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INTRODUCTION Affirmative action has at its heart the concepts of equality, compensatory justice and distributive justice.

Countries in which there exists an overwhelming disparity between different castes, classes and races, there usually exists some form of affirmative action in place. (delete) AFFIRMATIVE ACTION IN INDIA Caste (Casteism) has given rise to a massive programme of affirmative action in India. It (Casteism) has existed in the society over a very long period of time, particularly among the Hindus. But, the concept of caste was not confined to the Hindus only. Divisions of a very similar kind have also existed among the Muslims, Christians and other religious communities. They also exist in some form or the other among the tribal communities in India.1 Basically, the concept of caste was (evolved out of) the division of the population into large number of groups which were ranked in a kind of hierarchy (add: based upon the occupation a group pursued). Among the Hindus, there is not just the division of the society into groups or just the practice of caste, but also a theory which seeks to describe, explain and justify these divisions. The scheme of such division has been described (existed) among the Hindus for at least 2000 years (as mentioned) in medieval religious texts. There are four major divisions Brahman, Kshatriya, Vaishya and Shudra, ranked in the given order. The Brahmans are the teachers, scholars and priests. Kshatriyas are the kings and warriors, Vaishyas the merchants and traders and Shudras the service providers and labourers. Each of these majors (major) divisions is further divided into numerous sub-divisions which also follow a hierarchy. In the Indian society, it was a hierarchal social order. Inequalities not only existed, but they were also considered right, proper and desirable. The legitimacy of this form of ranking was taken for granted by and large. Even though it was questioned from time to time, but over a long period, the legitimacy of this ranking was taken for granted in the classical, legal and religious literature of the time.2 The basic principles of this order are
1

Andre Beteille, CASTE, INEQUALITY AND AFFIRMATIVE ACTION, International Institute for Labour Studies, Geneva, 2002, p.2 2 Ibid, p.40

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found in the Manusmriti or Manudharmashastra. The logic of caste is explained and it gives the blueprint of a quintessentially hierarchal society. HISTORY OF AFFIRMATIVE ACTION IN INDIA Pre-independence initiatives to eliminate untouchability date back to the early 19th Century when the Christian Missionaries took lead in adopting the cause of the Depressed Classes seeking to provide welfare for them. By the 1850s, following the example of Christian missionaries, Hindu reformers emerged among which Jyotiba Phule was a prominent figure.3 He established the Satyashodhak Samaj in 1873. It was started as a group whose main aim was to liberate the lower castes from exploitation and oppression. Then in1882, the Hunter Commission under Sir William Hunter was appointed. The commission was to look into uplifting the education system in India. One of the recommendations of the commission was to provide for education of the boys from the lower castes in schools maintained on public funds for it is in evidence that a few lowcaste boys of ability have already advanced beyond the elementary stage and are demanding an entrance into secondary schools. Moreover, the low caste community, in some Provinces at least, are becoming alive to the advantages of education.4 The commission further recommended that all such primary schools maintained at the cost of the school boards be understood as open to all castes and classes of the community and special aid to be assigned on account of low-caste pupils.5 The same was applied for government colleges as well. The report of the commission reads:6 We therefore recommend that no boy be refused admission to a Government college or school merely on the grounds of caste. It should be now re-affirmed as a principle, and be applied with due caution to every institution, not reserved for special races, which is wholly maintained at the cost of public funds, whether provincial, municipal or local.

History of Reservation Policy in India, <www.ambedkar.org/News/reservationinindia.pdf>, accessed 10 October, 2010 at 1803 hrs. 4 Sir William Hunter, REPORT OF THE INDIAN EDUCATION COMMISSION, printed by the Superintendent of Government Printing, Calcutta, 1883, p.129 5 Ibid, p.149 6 Ibid, p.516

