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Published : October 06, 2011 | Author : srabanee1991
Category : Human Rights laws | Total Views : 56648 | Rating :

Srabanee Ghosh Student Hidayatullah National Law University

“Protective Discrimination”

Our society has always been full of inequalities. It was a caste ridden, stratified hierarchical society, and a particular segment of the society had been denied the bare human rights. Their education, wages, living conditions, social status was dictated by the whims of upper strata of society, reducing them to destitution. The economic backwardness brought social awkwardness which consequently made them downtrodden and thus depriving them even of the dignity of life. In a society compartmentalised on caste basis, upper castes controlled the levers of power enabling them to run their whips, prejudicial to the interests of lower segments of the society. Lower castes had to serve the upper castes without having any say and grievance redressal mechanism. This inhumane and barbaric condition perpetuated for centuries, till "we the people" realised the malady impelling the framers of our constitution to think.

Any democratic society faces the challenge of harmonising two essentially contradictory political concepts--one, equality before the law irrespective of religion, caste, creed, race, and gender, and the other, social justice at the cost of the same commitment for equality before the law. Even a developed democracy like the United States is no exception to the rule and has taken recourse to affirmative action to ensure justice for the less privileged sections of the society at the cost of individual merit and equality of all citizens before the law. In India large numbers of people have experienced social discrimination through centuries on account of its peculiar institution called the caste system, efforts have been made to provide redress for these under-privileged sections, through the policy of reservations or quotas for them in jobs, seats in educational institutions and legislatures, and in governmental aid, loans and other developmental assistance.

In all, four under-privileged categories have either received benefits under the scheme or have been seeking such benefits, namely the Scheduled Castes (SCs) and the Scheduled Tribes (STs), the Other Backward Classes (OBCs), the religious minorities or sections thereof, and lately, the women. This project discusses these categories from a political perspective. Its scope however, is limited to assessing the schemes both under operation as well as under consideration, only at the national level. The experiences of different states have been referred to only occasionally to provide an example or to make a particular point.

Meaning and Background
Protective discrimination is the policy of granting special privileges to the downtrodden and the underprivileged sections of society, most commonly women. These are affirmative action programs, most visible in both the United States and India, where there has been a history of racial and caste discrimination. The practice is most prominent in India, where it has been enshrined in the constitution and institutionalized.

The need to discriminate positively in favour of the socially underprivileged was felt for the first time during the nationalist movement. It was Mahatma Gandhi, himself a devout Hindu and a staunch believer in the caste system, who was the first leader to realise the importance of the subject and to invoke the conscience of the upper castes to this age-old social malady of relegating whole communities to the degrading position of “untouchables”. He also understood the political logic of inducting this large body of people into the political mainstream in order to make the freedom movement more broad based. By renaming these untouchables as “Harijans” (people of God) he tried to give this policy a religious sanction so as not to disturb the traditional sensitivities of the caste Hindus more than was really necessary.

The Constitution of independent India which largely followed the pattern of the Government of India Act, 1935, made provisions for positive discrimination in favour of the Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted about 23% of the divided India’s population. Besides reserving parliamentary seats for them they were given advantages in terms of admission to schools and colleges, jobs in the public sector, various pecuniary benefits for their overall development, and so on. The constitution indeed guaranteed the fundamental right of equality of all citizens before the law but it also categorically laid down that nothing in the constitution “shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedules Castes and the Scheduled Tribes”.

Some of the constitutional provisions which aimed at positive discrimination are:
# Article 17: Abolition of “untouchability” and making its practice in any form a punishable offence.
# Article 46: Promotion of educational and economic interests.
# Article 16 and 335: Preferential treatment in matters of employment in public services.
# 330 and 332: Reservation of seats in the Lok Sabha and State Assemblies.

