1. Salient features of 1:1 Basic features 1.1.1. Constitution of U.K., 1.1.2. Constitution of USA, and 1.1:3. Constitution of India 1.

2 Doctrine of Separation of Power under the Constitution of1.2:1 U.K 1.2:2 USA and 1.2:3 India 2. Comparative study on the 20 2.1. Methods of amendment under the Constitution of – 2.1.1. U.K., 2:1 2. USA and 2:1 3. India. 2.2. Composition and jurisdiction of 2.2.1. USA Judicial System 2.2.2. Indian Judicial System 2.3. Provisions of trade, commerce and intercourse under the 2.3.1. Constitution of India and 2.3.2. Constitution of USA 3. Rule of Law 3:1 Meaning 3:2 Exception to the rule of law 3:3 Rule of law under the Constitution of U.K., USA and India 4. Natural Justice 4:1 Principles 4:2 Applicability of natural justice principles under the Constitution of 4.2.1. U.K. 4.2.2. USA and 4.2.3. India 5. Doctrine of Judicial Review in 15 7:1. U.K., 7:2. USA and 7:3. India

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Prescribed Books 1. Dr. D. D. Basu, Comparative Constitutional Law, Wadhwa & Co. Ltd. 2. Vishnoo Bhagwan and Vidya Bhusan, World Constitution 3. Anup Chand Kapoor & K.K. Mishra, Select Constitution, S. Chand &Co. Ltd. CONTENTS

Chapter – I : Introduction 3 1. Equality and Its Bases. 2. Indian Case for Correcting Injustices. 3. Competing Claims. 4. American Paradigm. 5. Scheme of Study.

Chapter- II : Equality Justice and Affirmative Action : 13 Theoretical Considerations. 1. Nature of Equality and Justice. 2. Theories of Equality. 2.1.Liberal Theory of Equality : John Rawls. 2.2.Libertarian Perspective. 2.3.Marxian Radicalism. 2.4.Various Strands of Socialist Thinkers. 3. Common Grounds of Distributive Justice. 4. Affirmative Action Programmes : Jurisprudential Basis 4.1.Merit Argument. 4.2.Rights Argument. 4.3.Efficiency Argument. 4.4.Balkanisation Argument.

Chapter- III :

Indian Panorama of Equality and Justice Ancient and Modern : 36

1. Context of Indian Socio-Political Governance. 2. Varna System : The Classificatory Principle. 3. Deterioration of the Varna System into Rigid Caste System 4. Post Independent India : A New beginning. 4.1.Reservations in Legislative Bodies. 4.2.Reservations in Jobs (Government Services) 4.3.Reservations in Educational Institutions. 4.4.Preferences in Resource Distribution. 4.5.Action Plans and Amelioration Programmes. 5. General Observations. Chapter- IV : Equality and Affirmative Action in U.S.A. 65 1. A Peep in to the History of Slave System. 2. Towards Equality. 3. Death of “Separate but Equal” Doctrine and Protective discrimination. 4. Competing Arguments. Chapter- V : Evaluations and Conclusions. 79 1. Social Pathology : Caste and Race.

2. Benign Discrimination on Provisions. 3. Group Rights vs Individual Rights. 4. Policy vs Rights Approach. 5. Concluding Observations. List of Cases. 91 Bibliography 93 List of Articles from Journals and Periodicals 95

United States: three branches In the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a President of the United States of America." [9] The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of Judicial review in Marbury vs Madison.[10] The federal government refers to the branches as "branches of government", while some systems use "government" to describe the executive. The Executive branch has attempted to claim power arguing for separation of powers to include being the Commander in Chief of a standing army since the Civil war, executive orders, emergency powers and security classifications since WWII, national security, signing statements, and the scope of the unitary executive. Checks and balances To prevent one branch from becoming supreme, protect the "opulent minority" from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts Legislative (Congress)

• • • •

Passes bills; has broad taxing and spending power; controls the federal budget; has power to borrow money on the credit of the United States (may be vetoed by President, but vetoes may be overridden with a two-thirds vote of both houses) Has sole power to declare war. Oversees, investigates, and makes the rules for the government and its officers. Defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution Ratification of treaties signed by the President and gives advice and consent to presidential appointments to the federal judiciary, federal executive departments, and other posts (Senate only)

Has sole power of impeachment (House of Representatives) and trial of impeachments (Senate); can remove federal executive and judicial officers from office for high crimes and misdemeanors

Executive (President)
• • • • • • • • • • •

Has all the Executive Power Is the commander-in-chief of the armed forces Preserves, protects and defends the Constitution. Faithfully executes the laws of the Country. Executes the instructions of Congress. May veto bills passed by Congress (but the veto may be overridden by a twothirds majority of both houses) Executes the spending authorized by Congress. Executes the instructions of Congress when it declares war or makes rules for the military. Declares states of emergency and publishes regulations and executive orders. Makes executive agreements (does not require ratification) and signs treaties (ratification requiring by two-thirds of the Senate) Makes appointments to the federal judiciary, federal executive departments, and other posts with the advice and consent of the Senate. Has power to make temporary appointment during the recess of the Senate Has the power to Grant "Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Judicial (Supreme Court)
• • • • • •

Determines which laws Congress intended to apply to any given case Exercises judicial review, reviewing the constitutionality of laws Determines how Congress meant the law to apply to disputes Determines how a law acts to determine the disposition of prisoners Determines how a law acts to compel testimony and the production of evidence Determines how laws should be interpreted to assure uniform policies in a topdown fashion via the appeals process, but gives discretion in individual cases to low-level judges. (The amount of discretion depends upon the standard of review, determined by the type of case in question.) Federal judges serve for life

e. if not enhance. Bharat shall be a Union of States says Art. Chapter IV of the Constitution of India speaks of Union Judiciary. Courts have an additional function of safeguarding the Constitution by interpreting and applying its provisions and keeping all authorities within the constitutional framework.. And if the government type is ‘federal’. 1 of the Constitution of India. postulates India as a Union of States and consequently. working. and certainly not destroy the basic structure namely federal structure of the Union of India. the existence of the federal structure of governance for this Union of States becomes a basic structure of the Constitution of India. the Judiciary plays the important role of interpreting and applying the law and adjudicating upon controversies between one citizen and another citizen and between a citizen and a state. therefore its structure. In any country. are also fundamental to the working of the government.S. we need to see the condition prevailing in the U. It is also stipulated in the Constitution that India i. In a country with a written Constitution. the basic principles of federalism.JUDICIAL FEDERALISM IN INDIA INTRODUCTION India i. and then in its light analyse the provisions of our Constitution. procedures etc. adopting the test of Prof. The constitution thus. Bharat shall be a Union of States and the territories and such other territories as may be acquired. In this reference.e.” Therefore. therefore. Wheare wherein he says that “any definition of federal government which failed to include the United States would be thereby condemned as unreal. liable to be so interpreted as will protect. . then those federal features must also be reflected in its judicial set-up. Since Judiciary is one of the fundamental organs of the government. All the provisions made in this Constitution are.