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The next major step (initiative) towards affirmative action came (was taken) during the World War II. The Government of India Act of 1919 was an important British legislation passed during turbulent times and it had a huge impact on the development of Indian governmental institutions. One of the most important provisions of the act (Act) was for the appointment of a statutory commission after ten years.7 Consequently, a seven member commission headed by John Simon, MP, was appointed in 1927. It was to inquire into the working of the system of the government, growth of education, development of representative institutions, matters connected with such issues and any other matter affecting British India and the provinces which might be referred to the Commission.8 The Simon Commission toured every province of India. Dr. B.R. Ambedkar, then a member of the legislative council of Bombay, submitted a report to the Commission requesting it to recommend for a separate representation in the legislative council for the depressed classes.9 The Simon Commission submitted its final report which contained recommendations of (for) reform. It identified the need to safeguard the interests of minorities and disadvantaged sections of the Indian society. Following submission, various options emerged pursuing a system of nomination, creating separate electorates, and reserving seats in government with a general electorate. There was strong support for separate electorates among the concerned communities and their representatives proposed combining separate electorates and reserved seats.10 But (Though) the Commission rejected separate electorates for the depressed classes but (yet it) retained the concept of reserving seats in general electorates:11 The commission recommends that in all the eight provinces, there should be some reservation of seats for the Depressed Classes on a scale which will secure a substantial increase in the number of Members of Legislative Councils drawn from the Depressed Classes.

Prof. C.L. Anand, CONSTITUTIONAL LAW AND HISTORY OF GOVERNMENT OF INDIA, University Book Agency Allahabad, 7 th Edition 1992, p.266. 8 Ibid 7, p.267 9 Kusum Sharma, AMBEDKAR AND THE IND IAN CONSTITUTION, Ashish Publishing House New Delhi, Third Edition 1992, p.225 10 S.R. Bakshi, SIMON COMMISSION AND INDIAN NATIONALISM, Munshiram Manoharlal Publishers, 4th Edition 1976, p.65. 11 Ibid 7, p.268

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The electorate was to be general, but seats, which were reserved for these depressed classes, were to be filled by election. However, these measures were supposed to be tentative with the view that improvement in conditions of the concerned groups would eventually lead to these reservations being unnecessary.12 Following the submission of the report of the Simon Commission, a Round Table Conference was convened in London in 1930 to review the Commissions proposals. But no definitive decision could be reached and the general reflection of the entire meeting was inconclusive.13 A Second Round Table Conference was held in 1931 and Dr. B.R. Ambedkar, representing the depressed class, appealed for separate electorates. But this was opposed by Gandhi and the Congress arguing that such classes were inseparable from Hinduism and that the provision for separate electorates would only lead to further division in the Hindu society.14 The Second Round Table Conference was thus inconclusive and this lead to the Communal Award of 1932 by Ramsay MacDonald, the then Prime Minister. The Communal Award of 1932 by Ramsay MacDonald established separate electorates and reserved seats in the legislatures for different communities of the Indian society. The minorities and depressed classes got a total of 78 seats (61 for the Hindus) in all the 9 provinces out of a total of 1488 seats. Hindus got 776 seats, including the reserved seats, and the Muslims got 489 seats. The rest of the seats were reserved for Englishmen. It was also declared that the special constituencies for the depressed classes would come to an end after 20 years.15 The provisions under the Award led to widespread disapproval with Gandhi heavily criticising it 16 and Ambedkar felt that too few seats were reserved for the depressed classes.17 The disapproval among the political leaders and representatives of various communities ultimately led to the retraction of the award and the British Government and Indian leaders reached upon a new agreement, known as the Poona Pact of 1932.

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Ibid R.C. Pradhan, RAJ TO SWARAJ, Macmillan India Ltd, First Edition 2008, p. 186. 14 Ibid 13, p.189. 15 Ibid, p. 194,195. 16 CITE SOME BOOK ON GANDHI 17 Prof. G. Manoher Rao (ed.), DR. AMBEDKAR AND THE INDIAN CONSTITUTION , Asia Law House Hyderabad, First Edition Reprint 2009, p.150

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The Pact provided for reservation for the depressed classes out of the general electorate. They were given a total of 148 seats in the provincial legislatures, more than the double that were given to them under the Communal Award. In the central legislative assemblies, 18% of the seats allotted to the general electorate were reserved for them. Also, an appropriate amount of money out of the educational fund of every province was earmarked for providing education facilities to the members of the Depressed Classes. This current system was to remain in place for the (delete) 10 years following the signing of the Poona Pact.18 The provisions decided under the Poona Pact were implemented under the Government of India Act, 1935. In 1946, the Constituent Assembly was set up to draft the Constitution of India and an Advisory Committee on Minorities was set up and Dr. B.R. Ambedkar was made the Chairman of the Drafting Committee. Provisions were made in the Constitution for reservation for the backward (depressed) classes termed as Scheduled Castes and Scheduled Tribes in educational institutions and legislative bodies. The Constitution was brought into force in 1950.

