample

62
Sonalde Desai And Veena Kulkarni (2008), “Changing Educational Inequalities in India in the Context
of Affirmative Action”, Demography, vol.45 (2), pp.245-270.
35

survey of over 100,000 households for each of the four survey years—1983, 1987–1988,

1993–1994, and 1999–2000—and focus on the educational attainment of children and

young adults aged 6–29. Our results show a declining gap between dalits, adivasis, and

others in the odds of completing primary school. Such improvement is not seen for

Muslims, a minority group that does not benefit from affirmative action. It was found

from the study that little improvement in inequality at the college level. Further, we do

not find evidence that upper-income groups, the so-called creamy layer of dalits and

adivasis, disproportionately benefit from the affirmative action programs at the expense

of their lower-income counterparts.

Judith Heyer and Niraja Gopal Jayal (2009)63 discussed the programme of positive

discrimination (PD) in India, which is confined largely to the state and does not extend to

the private sector, as do affirmative action programmes in the US and elsewhere. PD

policies and programmes emerged in India in the early 20th century, and were given a

constitutional basis in 1950. The paper discusses the principles underlying these

programmes and policies, and some of the debates around them. It then looks at the

achievements, both political and economic, and highlights their limited nature. Given these

outcomes, however limited, programmes of positive discrimination cannot be considered

redundant, even six decades after their inception, as many had hoped they would be. The

paper ends by reviewing some of the challenges the programme faces today.

63
Judith Heyer and Niraja Gopal Jayal (2009), “The Challenge of Positive Discrimination in India”,
CRISE WORKING PAPER No. 55, Centre for Research on Inequality, Human Security and Ethnicity,
Queen Elizebeth House, University of Oxford, Mansfield Road, OX1 3TB, UK.
36

1.8.4 Position before the Mandal Judgement and Impact of Mandal Judgement
and Post-Mandal Constitutional Development on Reservation in India

Michael D. Barker (2010)64 conducted a research study entitled “The Effect of

Reservations on Caste Persistence in India”, Reservation policy is an extremely

contentious topic in Indian politics. Proponents claim that a policy of positive

discrimination is the only way to rectify the past injustices against India’s poor.

Opponents claim that reservation policy creates perverse incentives that strengthen

traditional caste boundaries and encourage backwardness. Despite vocal advocates on

both sides of the issue, there is little empirical data on the actual effects of reservation

policy. This thesis provides theoretical and quantitative evidence on the unintended

consequences of reservation policy. I develop and estimate a model of marriage choice in

the presence of reservations to determine the effects of reservations on the persistence of

caste identity. I conclude that different effects of reservations encourage both exogamy

and endogamy along different dimensions, but the net impact of reservation policy

favours exogamy.

1.8.5 Judicial Response to Affirmative Action Programmes in India & USA

Pandit, Sameer (2007) 65 applied the Rawlsian principles of justice, which lay

down a theory of fair equality of opportunity, to examine the Indian scheme of

affirmative action through reservation in government jobs. Both, in principle, seek to

64
Michael D. Barker (2010), “The Effect of Reservations on Caste Persistence in India”, A thesis
submitted to the Faculty of the Georgetown Public Policy Institute of Georgetown University in partial
fulfillment of the requirements for the degree of Master of Public Policy, Washington, DC.
65
Pandit, Sameer (2007),. "Affirmative Action in India: An Analysis through Rawlsian Theories and
Thoughts for the Future", Paper presented at the annual meeting of The Law and Society Association,
TBA, Berlin, Germany held on Jul 25, 2007.
37

mitigate arbitrariness of birth and provide individuals with an equal start in life. Although

reservations seem justified from a theoretical angle, the historical politicisation of caste in

India has led to the distortion of the policy from being one that seeks to promote equality

to a policy that preserves social inequalities and hierarchies. Consequently, reservations,

originally conceptualised as a time-bound 10 year scheme beginning 1950, continues into

the 21st century. A second impediment to the successful implementation of the program

has been the creamy layer phenomenon - forward members of backward communities

who monopolise reserved jobs. This prevents the truly deserving from accessing the

affirmative action and only ends up hampering administrative efficiency. While the

judiciary has tried to ensure that politically motivated reservation schemes do not end up

harming fundamental rights of ordinary citizens (the well-publicised October 2006

decision of the Supreme Court, being of particular interest), the Parliament has amended

the Constitution to expand the scope of the reservation policy to promotions in jobs. Law-

makers have also suggested that all reservation related legislations must be beyond

judicial review. The author recommends replacing the purely caste based criterion with

one that also takes into account economic backwardness, and expanding the scope of

affirmative action beyond reservation for effective implementation of fair equality.

66
Deo, Meera (2006) compared the origins, evolution, and outcomes of

affirmative action policies in the U.S. with those in India, looking specifically at

rationales for affirmative action. Applying Tummalas (1999) four key justifications of

Compensatory Justice, Distributive Justice, Social Utility, and Responsiveness to both

66
Deo, Meera (2006), "Affirmative Action Rationales & Outcomes: A Comparative Analysis of the
United States & India", Paper presented at the annual meeting of the American Sociological
Association, Montreal Convention Center, Montreal, Quebec, Canada, held on Aug 10, 2006.
38

American and Indian affirmative action programs, the author asserted that an overall

difference in justifications has led to divergent outcomes in these countries. Specifically,

he found that India’s dependence on equality principles as the foundation for affirmative

action has led to increasing social equality through these programs there, while equality

has not been achieved and should not be expected in the U.S. where the primary

justification for affirmative action rests on diversity.

1.10.0 CHAPTERISATION

Chapter I – Introduction: In this chapter the research scholar discussed on

framing of the constitution, Objectives of study, Socio-Economic importance of the study,

Area of Research, Hypothesis have been brought together with the Research

Methodology.

Chapter II – Right to equality and prohibition of discrimination – Position in

India.

Chapter III – Equal protection of laws and racial discrimination in U.S.A. –

Constitutional perspective.

Chapter IV – Compensatory discrimination in India and USA

Chapter V – Affirmative Action Programme in U.S.A. – Experience of 225 years.

Chapter VI – Position before the Mandal Judgment and Impact of Mandal

Judgment and Post-Mandal Constitutional Developments on reservations in India.

Chapter VII – A Comparative analysis of Affirmative Action in India and U.S.A.

– Theory and practice


39

Chapter VIII – Judicial Response to Affirmative action programmes in U.S.A.

and India.

Chapter IX – Conclusion.

S-ar putea să vă placă și