(the federal principle) is that the field of government is divided between a general authority and regional authorities which are not subordinate to one another. It is also said that for the in order to be called ‘federal’. one national and other provincial. from here we move towards analyzing as to whether the different provisions of our Constitution have provided for the similar federal characteristics for the judiciary and takes us to enquire whether there exists ‘judicial federalism in India’. When we elaborate upon the essential feature of federalism that the specialists in the field offer. etc. In India. it is important that the power of governance is divided between coordinate and independent authorities. THE CONCEPT OF FEDERALISM ‘Federalism’ is one of those good echo words that evoke a positive response toward many concepts as democracy. Further. indivisible but yet composite federal nation is simultaneously asserted. the existence of a single. It is enough if the federal principle is the predominant principle in the Constitution. progress. in a federation the political authority is territorially divided between two autonomous sets of separate jurisdictions. it is not necessary that the Constitution should adopt the federal principle completely.So. . pluralism and cooperation within and among nations. it is noted that they all seem to contain the following basis points: First. we say that the federal principle is dominant in our Constitution. S. Constitution shows that the principle of organization upon which it is based. Wheare made an important observation that for the existence of a federal principle. In this regard Prof. an examination of the U. Second. constitution. The term has been seen to be applied to many successful combinations of unity with diversity. which both operate directly from the people.

it must be understood that the federal principle is present in all these three organs of the government. This is because if the component units themselves do not follow the mandates of the Constitution. be it executive or legislature). This is because. If therefore. Now when we say that a country has federal features of governance. one at the centre and another at the provincial (State) level.Keeping this framework of ‘federalism’ in mind. Ingredients of Judicial Federalism In a country like India. then there cannot be a successful federal judicial set up since that federal set up will be at some places be disturbed or its working be hampered by the ‘non federal’ government and vice. and where the Constitution contemplates that it shall be ‘Union of States’. If there is no federal government. by creating legislatures at two levels. EVOLVING A TEST FOR JUDICIAL FEDERALISM a. and the by dividing their areas of work by creating different Lists. to prove that there is federalism and that too in the judicial set up. and out of whose practices the federal set up of the government can be proved. If it be not so then in actual practice the principle of federalism will be watered down. then federation has been established in the legislative domain by bringing in division of power first. wherein subjects upon which the different legislatures can exercise their control are fixed. then the entire federal structure would lose its significance or rather would not even qualify to be called as federal in nature. we next move to state that there are three basic organs of governance. One follows the other. if we see in the Indian frame.versa. federal government or federal Constitution and federal judiciary (or for that matters and organ of the government. we in India try to locate . That we say since there has to be coherence between the different organs of the government. Proper itemization ahs been done in the ‘law making’ domain. then first of all it has to be established that there is federalism in the entire governmental set up. Secondly. where there are a number of States. they being: Executive. Legislature and Judiciary. both are corresponding terms.

Independence factor This factor is the most determining factor for the purposes of judging the claim o a judiciary as being federal. and then to see that what amount of efficiency can be maintained by allowing a very deep rooted federal set-up. we try to locate as to what is the need of a federal judicial set. whether ‘federalism’ in judiciary be established by keeping the same parameters to judge the judicial system as we have for analyzing the federal character of the legislature or executive. how should the judiciary be organized in order to achieve the goal of a federal judiciary. d. its organization. then we need to see. There need to be analysed that what is the amount of control the Supreme Court (Union Judiciary) exercises over the High Courts and its subordinate courts (High Courts in the States). if not the same then similar demarcation of power in the judicial arena too. to maintain a proper federal set up. etc. we have a hierarchy of courts at the State level and the Supreme Court at the centre. There also need to be a question that upto what levels of the judicial hierarchy can the ‘federalism’ concept be stretched to and be stressed upon. etc. since there cannot be actually courts that are subordinate to or before another courts.federalism in the Indian Judiciary. how it can be achieved. or whether there are need to be seen some more factors for the purpose. herein we in the ‘control factor’. its working. The subordinacy of courts is itself a term that runs in contradiction with the federal principle.up. and further what is the amount of control that the High Courts can exercise over the courts ‘subordinate’ to it. Control factor Since in India. or even before any other outside agency. is it upto the basic line of demarcation only or it extends also to the lower levels of judicial hierarchy. since there has to be a check and control on that too. we need to see the relationship of these courts between and within themselves. therefore. c. Efficacy factor In this. b. That can be seen by looking at the structure of the judiciary. This is the most highly held concept that has been .

but a question still arises as to whether this feature of superintendence undermines the principle of federalism because federalism connotes the creation of independent units. Superintendence factor Since in India follows a hierarchy of courts. we talk of judicial federalism. e. then this will be a severe stroke towards bringing down the spirit of federalism. since again it might at some time lead to ‘independent’ units gaining more independence than what is required or using the independence that they enjoy towards adverse causes. If there are mechanisms to guide the decisions and judgments of the courts or the mechanism of working of the courts or control over the officers of the courts. and not in reference of the other outside agencies or any other controlling or governing body. this feature leads to at times the courts in the upper hierarchy to exercise some sort of superintendence over the courts placed in the lower order of the hierarchy. To analyse this factor in the Indian reference.recognized since the very idea of justice delivery system has come to existence. The courts at different levels should work independent of the other courts above them in the judicial hierarchy. or there might come in an element of prejudice or bias which would affect the entire concept of federalism by snatching the freedom of the different units of the federation called judiciary. then the courts cannot exercise their discretion to the matters. is the independence within the internal structure. If the different units are superceded by the others. it needs to be highlighted again that since India is ‘Union’ of States. Supremacy versus Superiority factor . otherwise justice cannot be done in a true sense. Since in the project. and therefore to maintain the Union and keep it intact. since it is always felt that there cannot be justice without the justice delivering body being a free and a fair body. f. therefore the independence that is being refereed to here. There might be reasons for the same. can the slogan of ‘no superintendence’ be followed in a very strict sense? It is probably not possible in the strictest of the senses.