Later, the job-related positive discrimination was extended to government-supported autonomous bodies. A 1974 Government order laid down that all such bodies which employed more than 20 people, and where 50% of the recurring expenditure was met out of grants-in-aid from the Central Government, and which received annual grants-in-aid of at least Rs.200,000 should invariably provide for reservation of SCs and STs in posts and services. The general rule which exempted the scientific and technical posts from the purview of positive discrimination was applicable to the autonomous bodies too.

The Record
SCs and STs

Specific provisions for reservations in services in favour of the members of Scheduled Castes and Scheduled Tribes have been made as follows in the Constitution of India:-

Article 16(1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Article 16(4): Article 16 provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, Nevertheless, “nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”.

There have been two Constitution Amendments incorporated in Article 16(4), they are:-
Article 16 (4-A) : Nothing in this article shall prevent the state from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in services under the state in favour of SCs/STs which in opinion of state, are not adequate by represented in the services under the state.

The 77th Amendment to the Constitution has been brought into effect permitting reservation in promotion to the Scheduled Castes and Scheduled Tribes.

Thus, by amending the Constitution, the Parliament has removed the base as interpreted by Supreme Court in Indira Sawhney that the appointment does not include promotion. Article 16(4A) thus revives the interpretation put on Article 16. Rule of reservation can apply not only to initial recruitments but also to promotions. But no promotion can be made in promotion posts for the OBC’s.

The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a manner that a balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes as well as for the other members of the society.

Article 16 (4-B): “Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

The Constitution (Eighty- First Amendment) Act, 2000 has added Article 16(4B) to the Constitution. The Amendment envisages that the unfilled reserved vacancies are to be carried forward to the subsequent years and these vacancies are to be treated as distinct and separate from the current vacancies during any year. The rule of 50% reservation laid down by the Supreme Court is to be applied only to normal vacancies. This means that the unfilled reserved vacancies can be carried forward from year to year without any limit, and are to be filled separately from the normal vacancies. This Amendment also modifies the proposition laid down by the Supreme Court in Indira Sawhney.

Article 335: This article provides that “the claims of the members of the SCs and STs shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments in services and posts in connection with the affairs of the Union or of a State”.

Reservation for backward classes in India
ARTICLE 16(4):- This clause (4) expressly provides for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state is not adequately represented in the services under the state. Here the term state denotes both Central and state governments and their instrumentalities.

The power conferred on the State can only be exercised in favour of a backward class and therefore, whether a particular class of citizens is backward, is an objective factor to be determined by the state.

It was held in Triloki Nath v. State of J & K, that State determination must be justiciable and may be challenged if it is based on irrelevant considerations.

In Mohan Kumar Singhania v. Union of India, explaining the nature of Article 16(4) the Supreme Court has stated that it is an enabling provision conferring a discretionary power on the state for making any provision or reservation of any backward class of citizens which in the opinion of the state is not adequately represented in the service of the state. Article 16(4) neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation. The state government takes the total population of the backward class and their representation in the state services and after doing the necessary exercise makes the reservation and provides the percentage of reservation for the posts, then the percentage has to be followed strictly.

What are “backward classes U/Art. 16(4) of the constitution?
There was an overwhelming majority in the nation that was still backward – socially, economically, educationally, and politically. These victims of entrenched backwardness comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). Even though, these classes are generically the "Backward Classes,” the nature and magnitude of their backwardness are not the same.

The words ' "backward class of citizens" occurring in Article 16 (4) are neither defined nor explained in the Constitution though the same words occurring in Article 15 (4) are followed by a qualifying phrase, "Socially and Educationally'' backward classes.

In the course of debate in the Parliament on the intendment of Article 16 (4), Dr. B.R. Ambedkar, expressed his views that “backward classes” are which nothing else but a collection of certain castes.

Incidentally, it is also necessary to point out that the Supreme Court in all its decisions on reservation has interpreted the expression `backward classes' in Article 16 (4) to mean the "socially and educationally" backward. It also emphatically rejected "economic backwardness" as the only or the primary criterion for reservation under article 16 (4) and observed that economic backwardness has to be on account of social and educational backwardness. The true meaning of this expression has been considered in a number of cases by the Supreme Court starting from Balaji to Indira Sawhney.