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Text of Poona Pact, <http://www.ambedkar.org/impdocs/poonapact.htm>, accessed on 18th October, 2010.

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CHAPTER 3: RATIONALE OF AFFIRMATIVE ACTION IN INDIA


The Indian effort to secure equality by means of preferential treatment or compensatory discrimination is unique in scope and extent, observes Marc Galanter.1 He further goes on to quote Lelah Dushkin nowhere else is so large an underprivileged minority granted so much special treatment...2 The need for reservation (reservations) for minorities was outlined (articulated) by the Chair of the Advisory Committee on Minorities at the time of the drafting of the Indian Constitution3: .....minorities should stop feeling oppressed by the mere fact that they are minorities and that, on the contrary, they should feel that they have as honourable a part to play in the national life as any other section of the community. In particular, we think that it is the fundamental duty of the state to take special steps to bring up those minorities which are backward to the level of the general community. The founders of the Constitution wanted to encourage national unity and, at the same time, facilitate progressive social change. The endeavour was not only to create a society wherein the citizens felt an immense sense of national identity and cultural diversity, but also to provide protection to historically disadvantaged and vulnerable groups.4 Affirmative action usually is a states preferential policy toward particular groups in the society. Even though the rationale for affirmative action may vary from place to place, the main focus is to address structural inequalities between different groups in societies.5 It invokes ideas of fairness toward disadvantaged groups and redresses them for unjustified

Marc Galanter, COMPENSATORY DISCRIMINATION IN POLITICAL REPRESENTATION, Economic and Political Weekly, Annual Number February 1979, p.437 2 Ibid 3 CONSTITUENT ASSEMBLY DEBATES Vol.5, Lok Sabha Secretariat, Fourth Reprint 2003, p.214 4 Zoya Hasan, POLITICS OF INCLUSION: CASTE, MINORITIES AND AFFIRMATIVE ACTION, Oxford University Press, First Edition 2009, p.19 5 O. Chinnappa Reddy, THE COURT AND THE CONSTITUTION OF INDIA, Oxford University Press, First Edition 2008, p.112

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inequalities by way of redistributing and reallocating resources for their upliftment and to bring them at par with the rest of the society.6 Rectifying past wrongs to a particular section of the society is one of the most important rationales of affirmative action. It emphasizes compensatory and corrective action to rectify unfair treatment by caste. Reservations in legislative bodies and educational institutions serve to compensate for social disadvantages and economic disparities based on caste and community.7 Such policies are usually justified as a compensation to the victims of past discrimination and maltreatment and a corrective measure for the historic, social and political injustices against certain groups due to prejudice on the basis caste, ethnicity, gender, etc.8 The relative position of the disadvantaged group in the society and the duration of the position, historically and in present times, make for a good defense for efforts to improve the status of the group. The defense is also rooted in the theory of compensation. The disadvantaged group was put in the position by others and the compensatory measures are owed to the group by the society as whole.9 The rationale of distributive justice focuses on equity and redistribution of resources.10 It is a conscious attempt to restructure a given social order in such a way that marginalised social groups get adequate opportunities to realise their potential and obtain their due share in the collective resources of the society.11 Certain sections of the society have not only inherited inequality, but also had stunted growth throughout their lives sans material comforts, living on the margins of society and serving those who pushed them to the wall. Under such conditions, these people were never given equality of opportunity and resources which ultimately led to their sidelining and limited growth. The state seeks to
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Ashok Acharya, AFFIRMATIVE ACTION FOR DISADVANTAGED GROUPS, in Rajeev Bhargava, ed., POLITICS AND ETHICS OF THE INDIAN CONSTITUTION, Oxford University Press, First Edition 2008, p. 268 7 Michele S. Moses, UNDERSTANDING INSTRUMENTAL AND MORAL JUSTIFICATIONS FOR AFFIRMATIVE ACTION, University of Colorado at Boulder, p.8 8 Asha Gupta, AFFIRMATIVE ACTION IN HIGHER EDUCATION IN INDIA AND THE U.S., Center for Studies in Higher Education, University of Californi a, Berkeley, USA., p.13 9 Supra 6, p. 280 10 Supra 5, p.13. 11 Purshottam Aggarwal, BEYOND CASTE, Tehelka, Vol.3 Issue 18, 13 May, 2006, http://www.tehelka.com/story_main18.asp?filename=Ne051306beyond_caste.asp, accessed 21 November, 2010