This point is further strengthened by the fact that its decisions are regarded as ‘laws’ and carry a mandate with them to be followed by all the other judicial authorities in the country. To prevent the system from withering down to the internal and external forces. whose say is a must to be followed. it can be said that the presence of a supreme authority is a must. then there is one authority above it which can correct the said infirmity. there cannot be materialized the idea of a federation. otherwise it might lead to the disintegration of the entire system. Because. The superiority factor basically refers to one court being more competent to the other and also to the feature that if there is any decision by a court which is not proper. Unless the discrete units maintain a proper coordination among one another. since. How far does this supremacy have a role to play in judging the characteristics of the judiciary and how far can it be allowed in a federal judiciary is a question which can be answered seeing to the facts and circumstances. The superiority factor might at times lead to the dilution of the federalism principle. This can be called as establishing the supremacy of the Supreme Court. keeping the independence of the discrete units intact. This can be said to include features as the appellate provisions.In India the Supreme Court is known as the Apex Court. Coordination factor This feature is that binding force which is must to maintain the ‘union’. but protecting and securing it to keep it as ‘one’. ORGANISATION OF JUDICIARY . but not at the cost of the federation. g. they determine the working of the system. One also needs to see that does the supremacy clause and the superiority clause conflict with each other or are they synonymous. there is needed a mechanism that allows for full independence. This is needed to ensure the flow of the stream of justice. if its working it not controlled to maintain the independence of the component units. To ascribe federal character to the judiciary. etc. one needs to look into the said factors. It will be a body that will act as a binding force.

e. district courts. state courts are generally independent of the federal courts. and some bankruptcy cases. such as crimes and offences against the United States. i. There are separate matters for the jurisdiction of both the state and the federal courts. This being so. Some matters are under the exclusive jurisdiction of the federal courts. prize. Chapter IV of Part V and Chapter V of Part VI speak of Union Judiciary and High Courts in states respectively. There are separate provisions for both which prescribe for their working which means that both derive their powers from the Constitution. which form the functional aspect of the judicial set-up. S. In the federal court structure there are. and at the top of the federal judicial pyramid the Supreme Court.The organization of courts. are not “federally fully separate”. federal. one at the centre and other in the states.up of courts in India with that of the U.. i. Supreme Court has the power to review a decision rendered by the highest court of the state. circuit courts of appeal. and their coordination with each other decide as to whether what type of judiciary it is. or unified or any else. in ascending order. Although the federal and states court systems are linked to the extent that in certain cases the U. copyright. cases to which a state is a party. Also a federal court ordinarily does not interfere e. The two systems however. Both the structural and the functional parts.e.g. shared by both the federal and the state courts. civil cases of admiralty and time jurisdiction. where there exists a complete judicial hierarchy on both the federal and the state levels. In each state another judicial pyramid of state courts culminates with the state supreme court. not only is the federal Supreme Court the highest court of appeal from both the networks but the two systems actually interlock by a degree of concurrent jurisdiction. patent. The Constitution of India provides for two sets of courts. it is starting with the structure only that we can proceed to look further into its working and mechanisms. S. United States Judicial Set-up To compare this set. since. by habeas with the administration of the state law by a state court unless fundamental rights guaranteed by the federal . and cases involving foreign ambassadors. the judiciary is the basic criterion for determining the federal character of the judiciary.

227 spells out the superintendence of the High Courts over the other courts falling in its territorial jurisdiction and Art. 138 spell out the jurisdiction of the Supreme Court. Art. Thus the orderly administration of justice in a state court is not to be interfered with. 225 & 226 are regarding jurisdiction of the High Courts. which spell out the structure. 134A to 136 have provisions for appeal to the Supreme Court. except in rare cases when exceptional circumstances exist. Art. Art.. or when the enforcement of state law appears otherwise repugnant to the Constitution. 32. we shall see to the various provisions of the Indian Constitution. 129 declares the Supreme Court as a court of record. powers and functions for the judiciary in India. Art. 215 makes High Courts also courts of record (similar to Supreme Court). Art. Art. Art. Art. With this backdrop of judiciary present in the U. Chapter V of Part VI has provisions for High Courts in states. Chapter IV of Part V has the provisions for Union Judiciary. laws or treaties of the U. S. 228 provides for the transfer of cases by the High Courts from the courts subordinate to it.Constitution are invaded. the Supreme Court has original jurisdiction in matters of fundamental rights of the citizens under Art. 141 makes any law made by the Supreme Court to be binding on all courts within the territory of India. Art. for which the concept of judicial federalism is said to be true. Art. 139A further gives the power to the Supreme Court to transfer certain pending cases to itself and Art. Art. 124 provides for the establishment of the Supreme Court. Art 130 to 134 & Art. 125 to 128 have provisions regarding the judges of the Supreme Court. . this article being in Part III is itself a fundamental right. 235 provides for High Courts’ control over the courts subordinate to it. 214 & 216 have provisions for the establishment and constitution of High Courts. Art 217 to 224A has provisions regarding judges of the Supreme Court ( some of them being similar to those for the Supreme Court judges). S. 139 confers power upon the Supreme Court to issue certain types of writs.

” Now if the same ‘federalism’ principle is to be applied in reference to judiciary. Seeing the various provisions of the Constitution. or the division can be made by marking off and limiting the powers of both general and regional governments and thus creating new constitutions for all of them. . Applying the principle of federation as given by K. NO JUDICIAL FEDERALISM IN INDIA It has always been said about Indian Judiciary that it is a unified one with the Supreme Court at its apex and he High Courts below it. and then comparing it with that of the Indian system. It is the ultimate appeal in all criminal and civil matters and the final interpreter of the law of the land. When we analyse federalism in judiciary. and thus helps in maintaining a uniformity of law throughout the country. the regional constitutions are to go on as before and that the powers of the regional governments are limited to what is left. It should be demarcation in the fields of working of the federal and provincial/state courts.Based on the above structure of judiciary in India and viewing it in the light of the same in the U.. It is the supreme interpreter of the Constitution and the guardian of people’s fundamental rights. we proceed to examine that whether there exists ‘judicial federalism’ in India or not. S. and then saying that. then the same division of power should also be reflected in the judicial set-up or between the federal and the provincial courts. with this exception. what is required for a federation is that there should be a division of power among the different co-ordinate and independent authorities/component units of a federation. it can be said that the Supreme Court enjoys the top most position in the judicial hierarchy of the country. Wheare for federal governments: “The division can be made either by marking off the powers of the general government and limiting it to them. then it can be said very conveniently. since it seems very apparent then that there exists no judicial federalism in India. Firstly.C.