(1) In M.R. Balaji v. State of Mysore, it was held that the caste of a group of persons cannot be the sole or even predominant factor though it may be a relevant test for ascertaining whether a particular class is backward or not. The two tests should be conjunctively applied in determining backward classes: one, they should be comparable to the Schedule Castes and Schedule Tribes in the matter of their backwardness; and, two, they should satisfy the means test, that is to say, the test of economic backwardness laid down by the State government in the context of the prevailing economic conditions. Poverty, caste, occupation and habitation are the principal factors contributing to social backwardness.

(2) In R. Chitralekha and Anr. v. State of Mysore and Ors. and Triloki Nath v. J & K State and K.C. Vasanth Kumar v. Karnataka: The apex Court explaining the meaning of ‘Class’ observed that “The quintessence of the definition of “Class” is that a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward class of citizens' under Article 16 (4) of the Constitution.”

(3) Further in R. Chitralekha v. State of Mysore, it was stated that: “...what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class.”

(4) In State of Andhra Pradesh v. P. Sagar, it has been observed that: The expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted.

(5) In Triloki Nath v. J & K State (II) Shah, J., speaking for the Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for the purpose of Article 16 (4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.

The expression ‘backward class’ is not used as synonymous with ‘backward caste’ or ‘backward community’. The members of an entire caste or community may in a social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class.

(6) In A. Peeriakaruppan, etc. v. State of Tamil Nadu: The Supreme Court observed that “A caste has always been recognised as a class. If the members of an entire caste or community at a given time are socially, economically and educationally backward that caste on that account be treated as a backward class. This is not because they are members of that caste or community but because they form a class.”

(7) Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. was of the view that “In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test...”

(8) In Indira Sawhney and Ors. Vs. Union of India and Ors. , the Court observed that:-

# The meaning of the expression “backward classes of citizens” is not qualified or restricted by saying that it means those other backward classes who are situated similarly to Scheduled Caste and/or Scheduled Tribes. Backwardness being a relative term must in the context be judged by the general level of advancement of the entire population of the country or the State, as the case may be.

# There is adequate safeguard against misuse by the political executive of the power u/Art. 16(4) in the provision itself. Any determination of backwardness is neither a subjective exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.

# ‘Caste’ neither can be the sole criterion nor can it be equated with 'class' for the purpose of Article 16 (4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of 'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens.

# Unless 'caste' satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established and accepted criteria to identify the 'backward class', a caste per se without satisfying the agreed formulae generally cannot fall within the meaning of 'backward class of citizens' under Article 16 (4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata - indicating the social backwardness. And ‘Class’ has occupation and Caste nexus; it is homogeneous and is determined by birth. It further approved Chitralekha case.

(9) Further in case of Jagdish Negi v. State of U.P. the Court held “Backwardness is not a static phenomenon. It cannot continue indefinitely and the State is entitled to review the situation from time to time.”

Part III of the constitution in relation to reservation in public services
Article 14 is in general terms whereas Arts. 15 and 16 are of specific nature. Shortly put the combined effect of Arts. 14, 15 and 16 as far as public employment is concerned, is that they guarantee non-discriminatory treatment of citizens in matters relating to public employment. Religion, race, caste, sex, descent, place of birth, residence or any of them cannot be the basis for discrimination against a citizen in matters relating to public employment or office under the state. Reservation in favour of backward classes of citizens is dealt with by cl. (4) of Art.16. It is an enabling provision and is in the nature of a provision or an exception to cl. (1) of Article 16 of the Constitution.

Whether Art.16 (4) an exception toArt.16 (1)?
Although cl. (4) has an over-riding flavour as the opening words “Nothing in the Article shall prevent the State from……….”, suggest as Mudholkar, J. referring to these words in Devdasan pointed out: The over-riding effect of cl.(4) on cls. (1) and (2) could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. That is all”.