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ensure non-discrimination while distributing goods and opportunities while including policies that seek to redress past discrimination.12 A major part of this strategy of redistribution of resources is to mitigate the conditions of disadvantaged groups on a quick and short track so that noticeable change is brought about in their conditions and equalise the position between unequal groups.13 In an inherently unequal society like that of India, dominance of a few castes ensures that the administrative structure is also dominated by those castes which were dominant. Any administration subjugated by particular vested interests cannot ensure distributive justice. Reservation provides for this chance of growth and equal access to opportunity and resources. Providing access to all, and ensuring this access, not just an opportunity to compete for access, through formal reservation points to distributive justice. It has been noted that for subsidies to reach the backward classes, they must themselves be senior bureaucrats.14 If a significant number of people from the backward classes will be in a high position as a result of reservation in higher education, they will help to promote both quality education and employment opportunities at a lower level. This is a good enough reason for providing them with quality education and opportunities for employment in the public sector.15

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Supra 6, p. 273 Supra 6, p.281 14 Meera Deo, AFFIRMATIVE ACTION RATIONALES AND OUTCOMES: A COMPARATIVE ANALYSIS OF THE UNITED STATES AND INDIA, Department of Sociology, University of California, Los Angeles, USA, p.15. 15 Rajesh Basrur, ed., CHALLENGES TO DEMOCRACY IN INDIA, Oxford University Press, First Edition 2009, p.160

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LEGAL ASPECT OF AFFIRMATIVE ACTION IN INDIA


The measures taken by the government for the uplifting the status of the socially disadvantaged castes and classes of India find their basis in the Constitution of India. Ambedkar was one of the principal architects of the of the Constitution and also the provisions enshrined in it for a system of reservations for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes. This system sought to redress the bias caused by historical inequalities in the Hindu social system.1 Part III of the Constitution, the Fundamental Rights, upholds equality before the law and equal protection of the law. This is enshrined in Articles 14, 15 and 16. Article 14 provides for equality before the law and equal protection of the laws within India.2 Article 15 prohibits discrimination against any citizen in any matter on the basis of religion, race, caste, sex or place of birth. Article 15(4) further allows the government to make special provisions for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes.3 Article 16 holds that there shall be equality of opportunity for all matters relating to employment to any office under the state. Article 16(4)(A) further makes a note that the State shall provide for reservation for backward classes.4 Furthermore, Article 17 of the Constitution expressly abolishes untouchability and says that its practice in any form is forbidden. 5 Article 29(2) states that no citizen of India shall be denied admission into public institutions or aid from the government funds on the basis of religion, race, caste or language. Article 15(4) read with Article 29(2) entitles the State to reserve seats for members of the backward classes in such institutions.6 Article 46 of the Constitution comes under Part IV and is a Directive Principle of State Policy which provides for both developmental and regulatory aspects of policy

David Keane, CASTE BASED DISCRIMINATION IN INTERNATIONAL HUMAN RIGHTS LAW, Ashgate Publishing, First Edition Reprint 2009, p.117 2 Durga Das Basu, CONSTITUTIONAL LAW OF INDIA, Lexis Nexis Butterworths Wadhwa Nagpur, Eighth Edition 2008, p.34 3 Ibid, p.64 4 Ibid, p.73 5 Ibid, p.78 6 Ibid, pp.166, 168

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making for the weaker sections of the society known as the Directive Principles of the State, It reads: (Article 46 of the Constitution, included in the Directive Principles of the State (Part IV of the Constitution) provides for that:) The State shall promote with special care the educational and economic interests of the weaker sections, of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Even though the Directive Principles are not enforceable by any court, they are like guidelines for the government and fundamental in the governance of the country. The government should keep in mind these principles while formulating its policies and making laws.7 Article 243D provides for reservation of a minimum number of seats in the village Panchayat for Scheduled Castes and Scheduled Tribes.8 Part XVI of the Constitution deals with special provisions relating to certain classes. Article 330 provides for reservation of seats in the Lok Sabha, the lower house of the Parliament, and Vidhan Sabha, the state assemblies.9