“Appellate jurisdiction is the jurisdiction of a superior court to review the final judgment. as there is there is no conclusive bar on any suit from reaching the Supreme Court. 141 of the Indian Constitution. in India there is no division of powers between the general and provincial courts.. and only some matters having concurrence between the both. S. dismiss. Since in India. wherein our system fails to fulfill the basic condition required for ‘federalism’. or decree of an inferior court on the record made in the inferior tribunal & to affirm. There courts run in one vertical hierarchy starting from the lower courts and finally terminating in the Supreme Court. the ‘federalism’ principle fades away. . It is Art. where Supreme Court has the exclusive original jurisdiction as laid in Art. reverse. This article enacts that the law declared by the Supreme Court shall be binding on ‘all courts’ in the territory of India. and the article that plays the most determining role towards this. 136. There is no itemization done with regards to their area of working and there seems to be no exclusiveness in their working too. or modify that decision. 131. With this reference. With this article gets attached a value of superiority with the Supreme Court that its say has to be followed as a mandate by all the other courts of the country. The entire system seems to be like ‘one’. Regarding appellate jurisdiction. Constitutional Provisions Starting with the big gun first. S. order. we have seen that both the federal and the state courts have their own respective field of jurisdiction. Comparing with the condition prevalent in the U. since.” the word appellate signifies the superiority of the Supreme Court and the degree of allowance of such appellate jurisdiction also further determined the features of a judiciary. Coming then to the jurisdiction of the court. 132 to 134A & Art.This being so. the Supreme Court has appellate jurisdiction as provided by Art. in this regard. the freedom to cases is such that every case is capable of reaching the Supreme Court. it becomes clear that the situation in India doesn’t match with that of the U.

whereas no such similar provision is kept in favour of the High Courts. i. enlargement of the jurisdiction of the Supreme Court by a law made by the Parliament is provided vide Art. decree or final order.up is seems to be biased towards the one Supreme Court. which is the highest court of the land. This seems to be ascribing unitary characters to the judiciary especially when both High Courts and the Supreme Court have been established by the Constitution. Further. whether civil. 138. any appeal can lie to the Supreme Court from any judgment. This entire constitutional scheme shows that more importance need be given to the Supreme Court. criminal or other proceeding of the High Court if it certifies that the case involves a substantial question of law as to the interpretation of the Constitution. Then.e. This obliterates the principle of federalism as it implicitly makes or shows the Supreme Court as being more competent than the High Courts. Art. 139A of the Constitution to transfer certain cases from the High Courts to itself. 144 which provides that all authorities civil and judicial in the territory of India shall act in the aid of the Supreme Court. . Practices of the Supreme Court Not only the constitutional provisions. power is also conferred on the Supreme Court by Art.The provisions laying appellate jurisdiction of the Supreme Court are too wide and give a large amount of powers to the Supreme Court in matters of appeal. but also the decisions given by the Supreme Court and the practices followed by it show that the judiciary in India is centrally organized and there exists no characteristics of federalism in it. Art. Thus a large amount of power has been conferred on the Supreme Court in constitutional matters. 132(1). both are constitutional courts but the power has been given to only one of them. Any kind of matter can reach to the Supreme Court in appeal via these provisions. And finally. The entire judicial set.

It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals. Excise Commissioner. e. 226 to take recourse under the High Courts. 999 . U. 1 wherein Gajendragadkar. regard itself ‘as the protector and guarantor of fundamental rights’ and should declare that “it cannot. in the words of Patanjali Sastri.g. 32 is accorded more importance. 32 of the Constitution. J. speaking for the Court observed "The powers given by Art. That is why it is natural that this Court should. is itself a fundamental right. 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law. seeing to the original jurisdiction of the court. Also. Mukherjee. State 1 AIR 1963 SC 996. in cases where the needs of justice demand interference by the Supreme Court of the land. Though a similar and a wider provision to protect the fundamental rights has been made vide Art. by granting of special leave.. Thakur Raghuraj Singh (1955). Art. but still the protection given by Art." This was with regard to the appellate jurisdiction of the Supreme Court wherein unrestricted powers have been read for it under Art. P. The article itself is worded in the widest terms possible. J. refuse to entertain applications seeking protection against infringements of such rights( vide Romesh Thappar v.This Court considered the scope and amplitude of plenary power under Art. consistently with the responsibility laid down upon it. 136. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way. J. The significance of this right had been assessed in the case of Prem Chand v. held: “The fundamental right to move this court( Supreme Court) can be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. which provides for the aggrieved parties to invoke the jurisdiction of the Supreme Court in case of breach of fundamental rights. 136 of the Constitution in Durga Shankar Mehta v.

There have been decisions which even disregard the alternative remedy that is present in the case of fundamental rights to a person before coming to the Supreme Court. 32 with that under Art. G. Kochunni v. this court has to play the role of a ‘sentinel on the qui vive’ (vide State of Madras v.of Madras)2. for when once it is proved to the satisfaction of the Supreme Court that by State action the fundamental right of a petitioner under Art. State of U. This same principle was reiterated in the case of Kharak Singh v.5 in which the court held that: “The fact that an act by the state executive or by a state functionary acting under a pretended authority gives rise to an action at common law or even under a statute and that the injured citizen or person may have redress in the ordinary courts is wholly immaterial and irrelevant for considering whether such action is an invasion of a fundamental right. and it must regard it as its solemn duty to protect the said fundamental rights ‘zealously and vigilantly’”. V. 199 4 AIR 1959 SC 725 5 AIR 1963 SC 898 . K. it is not only the right but also the duty of the Supreme Court to afford relief to him by passing appropriate orders in that behalf. 32 could be invoked the appellant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and yet not obtained proper redress. Row)3. In discharging the duties assigned to it. 126 AIR 1952 SC 196. P. 32 has been infringed. State of Madras4 it was held that the right to move the Supreme Court was an absolute right and that the existence of alternative remedies was irrelevant. In the case of K. 226. that they can get their rights enforced in the High Courts.” It was also held in the case of Romesh Thappar v. It is wholly erroneous to assume that before the jurisdiction of the Supreme Court under Art. 2 3 AIR 1950 SC 124. State of Madras that there is no concurrence of jurisdiction under Art.