The view in T.Devadasan v. Union of India, that Art. 16(4) was an exception to Art. 16(1) received a severe setback from the majority decision in State of Kerala v. N.M. Thomas, which held that 16(4) was not an exception to Art.16(1) but that it was merely an emphatic way of stating a principle implicit in Art.16(1). The view taken in N.M Thomas has been accepted as the correct one and by the majority in Indira Sawhney where the Court pointed out: “Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.”

Article 16(4) and Article 335
Article 335: provides that “the claims of the members of the SCs and STs shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments in services and posts in connection with the affairs of the Union or of a State”.

There has been some debate as to whether Art.335 had any limiting effect on the power of reservation conferred by Art. 16 (4). The nine judge bench of the Supreme Court in Indira Sawhney considered the argument that the mandate of Art.335 implied that reservation should be read subject to the qualification engrafted in Art.335 i.e. consistently with the maintenance of efficiency of administration. Dealing with the argument majority framed an issue as to whether reservations were anti-meritarian? The majority then observed that may be efficiency, competence and merit are not synonymous concepts; may be it is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of the efficiency of an administration.

Even so the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with-and may in some cases, excel members of open competitor candidates. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and what is required is an opportunity to prove it.

But in case of Article 16, Article 355 would be relevant. It may be permissible for the government to prescribe a reasonably lower standard for scheduled castes/Scheduled tribes/backward classes consistent with the requirements of efficiency of administration. It would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature and duties attached to the post and the interest of the general public should also be kept in mind. While on Article 355, we are of the opinion that there are certain services and positions where merit alone counts. In such situations, it may not be advisable to provide for reservations. For example technical post in Research and Development organisations/departments/institutions, superspecialities in medicine, engineering etc.

Cent percent reservation not permissible:
No cent percent reservation
The state is not entitled to make a cent percent reservation. That would be violative of Art.16 of the Constitution. The Supreme Court has ruled time and again, that where there is no only one post in the cadre, there can be no reservation for the backward class with reference to that post either for recruitment at the initial stage or filling up a future vacancy in respect of that post otherwise the same would amount to 100 per cent reservation. A single promotional post can also not be reserved.

Application of Rotational Rule
In case of Post Graduate Institute of Medical Education & Research, Chandigarh it has been categorically stated that unless there is plurality of posts in a cadre, the question of reservation will not arise because any-attempt at reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented.

Extent of reservation
The extent of reservation should not exceed 50%
In Indira Sawhney case the majority pointed out that cl. (4) of Art. 16 spoke of adequate representation and not proportionate representation-although the proportion of population of backward classes to the total population would a relevant factor. After referring to the earlier decisions of the Court, the majority concluded that the reservation contemplated in cl. (4) of Art. 16 should not exceed 50%.

It also pointed out that for the purpose of applying the rule of 50%, a year should be taken as the unit and not the entire strength of the cadre.

Concept of creamy layer:
In the Mandal commission case, the Supreme Court has clearly and authoritatively laid down that the socially advanced members of the backward class, the “creamy layer”, has to be excluded from the backward class and the benefit of reservation under Article 16(4) can only be given to a class which remains after the exclusion of the “creamy layer”. This would more appropriately serve the purpose and object of Article 16(4).

At present, the benefits of job reservations are most chewed up by the more effluent sections of the backward class and the benefit of the reservation policy is not being percolated to the poor and the really backward class amongst them which makes them poorer and more backward. So, the government must give effect to the observation made my Supreme Court in Mandal case in order to achieve social and economic justice for the whole section of backward classes.