7 8

Supra 2, p.213 Ibid, p.457 9 Ibid, p.655

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CHAPTER 4: PROBLEMS ASSOCIATED WITH AFFIRMATIVE ACTION IN INDIA


One of the most critical factors in the successful implementation of affirmative action in India is the reaction of the people who are not benefitted by it. There are debates over whether such a policy such exist, what the criteria should be or how the scheme should be implemented. Upper caste Indians feel disadvantaged and discriminated against by the policy which favours the Scheduled Castes and the Scheduled Tribes by assigning them places in government jobs and institutes of higher education. At the heart of this debate is one of the unique features of Indian reservations that the number of people not favoured by the policies is far outnumbered by the number of people that come under the policy favours.1 The results of reservation policies are gradually coming into effect. There is an increase in the number of SC and ST politicians, government officials and university graduates, slowly edging out the upper castes out of jobs which they earlier dominated. Another argument against affirmative action is that rather than choosing the best candidates by academic merit, universities are accepting SC and ST students whose standards are lower and thus academic elitism is being undermined in this process. And hence meritorious individuals are denied admission to elite institutions of higher education. It is also argued that only the privileged among the minority, those with educational and economic advantage, actually benefit, leaving the majority of SCs and STs as badly off as ever. Critics of the reservation policy assert social integration is under threat as such a policy perpetuates distinctions and breeds resentment. Also, despite the states intention to abolish the system of caste from the society, the fact that caste is the major criterion for determining reservation and thus the caste distinctions have not disappeared. Muslims also feel disadvantaged by this policy. They feel that even though their religion is casteless, they are often economically and educationally disadvantaged.

Dipankar Gupta, ed., SOCIAL STRATIFICATION, Oxford University Press, Ninth Edition 2004, p. 472

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Though India has successfully implemented the Constitutional mandate of affirmative action to uplift the social and economic status of the scheduled castes and scheduled tribes in India yet it has been criticised on various counts. Upper castes are generally critical of extending the benefits for so long whereas it was provided for only first ten years from the date of enactment of the Constitution. Besides, there is continuous debate over the issue whether it should be extended to the successive generations of the SC/STs who have already availed of the benefits of reservations. They also point out that a particular section of SC/STs or a particular caste among SCs corners benefits of reservations thus creating elitism among them leaving vast majority marginalised. But such criticism is unfounded as similar kind of phenomena exists among upper castes also.

Upper caste Indians feel disadvantaged and discriminated against by the policy which favours the Scheduled Castes and the Scheduled Tribes by assigning them places in government jobs and institutes of higher education. At the heart of this debate is one of the unique features of Indian reservations that the number of people not favoured by the policies is far outnumbered by the number of people that come under the policy favours.2 Caste people allege that reservations promote mediocrity as merit is scaled down to accommodate reserve category candidates in educational institutions as well as in services and meritorious candidates among caste people are edged out in the process. Despite criticism, impact of reservations is there to be seen as a number of SC/ST political leaders, academicians and civil servants have been successful in creating a niche for themselves which otherwise they would never have been able to. Critics of reservation policy also assert that social integration is under threat as such reservation policy perpetuates distinctions and breeds resentment. They further aver that despite the states intention to abolish the system of caste from the society, caste is the major criterion for determining eligibility for reservation benefits and thus caste system has thrived. Criticism is again baseless as moot question is whether we really want to make caste irrelevant factor for social, economic and political intercourse in India. Political India is simply caste driven. All political moves, even economic policies, are made keeping in view the caste equations. While criticising caste system, we simply forget that caste is still
2

Dipankar Gupta, ed., SOCIAL STRATIFICATION, Oxford University Press, Ninth Edition 2004, p. 472

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a dominant factor in India which dominates Indian political, social and economic thought. Criticism based upon abolition, mediocrity and social and economic integration is merely posturing to oppose the reservations as they allow the erstwhile depressed classes to claim benefits of democratic governance in India. Had the reservation policy been socially undesirable, Muslims and Christians would never have agitated to claim its benefits though both these groups are presumed to be casteless and claim egalitarianism the essence of their religions. Besides, since the implementation of Mandal Commission recommendations, many more castes in India have been agitating to get the OBC status to claim benefits of the reservations.

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