The Court. 226. which overrides all statutory limitations. since one constitutional court cannot limit the power of another constitutional court. Not only this. Ltd. The Supreme Courts reliance on judgments going back to the 19th century for denying a constitutional remedy is untenable.All the above decisions do not allow the model of a judiciary with federal features to come true. v. and referring to an English decision of 1859. Dunlop (India) Ltd. in a Special Leave Petition8.. These decisions are not regarding the any appellate jurisdiction but the Supreme Court has attempted to control the procedures and practices of the High Courts. reversed the an order of a single judge. AIR 1985 SC 330 . In Titaghpur PaperMills Co. Ltd. held as follows: “It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it. which was to give citizens a quick and efficacious remedy. This approach shows total indifference to the very object of Art. and a decision of the Privy Council in Raleigh Investment Co. the Supreme Court relied on old English decisions.” This principle justifies the High Court in not entertaining a writ petition in a tax matter. confirmed with certain modifications in 6 7 AIR 1983 SC 603 AIR 1947 PC 78 8 Assistant Collector v. even in cases where the interests of the revenue were fully protected by bank guarantee. there have been decisions of the Supreme Court which have tried to usurp the power of the High courts under Art. Such decisions can be blow on the federal characters of any judiciary. as none of these judgments had to take into account a constitutional provision such as Art 226. the remedy provided by that statute only must be availed of. The Supreme Court has also strongly deprecated the practice of the High courts in granting interim relief to the applicants in tax matters. Governor. State of Orissa6. v. the Sales Tax Act was a complete code providing for appeals.General in Council7 to conclude that. 226.

State of Gujarat9 is one wherein the Court said that the Supreme Court has power of judicial superintendence and control overall the Courts and Tribunals functioning in the entire territory of the country. 9 AIR 1991 SC 2179 . the entire set up suffers blows even from one decision of the Supreme Court. The Court did not consider whether the assessee had or had not made out a prima facie case. the interests of the Revenue had been fully safeguarded by ensuring that the assessee furnished a bank guarantee for the full amount in dispute. and therefore cannot be said to have been intended or contemplated by the Constitution framers. What the Court went onto saying regarding the ‘superintendence’ is nowhere reflected in the Constitutional provisions. it has a corresponding duty to protect and safeguard the interest of inferior Courts to ensure the flow of the stream of justice in the Courts without any interference or attack from any quarter. but merely geld that in revenue matters the balance of convenience was always in favour of the State. Such decisions bring down the principle of federalism and tend to ascribe unitary characters to the Indian Judiciary. the writs of prohibition and certiorari have. This judgment has destroyed the valuable power of the High Court to grant interim relief in matters relating to taxation. Tis Hazari Court v. been abrogated. under which a tax demand was stayed. at least in matters relating to taxation. As a result of such decisions.appeal. been virtually. The decision of the Supreme Court in the case of Delhi Judicial Service Association. Also.

who had won the presidency and a decisive legislative majority from John Adams’ Federalists. and Weingast 2004). Ferejohn. Constitution state that the judiciary shall be the guardian of the constitution to ensure that the acts of other branches are in constitutional conformity. Madison in 1803. but he knew that Jefferson could ignore a court order with impunity. Supreme Court Justice John Marshall asserted the Court’s powers of judicial review in the landmark case Marbury v. while not taking the risk of having a court order be ignored by the president. Once in office. Thomas Jefferson’s Democratic-Republicans.S.1 The U. The Democratic-Republicans then repealed the Judiciary Act that had added the federal judgeships. Marshall was astute enough to know that Jefferson and his Congressional majority could not only draft new legislation. (Clinton 1994. the repeal of the Federalists’ Judiciary Act was constitutional. Judiciary Nowhere does the U. the Jeffersonians repealed the legislation creating the judgeships and refused to deliver five of the new judicial commissions that Adams had signed before leaving the White House. Political Fragmentation in Practice 4. the Federalists had passed “midnight” legislation creating several new federal judgeships and other judicial positions.S. he ruled that. Chavez. The irony of this case is that the Court. Madison was profoundly political: recognizing his weak bargaining position. Marbury. composed of Federalist appointees. Knight and Epstein 1996. because their concern was not with the principle of judicial review . while the Supreme Court had the right to review the constitutionality of legislative acts. sued the new government for not delivering the judicial commissions that Adams had authorized. and the other branches of government allowed this statement to stand.4. one of the Federalist appointees whose commission Jefferson blocked. which they assigned to their partisans. Marshall’s ruling on Marbury v. were angry that before leaving office. The Jeffersonians allowed Marshall’s bold statement about the Court’s constitutional prerogatives to stand. was at the time in a strategically weak position and refrained from exercising judicial review against the Jefferson administration. Marshal established the principle and precedent of judicial review by striking down part of a congressional statute.

a few years after the Jackson election. political alignment of the House. 4. and Weingast 2004: 19). no further measures were required.S. As de Figueredo and Tiller (1998) have pointed out. case particularly well.but how it might be used against them. They identify some periods of relatively weak courts on account of legislative-executive cohesion. and respected the constitutional provision that granted judges life tenure during good conduct (Chavez. and an internally heterogeneous majority party governed the legislature itself. attempts by the court to rule against legislation or executive orders would be met with new legislation and possibly worse—attempts to impeach particular justices or assaults on judicial autonomy. Ferejohn. and Weingast (2004) find. in fact. Ferejohn.S. but it also characterizes some other presidential systems.2. Franklin Roosevelt had a sufficiently strong coalition to eventually shift the ideology of the Court. and even more when appointments begin to bring the judiciary in line with the elected branches. freedom of the press. During this period the Court overruled both the legislative and executive branches in defense of individual rights. Different parties controlled the presidency and legislature. and the early New Deal. but these periods tend to be short and rare: a few years after the 1800 election. the Court did not rule unconstitutional acts of the other branches until the Dred Scott decision of 1857 when Congress was deeply divided over slavery and secession. Senate. Marshall’s bold proclamation about judicial review notwithstanding. about six years after the Civil War. Presidential Systems Outside the U. although his more blatant attempt to “pack” the Supreme Court with sympathetic justices failed. that the pattern of judicial activism and quiescence follows predictably from the degree of fragmentation or cohesion in the other branches of government. As long as Marshall recognized the strategic reality that a united executive and legislature could withstand judicial encroachment. When president’s party gained control of both legislative houses . and President makes for weak courts. and on behalf of political dissidents. Courts reduce their activism when faced with unified opposition from the other branches. The argument about the effects of political fragmentation on judicial powers fits the U. Presidents were unable to pack the courts or purge uncooperative justices. Much of the tension between the judiciary and other branches of government occurs when appointees of a previous era confront a new configuration in the political branches (Dahl 1957). When a legislative majority stands ready to work with a president. The heyday of Argentina’s high court was between 1862 and Juan Peron’s presidency in 1946. Chavez.