Reservations for Minorities
The current official position is that: “No scheme for minorities below the poverty line is being implemented in the country.” Still, there is a standing instruction of the Government of India “to all the Ministries/Departments of Government of India that whenever a Selection Committee/Board exists or has to be constituted for making recruitment to 10 or more vacancies in Group C or Group D posts/services, it shall be mandatory to have one member belonging to SC/ST and one member belonging to minority community in such Committees/Boards. Where, however, the number of vacancies against which selection is to be made is less than 10, no effort should be spared in finding a Scheduled Caste/ Scheduled Tribes officer and a minority community officer for inclusion in such Committees/Boards.”

Reservations for Women
Oppressed and underprivileged women (through centuries of male domination)as a whole have not received the attention of the Indian state in terms of compensatory discrimination. One reason for this neglect could be that there were many leading women in India’s freedom struggle and they always regarded themselves as equals of their male counterparts. As emancipated women themselves they felt they would serve as role models for women’s liberation in general. Moreover, against the background of such a great cause as national independence they felt that emphasising group interests such as women’s rights would serve to weaken the larger struggle.

Even after independence it took many years for the demand for womens rights to crystallise. It actually happened under UN pressure. In the early 1960s the United Nations had asked member nations to “prepare reports on women’s status.” India procrastinated for years. It responded only in the early 1970s, when the UN decided to observe 1975 as the International Year of Women. Prime Minister Indira Gandhi nominated the veteran freedom fighter from West Bengal Phulrenu Guha to prepare a report on the Status of Women in India. The report, Toward Equality, which ran into 480 pages and is frequently termed as the “founding text” in feminist circles was tabled in parliament in 1975. Its recommendations, however, were not for positive discrimination in favour of women but against discrimination of women for which the state should be vigilant.

Neither the Kalelkar nor the Mandal commissions had a female member. Had there been one or some female members a demand for reservation for women as an underprivileged social category may have emerged. For the last couple of decades, primarily on account of the activities of women’s organisations, considerable social consciousness has developed in favour of feminist demands. Sensitivity to the issue is manifest in the way cabinets or the working committees of different political parties are composed. A recent opinion poll showed that 75% men and 79% women were in favour of an active role of women in politics. They also favoured reservation for women in the legislatures.

The United Front government elected in 1996, in keeping with its Common Minimum Program and in line with the resolution adapted by the 10th Lok Sabha has tabled the Constitution (81st Amendment) Bill (popularly known as Women’s Reservation Bill) providing for reservation of one-third of the seats in the Lok Sabha and state assemblies for women. Already at the panchayat level 33% of seats are reserved for them. The bill has raised a huge controversy in Indian politics. While on the one hand the women activists themselves are divided about its efficacy it has vertically split the movement between depressed class women and those champions of the bill who see it primarily as one for gender justice. To add to the controversy is the opposition of the OBC leaders to the bill. They apprehend that the bill would deprive them of their hard-earned gains made through years of agitation. They fear that since their women folk are much more backward compared to their upper caste counterparts all seats would be taken by the upper castes tilting the political balance once again in favour of the upper castes.

Different Perspectives
Merit versus Social Justice
The most common criticism raised against the policy of reservations is that it is at the cost of meritocracy and that it promotes mediocrity which a developing society like India can ill afford. While apparently and theoretically the argument seems well-founded there is neither evidence to support the fear nor is it true to say that meritocracy would be the norm once reservation is lifted. All kinds of undocumented reservations operate in India through kinship connections, caste connections and professional connections. For instance the Delhi University Teachers Association (DUTA) is generally opposed to the OBC reservation but does not mind asking for reservations for the wards of the teachers or for weightage in their favour for university enrollment. Commenting on the impact of reservations on the educational standard, sociologist Andre Beteille writes: “Everybody says that the standards have fallen in the Indian universities. However I find it difficult to judge, firstly, whether standards have in fact fallen, and secondly, if they have fallen, whether the fall has been due to affirmative action. At the bottom end of the scale, a very large proportion of the present crop of graduates would not have graduated in the 1950s. On the other hand the number of good students is probably higher-so at the top end of the scale, standards are maintained. I would attribute the lowering of standards in this particular sense to the massive and sometimes reckless expansion of higher education under political pressure.

