DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW
2019-2020

Affirmative Action LAW

Final Draft
ON
“Affirmative action analysis in India”

UNDER THE GUIDANCE OF SUBMITTED BY

Dr. Atul kumar tiwari Animesh tiwari
RMLNLU Enroll No. – 150101155
8th SEMESTER

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AFFIRMATIVE ACTION : AN INTRODUCTION
“ Elections in India witnessed several Harijans being shot, beaten and forcibly prevented from
voting by higher caste groups. Hypocrisy is an English vice and that is how the Indians learnt
it. The use of Harijans to describe untouchables is a prime example. Harijans means Children
of God which makes people feel better about the way untouchables are treated by their fellow
beings”1

Aware of the generations of accumulated and accentuated group inequalities, the Constituent
Assembly adopted a constitutional policy of deliberate preferential treatment of the historically
disadvantaged people. First untouchability was abolished and its practice in any form forbidden
vide Article 17. The Untouchability Offences Act Of 1955( Renamed in 1967 as The Civil
Rights Act) adopted legal sanctions in aid of the constitutional prohibition. All temples and
religious institutions were thrown open to all classes and Sections of Hindus2 . A form apartheid,
Long practised by twice born classes against the untouchables was abolished and all citizens
became entitled to equal access to shops, public restaurants, hotels and places of entertainments
and to the use of wells, tanks, bathing places, roads and places of public resort maintained out of
state funds or dedicated to the use of general public3. Untouchabilty was not only a stigma it was
an attitude of mind4.

However mere constitutional declarations were not enough. The constitution therefore
recognized, promoted and encouraged special treatment in educational institutions and
employment opportunities for the socially less fortunate classes to any office under the state. It
empowered Parliament and state legislatures through ordinary law for the advancement of
Schedule Caste, Schedule Tribes and Other Backward Classes. Provisions could be made for
them without infringing the equality classes in Articles 14 and 16, for reservation of seats in
educational institutions and in posts in public services at almost all levels. The constitution has
also prescribed an agency and a method for designating Schedule Castes and Schedule Tribes.
The president was empowered to specify the castes, races or tribes that for the purposes of the

1
Nariman S Fali, STATE OF THE NATION, Hay House, Ed.2013,p:69
This is an extract from the comments of an English journalist covering Indian General Elections in 1980
2
Article 25(1)(b)
3
Article 15(2)
4
Ibid at 1

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constitution would be deemed to be Schedule Castes or Schedule Tribes within any particular
state or Union Territory.5 The Schedule Caste Order, promulgated by the president in 1950,
proceeded primarily on the basis of untouchability, measured by the incidence of social disability
combined with economic, operational, educational, residential and religious criteria6. The
principal intent of our constitution makers was to ensure that the Schedule Castes and Schedule
Tribes should be able to overcome their disabilities and disadvantages by preferential treatment
and to eliminate their distinctiveness by enabling them to share the advantages for lack of which

they are a class apart from other, more advantageous members of the Hindu Society.

I. Scope & OBJECTIVES

The scope and objectives of this project is to study in detail the constitutional policy of
affirmative action and make a critical analysis as per its evolution and implementation in the
course of six decades and put forward suggestions regarding its efficacies if and where found.

II. RESEARCH METHODOLOGY

Descriptive, Applied and Analytical methods of doctrinal research have been employed in the
completion of this project based on secondary sources of data and personal scrutiny, aided at
crucial conjunctures by the duly acknowledged.

5
Artilce 341 and 342
6
The Schedule Castes Order applies only to Hindus and a part of the Sikhs. Depressed Hindus who embraced
Buddhism, Jainism, Islam or Christianity are eligible for reservation under OBC category. Muslims and Christian
Dalits are still struggling to find their place in a Schedule Castes Order.

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 III. BACKWARD CLASSES: HOW SHALL WE DEFINE THEM ?