As a result. and the judiciary declared unconstitutional a number of Alfonsin policies. She argues that although Supreme Court justices nominally were guaranteed independence through lifetime tenure. however. When other political institutions are more fragmented. see also Hale 2000). while providing an account that is consistent in some ways with the fragmentation story spelled out in the text. 10 Helmke (2002). courts have less to worry about in terms of override or reprisal. from the 1930s through the 1980s. and Weingast 2004). by the fragmentation logic. Chavez. important. the membership of the Court was routinely changed with each regime transition. Spiller. judicial activism would be inversely related to the coherence among the political branches. emphasizes a different angle. and Tommasi 2002.between 1946 and 1983. ruling against the outgoing party and in favor of those who were soon to take office. the courts became docile (Iaryczower. as were the courts of Bhutto’s and Zia’s military regimes in Pakistan (Tate 1993). Needless to say. The general point is that fragmentation gives courts a certain measure of independence. The Philippine Supreme Court before Marcos declared martial law in 1972 was regarded as “one of the world’s most independent. we would expect that. Presumably it was precisely because Marcos could not control the other branches of government that he used the military to shut them down and replaced them with his friends and relatives. Not surprisingly. Alfonsin’s party that replaced Peron was considerably weaker on account of its minority status in the Senate. they are free to challenge the government. as a first approximation. But the fluctuation of court activism in tandem with the court’s expectation of the president’s ability to command a legislative majority seems a general pattern (Helmke 2002). but also if those rulings cluster in times when the government’s capacity for overruling the Supreme Court is relatively low. . Marcos’s hand picked court was compliant. the Supreme Court kept a low profile. and prestigious supreme courts” (Tate and Haynie 1993). As a result. justices began to behave strategically. We would want to know not only how seriously those rulings inconvenienced the government. The Mexican jurist Pablo Gonzalez Casanova and comparative judicial scholar Carl Schwarz have both found that the Mexican Supreme Court has a history of finding against the government with some regularity (cited in Larsen 1996. Ferejohn. Menem replaced Alfonsin in 1989 with a far stronger administration because it commanded majorities in both houses of Congress.10 For other presidential systems as well.

But it is also true that the judiciary takes on the government only rarely. As long as governments retain voter trust in their ability to uphold basic rights. To be sure. and even parliamentary systems can choose to adopt organs of judicial review. which found fertile soil in America’s institutional environment. Even there. With legislative and executive functions of government organized hierarchically. the legislative parties in coalition operate according to “treaties” that the courts have little . The effects of institutional coherence on judicial discretion are clearest in Westminster countries where a single majority party typically controls the executive. Sir Edward Coke. why is judicial review not universal among democratic regimes? Our answer has two parts. however.3 Judicial Powers in Old European Democracies Given the broad public appeal of robust political and economic rights. But institutions represent political choices. rather than on the basis of how often they find against the government. and on issues that are of relative minor political significance (Salzberger 1993. the demand for institutional adjustment may remain dormant.4. as we will see in the following sections. Chief Justice of the Court of Common Pleas stated in 1610 that “in some cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void” (Mezey 1983: 689). Salzberger and Fenn (1999) find that UK judges are promoted on the basis of how frequently their opinions are reversed. Institutionally. never became common practice in the UK. This is precisely what we would expect in equilibrium. the Act of Settlement of 1701 that protected judges from being dismissed on grounds other than judicial malpractice introduced a measure of judicial independence. court rulings at odds with the legislative majority can easily be overturned. Kerman and Mahoney (2004) find that share prices increased following the Act because investors were assured that the courts were in a strong position to enforce contracts. Parliamentary countries with proportional electoral rules are more fragmented than Westminster systems in the sense that multiple parties with distinct constituencies and platforms join together to form coalition governments. Shapiro 2002. But this dictum. Chalmers 2000). the fusion of the legislative and executive branches in parliamentary systems removes the possible space between branches for autonomous court action to emerge on its own.

variation in levels of political fragmentation alone is a poor predictor of judicial independence. Israel. especially under conditions of divided government. which we sketch out here but leave in large part to future research. Ferejohn and Pasquino (2003: 250) note that "In all cases the constitutional court has developed a jurisprudence aimed at. Because the legislative and executive branches remain fused. France. the choice of judicial regime seems to reflect a compromise between the American and old European models. In some European countries such as Switzerland. however. Most new constitutions include provisions for judicial review. and Luxembourg. Constitutional Courts in Europe and Beyond In what Bruce Ackerman (1997) calls the “new beginnings” of constitutional democracy in the post World War II era. 4. Our greater concern. Spain and Portugal as well as Canada. and increasingly effective at. Korea. Perhaps the .4. is with the effects of political cohesion or fragmentation on how these courts function in practice. judicial review is explicitly prohibited in the constitution. the case for the political fragmentation hypothesis would seem especially strong. protecting fundamental rights. the courts have little room for maneuver. and post Communist countries in Eastern Europe. Among parliamentary systems. In this section we consider only briefly why some countries have opted for the constitutional court model over the U.S. If the court’s capacity to review legislation were high principally in presidential systems.reason to believe they can overturn without being overruled as long as the coalition government is in power. but within the context of a separate constitutional court that is independent of the regular judicial system and is more circumscribed by the political branches. Italy. South Africa. Belgium." Constitutional courts have not only placed important limits on the ordinary political processes. but they have done it increasingly well. Germany. Clearly this latter is a very different path to constitutional review than the informal ebb and flow of judicial powers that can occur in politically fragmented systems. The possibility of constitutional review exists in Scandinavian countries and the Netherlands but is rarely employed. or older European models. Other countries in Europe and elsewhere adopted constitutional courts during the decades after World War II with the express purpose of protecting political and economic rights: Austria.