It is probably not correct that the weightage system would perpetually introduce bad students to the university. From the record of the south Indian states it appears that the more the backward classes enter the system the more their standards improve on account of competition amongst themselves.

Inherent Contradictions
The more fundamental question, however, is how far the quotas have and other privileges helped the target groups. As we have seen above the progress in this regard has at best been marginal. Whatever progress has been registered by the depressed classes it is more or less proportionate to the overall progress achieved by the nation. As target groups they should have shown a visibly better record, but this has not happened. In a country like India where poverty, illiteracy and deprivation are so widespread, it is a questionable proposition to think in terms of upliftment for particular social groups, that too by emphasizing reservations alone. A report on the state of primary education in India brought out by the India Today portrays a depressing picture of the Indian state’s failure in this regard. The problem as such is much larger and mere targetting particular sections of society would not do. It is surmised that since reservations are the least expensive and politically most rewarding the political parties find them the easiest policy options available to them.

A related question is whether the privileges are being cornered by the élites amongst the target groups. One common criticism against the reservation policy is that it has benefited only a small section of them. According to estimates only 6% of the SC families have benefited from the policy. It must, however, be admitted that even this small number has thrown up leadership for the community to bargain for the larger interests of the community at large. Moreover, it is a fact of life that in any community within a competitive polity the initial beneficiaries are invariably the élites. This criticism, however, is largely valid in respect of the OBCs where some of the backward castes are way above others amongst them. As such, any reservation policy meant for the OBC community as a whole, is bound to end in ineffectiveness in the long run by this internal contradiction alone. As most of the underprivileged amongst the OBCs would ask for their rights there would be cleavages in the OBC identity as is now being seen in Bihar. There the Kurmis and the Koiris are opposing the Yadavs, both belonging to the OBC category. Moreover, with other demands being raised for quota allocations by women, professional groups, the poor from the upper caste Hindus, and so on, there is a possibility that the entire system of OBC reservation would collapse as a result of these divisions.

Persistence of Caste Prejudice
One other issue which needs to be discussed here is whether there can ever be any real improvement in the lot of the underprivileged sections of the society, whether they belong to the SC/STs or the OBCs, without attacking the caste system itself, this being the essence of the debate between Gandhi and Ambedkar. Can the elimination of the stigma experienced by the under-privileged be achieved through the philanthropy and grace of the upper caste Hindus or has it to be earned or wrested by the under-privileged themselves through their struggles, even violent struggles. If violence is inherent in the circumstances would it not perpetuate the caste cleavages at the cost of social harmony? In any event it has been noticed that the quota system has eliminated whatever goodwill the upper castes had for the lower castes. As one non-Indian scholar wrote in 1979 “In the course of my visits to India over two decades I have noticed an erosion and virtual disappearance of a liberalminded public opinion supporting private efforts to improve opportunities for the S.C.”

This lack of concern is manifest in the record of private sector employment. “The pervasive over-estimation of the amount and effectiveness of preferential treatment reinforces the notion that enough (or too much) is already being done and nothing more is called for.” A recent study based on interviews of 500 Punjab government employees stationed in Chandigarh reveals the deep-seated prejudice among the non-SCs against the quota privileges meant for the SCs. Particularly prejudiced are the Class II and III categories of the employees. Caste conflicts are rampant as a reading of the Annual Reports of the Home Ministry reveals. During 1996 there were 672 caste-related incidents involving all the three broad caste categories, namely, the Forward Castes, the OBCs and the SCs.

A Spectre of Two Indias
In the current context the most critical question is whether two Indias are being created by two diametrically opposite socio-political forces-the demand for modernisation on the one hand bolstered by the opening up Affirmative Action in India 163 of the economy and its integration into the techno-intensive global economy -- and on the other, the demand for social justice undermining the core of that theory. One calls for the withdrawal of the state and the other assigns to the state the role of the greatest dispenser of equity. Against this background it would be increasingly difficult for the state to implement its policy of reservations especially where the OBCs are concerned. On the one hand the number of government jobs is shrinkig while on the other pressure for more jobs is mounting.