“While the categories of Schedule Castes and Schedule Tribes were constitutionally
determined, the socially and educationally backward classes of citizens (also designated for
preferential treatment) had been left undefined, even though specifically mentioned in Article
15(4) in 1951”7

The first backward Classes Commission8 appointed by the Central Government submitted its
report in 1955, listing 2399 castes as socially and educationally backward. However this report
was not accepted by the government since no objective tests were laid out for identifying OBC’s.
At that time, the government was opposed to the adoption of caste as a criterion for
backwardness; it would have preferred the application of economic or means test. These classes
of citizens were left to be defined by the states and by the government agencies. But the states
were singularly remiss in not gathering data over the years to enable a realistic determination of
these classes of citizens as compared to the rest of the population of the state.9 Nor was there
much progress in the amelioration of the lot of these classes of citizens. The absence of any such
constitutionally mandated provisions for determining OBC’S led to much speculative reasoning
by different state governments. However in the wilderness of this speculation and enlightened an
perhaps a correct way was shown by Havanur Commisssion10 set up by state of Karnataka. The
report dated ignored the principle of caste in the concept of social backwardness and devised a
new test: that of poverty coupled with isolation. The test cut across the caste system and
included certain sections of higher castes in the category of OBC’s while excluding certain
sections of classes traditionally recognized as lower castes. The report was accepted however its
constitutionality challenged11. Called upon to frame guidelines regarding identification of OBC,
the Supreme Court made certain observation. First putting 50 percent as the permissible limit for
reservation. Second being that caste doesnot constitute the basis for backwardness. One of the
most pertinent observation in this case was that by Justice Chinappa Reddy where he said:

7
Nariman S Fali, STATE OF THE NATION, Hay House, Ed.2013,p:70
8
Kaka Kelkar Commission
9
Ibid at 7
10
Report dated 19th November, 1975
11
K.C.Vasanth v State of Karnataka

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“The paradox of the system of reservation is that it has engendered a spirit of self denigration
among the people. Nowhere else in the world do castes, classes or communities queue up for
the sake of gaining the backward status. Nowhere else in the world is there competition to
assert backwardness and claim ‘we are more backward than you’. This is an unhappy and
disquieting situation but it is a stark reality.”

Again Justice D.A.Desai who made a fervent plea for the recognition of poverty as a true
criterion for backwardness, said that if a survey were made about the benefits of preferential
treatment among the undefined economically and socially backward classes, “it would
unmistakably show that the benefits of reservation are snatched away by the top creamy layer
of the backward castes”. This consideration prompted Chief Justice Yeshawant .V.Chandrachud
to recommend that the test of economic backwardness be applied not only to the OBC’s but also
to Schedule Caste and Schedule Tribes. He further suggested an five year review of the policy
regarding reservation in education and employment. However rather than taking note of the
suggestions of the learned Justices the government of the day12 in the wake of continuous public
debate came up with a policy decision that was to change the polity of India for ever.

IV. MANDAL COMMISSION: A HISTORIC BLUNDER?

In January, 1979, the Government of India by an order issued under Article 340 of the
Constitution appointed a second Backward Class Commission to investigate the second
Backward Class Commission to investigate the conditions of socially and educationally
backward classes within the territory of India. The Commission was known as the “Mandal
Commission” after its chairman B.P.Mandal, a former chief minister of Bihar. The report of
Mandal Commission which came in December 1980, said that the reservations envisaged in
Article 25(4) applied to socially and educationally backward classes, not to economically
backward ones and concluded that in view of the permanent stratification of a society in a
hierarchical caste order, low caste status had a direct bearing on a persons social backwardness.
The commission then recommended a 27 percent reservation in favour of OBC’s in addition to
the existing 22.5 percent. The recommendation of the commission were accepted by V.P Singh
government. As expected there was protests as well as self immolation against the acceptance of