11 A large percentage of the “civil liberties cases” in Italy have involved the constitutionality of legislation enacted under Mussolini. Italy and Germany seem to have adopted constitutional courts partially in response to “a deep distaste for the dismal past” (Merryman and Vigoriti 1966) and to guard citizens against the possibility of a political hijacking of the sort that Mussolini and Hitler had been able to pull off (Adams and Barile 1953. which Kelsen regarded as giving the U. freedom from law gives totalitarianism its means to rule arbitrarily (Dyzenhaus 1998: vii). While this means that the court will be multi-partisan if not nonpartisan. however.-style judicial review. 12 For eight years the legislature failed to vote implementing legislation until it became clear that the Christian Democrats (DC) were consolidating their political strength (LaPalombara 1958. This also occurs in Spain. Volcansek 1999). In both countries. The European concept of the constitutional court was developed by the Austrian jurist Has Kelsen after World War I. Supreme Court creeping legislative powers. politicians have created ways of dealing with the supermajority requirement. . Cole says that 1/3 of the first 40 decisions of the Court involved the constitutionality of laws and regulations of Fascist vintage (Cole 1959: 980). Italy (1947) and the Federal Republic of Germany (1949) followed suit. such as the lottizzacione in Italy whereby the principal parties agree to split court appointments among themselves. Anti-Authoritarian Backlash. Stone). it nonetheless remains outside the control of any single party.S. Kelsen’s narrower view of the court’s role in guarding the constitution was potentially a better fit with the European philosophical commitment to sovereign assemblies (Kelsen 1942. Following Austria’s decision to reimplement its constitutional court in 1946.11 As Franz Kafka memorialized in fiction. While Austria and Czechoslovakia adopted constitutional courts in 1920. Kelsen’s ideas did not find broader resonance in Europe until after World War II.12 In both countries a legislative supermajority approves the members of the constitutional court. In Italy it was only after the Socialists and Communists gave up hope for commanding a legislative majority that they stopped dragging their feet on passing enabling legislation. Cole 1959: 967). which ensures a broadly trans-partisan or nonpartisan bench (Cole 1959: 969). Unlike U.popularity of the courts have grown with their demonstrated effectiveness in protecting rights. To be sure. and the governing coalition has less political room for undermining court autonomy.S. when all of the countries that had experienced fascist regimes established constitutional courts (Brzezinski 1993). the legislative opposition was more eager for judicial powers than the ruling coalition.

In Hungary a group of roundtable negotiators created a constitutional court in 1989. there was strong public support for a judicial counterweight to potential collusion by the other branches of government. depending on the nature of the dispute. members were to be appointed by a representative committee of the National Assembly. In the early years the Tribunal’s rulings could be overturned by a two-thirds vote in the legislature. To prevent the incumbent government from dominating the court. With the collapse of authoritarian regimes in those countries. Decisions to adopt constitutional courts in former communist Eastern Europe and in other former authoritarian regimes look broadly similar. In the early years of the new regime the court was active. Following the collapse of the communist regime in the late 1980s.The establishment of constitutional courts in Greece in 1975. Between 1989 and 1994 the Tribunal found unconstitutional 40 of 60 statutes it reviewed (Schwartz 1999: 201-202). A simple legislative majority chooses the Tribunal’s members to nineyear terms it is likely that the Tribunal will sometimes represent the government’s coalition and at other times will represent the coalition of the previous government. but in the 1997 constitution this is no longer stipulated (Rose-Ackerman 2004: 73). and approved by a two-thirds vote by the full legislature (Pogany 1993. To overrule the court the legislature must either draft new legislation or revise the constitution. Majority parties that otherwise might have resisted this impulse might well have felt vulnerable to electoral backlash. This would suggest a wave-like pattern in court activism. Rose-Ackerman 2004: 76). striking down laws even before the first legislature began to sit. . Spain in 1978. The legislature did not reappoint many of the first justices when their terms expired in 1998 and the new court has been more conservative about using natural law to decide cases where the constitution is ambiguous (Rose-Ackerman 2004: 80). the Polish legislature established a new tribunal with substantially stronger powers of judicial review including the authority to issue “generally binding interpretations of statutes” (Brzezinski 1993: 186). and Portugal in 1982 followed a similar pattern to that of Italy and Germany. five months before the first legislative elections under the new post-communist regime. It may be that the consolidation of coalition governments reduced the government’s ability to organized legislative majorities to overturn bills.

but also by outgoing governments who feel newly insecure. as Yang notes. and later established one that would be easier for the president to manage. In the early 1990s the ruling party considered a constitutional amendment to curtail the jurisdiction of the court but backed down in the face of strong public objections. two years after declaring that a bill of rights would be inconsistent with the political tradition of the Afrikaaner. Korea adopted a constitutional court on the European model along with democratic reforms. the court’s 19 members would be chosen by the president and approved by the Federation Council where the president has greater bargaining leverage (Remington 2002). the court was self restrained in dealing with politically charged cases (Yang 1993). The 1994 constitution following the abolition of apartheid included strong provisions for judicial review (Hirschl 2000). given that all nine justices are appointed by the President. a broad coalition supported judicial authority to protect political rights: not only the many whose rights had been infringed in the past. Still the court’s room for maneuver made the government uncomfortable. In Korea. But the South African case shows that judicial powers may be strengthened not only at the instigation of newly empowered majorities. In 1988. Instead of being elected by the Dumas. though three of the nine must be from among nominees submitted by the National Assembly and three from among nominees submitted by the Chief Justice of the Supreme Court (West and Yoon 1992). following massive anti-government protests that ended decades of autocratic rule. Strong presidents have subsequently kept the court from functioning with much vigor.In Russia. Yeltsin shut down the constitutional court in 1993 that parliament had established two years earlier. . the minister of justice commissioned a study group on human rights. As the apartheid regime in South Africa collapsed. but the executive branch overpowered any attempts of the judiciary to exercise its constitutionally stated prerogatives. There was widespread skepticism about the independence this court would exhibit. particularly as parties began alternating in power and the composition of the court became harder for the incumbent government to control. three constitutions between 1948 and 1987 paid lip service to judicial review. but also the outgoing whites who wanted ensure themselves a soft political landing. The court seems to have understood its strategic location: it held unconstitutional fourteen of the 37 pieces of legislation it reviewed between 1988 and 1991 but. In 1986. A more representative group of judges eventually replaced the white male judges that sat on the first constitutional court (Sarkin 1999).