There is yet another related issue. Greater liberalisation of the economy means more modernization of trade and industry. The traditional vocations of the backward classes such as cleaning, haircutting, fishing and tanning are under threat of being controlled by the upper castes particularly in the urban areas. With the growing use of technology in these trades they are no longer looked down upon as occupations. Therefore, the backwards cannot depend any more upon the state; they would have to respond to the market as well. This brings into question the broader recommendation of the Mandal Commission.

The debate over positive discrimination in India is acrimonious and is increasingly finding expression in violence. But a democracy which is essentially a social contraption is neither dictated by logic nor by ethics. At the root of democratic success is social engineering which is effected through political bargaining. In India the process is on and only the future would tell whether its experiments were in the right direction or not.

Social categories are neither static nor monolithic. But in India the hierarchical stratifications have by and large survived for centuries and they continue to be politically relevant. In the given situation the policy of reservation seems to continue for an indefinite period, at least for the SC/STs. But this is the easiest thing that the state could think of. The real challenge for the state should be to make the disadvantaged groups competitive through raising their standards so as to let them be on par with the traditionally successful upper classes. That is cost intensive and for that there has to be a shift in the dynamics of power. The disadvantage would have to come to the fore of politics. The present Dalit movement seems to be straws in the wind indicating this penchant for transformation which is bound to be violent.

The same may not, however, be said about the OBCs. Unlike the SCs and STs the so called OBCs have held political power in different historical periods in different regions of India. They are neither as socially stigmatized nor at the bottom of the economic hierarchy as the scheduled castes. In short they are not such an ostracised lot as the SCs have been. Given this situation the demand for OBC reservation is indeed politically motivated, the logic behind which is largely indefensible. In any case, increasingly the role of the state would be in question. The assumption here is that the Indian society is traditionally violent and vertically and horizontally disintegrative. It is the enormous military power in the hands of the central government, both during the Mughals and the British, that actually contained it. The apologists for state power argue in favour of a militaristic role of the state to maintain societal order while the champions of civil society put the blame squarely on the state for the growing violence in the society. The debate warrants a closer scrutiny against the background of the social acrimony that the policy of reservation has accentuated

1. Marc Galanter, Competing Equalities : Law and the Backward Classes in India, Delhi, OUP, 1984
2. Paul R Brass, The Politics of India since Independence, Cambridge, Cambridge University Press, 1990
3. Professor Parmaji, Caste Reservations and Performance : Research Findings, Warangal, Mamata, 1985
4. V A Pai Panandiker, The Politics of Backwardness: Reservation Policy in India, New Delhi, Konark, 1997