12
The government was then headed by Prime Minister V.P.Singh

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the commissions recommendation. The implementation of the report was challenged in Supreme
Court13. The group of Writ Petitions was first heard by a Constitution Bench headed by CJI
Raghunath Mishra and then referred to a special bench of nine justices. Of the vital points raised
in the court there did emerge a majority view (6:3). This is what the court said:

i. That neither the Constitution nor the law prescribes the procedure or method of
identification of backward classes; nor was it possible or advisable for the court to lay
down any such procedure or method.
ii. That it must be left to the appointed authorities to identify backward classes, and so long
as the identification ( by a survey) covered the entire populace no objection could be
taken to it.
iii. That it was necessary for a class and that it was similarly situated to the Schedule Castes
and Schedule Tribes; backward classes of citizens could not be identified only and
exclusively with reference to economic criteria.
iv. That the adequacy of representation of a particular class in services under the state was a
matter within the subjective satisfaction of the appropriate government: not to be
ordinarily interfered with by the courts on judicial review.

In Indra Swahney, a great opportunity to lay down the limits beyond which the government
could not execute the policy of reservation was passed over. Where the court could have and
should have, spoken authoratively it refrained from doing so, particularly in context with the
question whether reservation is anti-meredian. Whilst correctly holding that ‘it may not be said
that per-se reservations are anti-meredian’ the court did not say were certain services and
positions where, whether on account of the duties attached to them or the level at which they
obtain ‘merit only counts’. But then the court went on to simply caution that ‘ in such situations
it may not be advisable to provide for reservations’, it was for the government of India to
consider and specify the service and posts to which the reservation shall not apply14. With utmost
respect to the learned judges of the Apex Court it would be fair to say that they derelicted on
their duty to provide a firm constitutional guidelines for implementing and executing the
policy of reservation when they passed on the buck to the Government of India.

13
Indra Swahney V. UOI and Ors W.P. No. 930 of 1990
14
Nariman S Fali, STATE OF THE NATION, Hay House, Ed.2013,p:79

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 V. RESERVATION POLICY : A JUDICIAL CRITIQUE

In the Constituent Assembly itself Dr. Ambedkar had indicated what he perceived as the courts
role in determination of reservations for OBC’s15. He said that the rule of equality of
opportunity must not get destroyed by the magnitude of reservation prescribed by the executive
authorities. The Concept of equality in our constitution has two distinct dimensions. First it
embodies the principle of non-discrimination16 and second at the same time, it obligates the state
to take affirmative actions for ensuring that unequals in society are brought to a level where they
can compete with others17. But as to which dimension is the more important in a given case, and
as to what should be the balancing factor in the broad conspectus of the Equality provisions, are
only for the Supreme Court to say. It could not be and it cannot be left to the government to
provide or for a commission appointed by a government to determine.18 Marc Glanter has
offered a philosophical justification for the lack of a strong judicial approach in the field what he
describes as ‘ compensatory discrimination’19:

“Compensatory discrimination offers a way to leaven our formalism without entirely

abandoning its comforts. The Indian example is instructive: India has managed to pursue a
commitment to substantive justice without allowing that commitment to dissolve competing
commitments to formal equality that make law viable in a diverse society with limited
consensus. The Indian experience displays a principled eclecticism that avoids suppressing the
altruistic fraternal impulse that animates compensatory politics, but that also avoids being
enslaved by it. From afar it reflects a temepered legalism- one we find more congenial in
practice than in theory.’’

