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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
damage’?) of addressing a grave issue. It is not intended to simply fill quotas without
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
minorities (mainly people of African and Hispanic origin) and women were discriminated
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
i.e., a discrimination against a majority race in favour of minority races and women.
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
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
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,
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
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
Accordingly, there are five different levels or categories of this system. They are
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
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.
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
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
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
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
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
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
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
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
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,
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
which comprises various preferential schemes. The policy initiative most commonly
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
the term "reservations" indicates a set allocation of certain public service positions for
institutions as well.18
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
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
disadvantaged groups; namely, the Scheduled Castes (SCs) and the Scheduled Tribes
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
(d) assistance by way of special coaching for the SC students residing in hostels,
(e) in some states, reservations in services under the state and in educational
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
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
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
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
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
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
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
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
and warns that the quota methods can prove to be counter-productive with companies
Like the quota system in other constitutions 30 , seats and jobs are reserved for
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
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
Like race, caste is something one is born into.35 However, because caste in India
physical condition", it is believed that the "Indian jurisprudence has advanced well
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
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
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
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
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
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
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
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
Article 39 envisages:
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
manner and in condition of freedom and dignity and that childhood and youth
abandonment”.
2. The historical background of the Indian system of equality compared with the
American background.
community.
The above mentioned matter has been analyzed with reference to USA and India.
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
higher education. Following a glimpse into the definition of affirmative action, the
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
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
other hand affirmative action means taking necessary action and introducing
research scholar.
scheme connected with these concepts. For the advancement of the weaker
and introduced on the large scale by the various states on a competitive basis.
3. The research scholar intends to delve into the concept of ‘creamy layer’ as
being has not arrived for satisfactory implementation of creamy layer concept
and the Supreme Court is highly critical for non exclusion of creamy layer
and imbroglios connected with the concept need a thorough analysis and
investigation.
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
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
(2) The Constitution of U.S.A. and India contain number of provision aimed
after 225 years of working of U.S. Constitution and 63 years working of the
1.7.0 METHODOLOGY
Research not only generates useful insight and confidence but also acts as a
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
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
analytical approach.
Material has been collected from both primary and secondary sources. Primary
There are several important and authoritative books on the subject. The various
important books together with articles published in journals and newspapers have been
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
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
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.
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
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
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
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
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
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.
encourage both exogamy and endogamy along different dimensions, but the net impact of
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
policy in the thesis. He developed and estimated a model of marriage choice in the
caste identity.
municipality. The study objectives were to establish: the public perceptions about
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
put right the long history of gender discrimination. It was noted that women tend to lag
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
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
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
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
implementing affirmative action policy within the workplace and in higher education will
be presented.
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
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
impugned legislative or executive action, would plainly be arbitrary and the guarantee of
Article 12, Article 14 immediately springs into action and strikes down such State action.
constitutional scheme and is a golden thread which runs through the whole of the fabric
of the Constitution.
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
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
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
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
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
related ILO Conventions, as well as improvements on the national legal and institutional
fronts, and action plans and programmes to combat inequalities stemming from
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
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
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
smaller scale of operations, while low-caste applicants are favoured by firms with a larger
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
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
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.
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
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
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
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
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,
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
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
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
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
discrimination is the only way to rectify the past injustices against India’s poor.
Opponents claim that reservation policy creates perverse incentives that strengthen
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
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.
Pandit, Sameer (2007) 65 applied the Rawlsian principles of justice, which lay
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
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
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
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
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
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
1.10.0 CHAPTERISATION
Area of Research, Hypothesis have been brought together with the Research
Methodology.
India.
Constitutional perspective.
and India.
Chapter IX – Conclusion.