1. Black’s Law Dictionary, (7th edn., West Group Publishers 2002)
2. Oxford English Dictionary, (10th edn., Oxford University Press, New Delhi 1999)
# Gandhi accepted the rationale behind the caste system and it’s ideal. He was, however, unhappy about its reality. In fact he was ambivalent about its continuity. The origin of the word Affirmative Action in India 165 “untouchables” is not clear. The four-tier Hindu varnashram system does not include them. Obviously they were the fifth category in the social hierarchy. The original inventor of the word “Harijan” was not Gandhi. It was Narsi Mehta who used it to refer to the children of Devadasis (temple dancers). See T K Oommen, “Panchamas to Dalits: The Context and Content of Identity,” Times of India, New Delhi, 11 May 1994. Lately, the term “Harijans” has been rejected by the Harijans themselves.
# Article 15 (4), emphasis added. For an analysis of other related constitutional provisions, see Vimal Chandra, “Constitutional Safeguards,” Seminar, No. 177, 1974, pp 16-21.
# Explained in detail later
# Government of India, Department of Personnel and Administrative Reforms, Office Memorandum No. 27/2/73-Estt. (S.C.T.), 7 October 1974.
# Government of India, Department of Personnel and Administrative Reforms, Office Memorandum No. 9/2/73-Estt. (S.C.T.), 23 June 1975.
# Triloki Nath v. State of J & K AIR 1967 SC 1283
# Mohan Kumar Singhania v. Union of India AIR 1992 SC 1
# M.R. Balaji v. State of Mysore AIR 1960 SC 649
# R. Chitralekha and Anr. v. State of Mysore and Ors. 1964 (6) SCR 368
# Triloki Nath v. J & K State 1969 (1) SCR 103
# K.C. Vasanth Kumar v. Karnataka 1985 Supp. (1) SCR 352
State of Andhra Pradesh v. P. Sagar 1968 (3) SCR 595
# Peeriakaruppan, etc. v. State of Tamil Nadu 1971 (2) SCR 430
# Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. 1977 (1) SCR 194
# Indira Sawhney and others. Vs. Union of India and Ors. 1992 Supp (3) SCC 212
# Jagdish Negi v. State of U.P AIR 1997 SC 3505
# T.Devadasan v. Union of India AIR 1964 SC 179
# Kerala v. N.M. Thomas AIR 1976 SC 490
# Post Graduate Institute of Medical Education & Research, Chandigarh 1998 (4) SCC 1
# Government’s clarification in the Lok Sabha on 11 March 1997 Times of India, 12 March 1997.
# Government statement in reply to Lok Sabha Unstarred Question No.5379 dated 28 April 1994 by S M L J Basha. See Muslim India, New Delhi, No. 141, September 1994, p 413.
# Nilanjan Mukhopadhyay, “In the Eye of the Storm”, Hindustan Times Sunday Magazine, New Delhi, 25 May 1997. For a summary of the Report, see Indian Council of Social Science Research, Status of Women in India : A Synopsis of the Report of the National Committee on the Status of Women (1971-1974), New Delhi, 1975, reprint 1988.
# Madhu Kishwar, “Not a Gender War”, Hindustan Times, 3 June 1997.
# For two representative views see Brinda Karat, “Gender Justice is Above Caste,” and Bhagwati Devi, “Elite Women Will Benefit”, India Today, 9 June 1997, pp 50-51.
# Andre Beteille, “Is Job Reservation a Good Policy,” Seminar, No. 375, November 1990, pp 41-42.
# India Today, 17 October 1997, pp 68-73.
# Marc Galanter, Law and Society in Modern India, Delhi, OUP, 1989, pp 192-93. See also, Victor S D’Souza, Development Planning and Structural Inequalities : The Response of the Under Privileged, New Delhi, Sage, 1990, pp 196-97.
# See D R Nagaraj, “Correcting Mandal’s Flaws,” Indian Express, New Delhi, 3 June 1995.
# Lelah Dushkin, “Backward Class Benefits and Social Class in India, 1920-1970,” Economic and Political Weekly, 14, 1979, p 666; quoted by Galanter, Competing Equalities, p 550.
# Marc Galanter, op.cit., p 195.
# Ravinder Singh Bains, Reservation Policy and Anti-Reservationists, Delhi, B R Publishing, 1994, pp 178-81.
# Government of India, Ministry of Home Affairs, Annual Report 1996-97, p 6.
# For more on this point see I Z Bhatty, “Implications for Government,” Seminar, No. 375, November 1990, pp 43-47.
# T K Oommen, “Helping the Backwards : Role of State and Market,” Times of India, 18 October 1994. For a different perspective as to how the globalisation is further affecting the depressed classes, see Kancha Ilaiah, “Dalits and Globalisation,” The Hindu, 17 November 1997.
# For an analysis of the Dalit politics, see Rajni Kothari, “Rise of the Dalits and the Renewed Debate on Caste,” in Partha Chatterjee (ed.), State and Politics in India, New Delhi, OUP, 1997, pp 439-58.

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