But whatever may be the view from afar, the experience of others within India has been far more
pragmatic and realistic; it has been expressed in the following terms:

“ From being an instrument of egalitarianism, the reservation policy is now seen as the most
blatant expression of what has now come to be known as ‘vote bank politics’. This is particularly

15
Constituent Assembly Debates, 8 November 1948, Vol.7 p.702
16
Article 14, 15(1), (2) and 16(2)
17
Article 15,16,39,39-A and 41
18
Nariman S Fali, STATE OF THE NATI ON, Hay House, Ed.2013,p:80
19
Marc Glanter: COMPETING EQUALITIES, LAW AND THE BACKWARD CLASSES IN INDIA, University of California Press, Los
Angeles, 1984, p.567

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so in regard to reservations for the OBC’s in the post-Mandal scenario, where the most
contentious controversies are centred. It is precisely here that affirmative action seems to be
falling short. Adressing one injustice or inequality at the cost of causing others will only
politicize society not make it more equitableor egalitarian. Both parliament and the court must
critique reservation policies and legislations for a constitutional understanding of inclusive and
integral justice.”20. What is solely lacking in India is the critique of the Countrys highest court. It
is precisely because Indian society is so diverse and there is little or no consensus that an
effective judicial pronouncement by the Supreme Court would have provided a very helpful
guide, and more importantly it would have served as a most useful check. The Court, when
called upon to lay down the law, unfortunately yielded to the temptation of not firmly saying
either yea or nay. If only the majority in Indra Swahney had set the goalposts and had specified
what could or could not be done in matter of reservations its exposition in the judgment would
have been regarded as law binding on all of us under Articles 141 and 144 of the Constitution.
Instead there have been only bits of advice and recommendations from the court which since
they were not expressed in authorative terms have been largely ignored21.

VI. RESERVATION IN INDIA: AN EPILOGUE

After more than 60 years of the Constitution, how can one accurately define equality in the
context of educational and job opportunities. This is one of the more difficult-as yet answered –
questions in the life of 65-year old nation. Even in 2014 no one is quite sure as to what equality
of educational and job opportunities truly means. Here’s why:

i. It can be hardly argued that once a backward class, nlways a backward class as this
would defeat the very purpose of special provisions made in the constitution for the
advancement of backward classes, and for enabling them to come to the level of and
compete with the forward classes of citizens.
ii. To continue to confer upon ‘advanced section’ of the backward classes the special
benefits amounts to treating equals unequally. It undoubtedly violates the provisions of
Article 14 and 16 of the Constitution.

20
Rudolf C. Heredia “ Quoatas and Minority Rights: Recapturing the Constitutional Vision”, Economic and Political
Weekly, 23rd July 2011, Vol.XLVI, pp.66-67
21
Nariman S Fali, STATE OF THE NATION, Hay House, Ed.2013,p:83

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 iii. Since there is no judicially recommended criterion evolved of these advanced sections
amongst the OBC’s there is room for executive change of opinon. And that is happening.
The ceiling of creamy layer has been proposed to be fixed at Rs.12 lakh per annum which
if happens will be a sheer travesty of justice.
iv. To rank advanced sections of the backward classes with the rest of the backward classes
would equally violate the right to equality of the rest in those classes. It would lead to
perverting the objectives of the special constitutional provisions since the forwards
among the backward classes will be facilitated to gobble up the special benefits keeping
the rest in a state of perpetual backwardness.

There has been too far much dithering on this subject. What will help, I believe is a continuous
and assiduous gathering of data, a continuous process of objective re-evaluation of progress
registered by the backward categories, a more focused preferential treatment for the
disadvantaged and vulnerable and above all a broader constitutional vision on the Part of Indias
Supreme Court and Parliament of a more egalitarian society together with a firm articulation of
this lest an otherwise deserving policy of reservations be degraded into a vote catching exercise
leading ultimately to ‘reverse discrimination’.

VII. REFERENCES

BOOKS

 Nariman S Fali, STATE OF THE NATION, Hay House,Delhi, Ed.2013.

 Marc Glanter: COMPETING EQUALITIES, LAW AND THE BACKWARD CLASSES IN INDIA,
University of California Press, Los Angeles, 1984.
 Constituent Assembly Debates, 8 November 1948, Vol.7

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JOURNAL

 Rudolf C. Heredia “Quoatas and Minority Rights: Recapturing the

Constitutional Vision”, Economic and Political Weekly, 23rd July 2011,
Vol.XLVI.

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