the constitutional role of courts was strengthened at the instigation of political actors who were. Charles de Gaulle left office in 1969 and in the hands of weaker administrations the provision for constitutional review took new shape. . Since all four were usually members of the governing coalition. but the Gaullists in the early years of the 5th Republic controlled all three branches. de Gaulle’s opinion was that “Three things count in constitutional matters. only the President. First. space opened for the court to act with some autonomy. This amendment has increased the court’s scope for action. for which he reserved the greatest disdain (cited in Beardsley 1975: 212). the higher interest of the country…and of that I alone am judge. or the President of the Senate could refer a law to the court (Deener 1952). Passed by the requisite 3/5 legislative supermajority. the court struck down a government bill that restricted freedom of political association (Morton 1988). The President. as we will discuss later. and legalism. in what is sometimes known as France’s Marbury v. Canada. the Prime Minister. More important was a 1974 amendment of Article 61 of the constitution. Prior to that. and has experimented periodically with its constitutional design to adjust mix.The Non-Authoritarian Cases: The Legislative Politics of Minority Protection. The 5th Republic under Charles de Gaulle was meant to correct the problems of weak governments in the hands of unstable legislative majorities.” The other two constitutional matters for de Gaulle were political circumstances that had to be taken into account. Of judicial review. Assembly. The only way to invoke the Conseil’s review powers was to appeal either to the president or to majority leaders of the parliament. Once the Gaullists’ legislative majority narrowed. the President of the Assembly. In 1971. and Israel. they were unlikely to submit one of their own laws for review. the amendment extended the constitutional court’s authority to rule on the constitutionality of a law upon petition by any sixty members of the National Assembly or Senate. their interests more closely matched those of the public whose interest in constitutional protections may routinely be higher than those of the ruling government. Post-revolution France has oscillated between the attractions of legislative sovereignty and strong executive power. initiated by a government that saw the time was coming when it would be out of government. or expected soon to be. and Senate each select three of the 9 members of the court for 9 year terms. such as France. out of government and therefore for whom the political insulation from courts was no longer of value. Madison. As part of the minority. In some countries.

The Socialists. Upon appeal from parties on the right on behalf of share holder constituents. and others) established judicial review in Israel in 1992 after they had collectively lost legislative seat share in successive elections to religious and minority parties. which combines presidentialism and parliamentarism. Hofnung 1996). It was the conservatives’ turn in the early 1980s when Mitterand’s government began trying to nationalize industries (Morton 1988). . The parties representing secular voters formed a coalition to establish a strong judicial oversight body that would protect their constituents’ political and economic rights from encroachment by a shifting parliamentary majority (Hirschl 2000.S. the precursor to the Labor party representing secular middle class voters. who had opposed the amendment. by appealing its legislation to the Conseil. we would expect only extraordinary levels of parliamentary coherence to have an effect on constitutional court behavior. representing Orthodox religious residents of development towns and poor urban neighborhoods.5 Consequences: Judicial Politics in Constitutional Court Systems What have constitutional courts done in practice. making it the third largest party in the Knesset after Labor and Likud (Hirschl 2000: 109). The current French constitution. Meretz. type? Constitutional courts themselves vary in their scope not only by their enabling provisions but also inversely by the coherence of the political branch(es). and how does their authority differ from that of supreme courts of the U. the court’s ruling added 28% to the government’s cost of nationalization by requiring fuller compensation to the previous private owners than the government had intended (Stone 1992). Given super majority rules that are typical for appointing members of constitutional courts and for changing constitutions. the Liberal Party’s section of Likud. however. The situation was much changed from 1949. when the Mapai. increased its seat share from 4 Knesset seats in 1984 to 10 in 1996 and to 17 in 1999. Legislative minorities have made ample use of the amendment of 1974 that allows any group of 61 legislators to invite the court to review legislation. gives the court room for maneuver when the president does not control an extraordinarily large parliamentary coalition. The Shas party alone. 4. regularly used the petition provision to oppose the d’Estaing’s government. was an unchallenged ruling party and had no reason to delegate authority to the judiciary.Israel’s secular parties (Labor.

and it is not clear how much weight should be assigned to each of these tools. Second. We can identify various aspects of this concept – the ease with which a government can respond to a court ruling. however. and variation among.Even for coherent coalition governments. is to rely on surrogate measures. we can examine court reactions to governmental attempts at nationalization. and then identify conditions under which these actions should be more likely to occur. rather than directly measuring independence by taking account of. Furthermore. courts may have additional scope for action when the court’s preferences are closer than the government’s to those of the voting public’s. one of the difficulties in grappling with the concept of judicial independence lies in measuring independence. forthcoming) notes that the German government is more likely to alter legislation in anticipation of a possible negative ruling of the constitutional court when its position is less popular and when the process is transparent. 5. First. and considered some anecdotal evidence to check these claims. What scholars can do. its constitutive factors. we can examine how often the court overturns the actions of the government. In an argument similar to Susanne Lohmann’s about how public opinion can increase the effective independence of the central bank. we can look for a measure that reflects the behavior we would expect to find for different levels of independence. for example. Measuring Independence Empirically The previous section provided a typological sketch of the workings of. Vanberg (2001. . and the set of alternatives the government has for responding to this ruling – but identifying these aspects does not directly provide a measure that we could use in tests of independence. the various tools that governments can use in response to a court decision tend to exist in different combinations in different political systems. We consider each in turn. different types of judicial system. That is. and somehow adding up. As we noted earlier. Two potential measures strike us as appropriate and useful. In this section we think about how propositions of the sort we have advanced might be tested empirically with greater rigor in future research.

. All impose some costs on courts. we might expect to find that the court never rules against the government.5. Segal (1997) found almost no evidence of judicial actors in the U. Bergara. And one indication that a court is behaving independently is that it is willing to overrule the government’s actions. we would expect to see fewer instances of the court behaving independently. scholars can examine how often constitutional courts. In one of the most comprehensive statistical examinations of this phenomenon. Rich case studies by Epstein and Knight (1998) reach a similar conclusion. as we have already noted. More specifically. or at least courts with constitutional powers (in countries that do not have separate constitutional courts). in equilibrium. rule that laws passed by the government are unconstitutional. one way to compare levels of independence across political systems is to see how often the court overturns government actions. Courts will anticipate government reprisals. Eskridge 1991. Both of these types of actions play an important role in establishing independence: to the extent that the government maintains dominance over the personnel on the court or can easily override its actions. and Spiller (2003). as does an earlier statistical study by Spiller and Gely (1992). While this is a valid criticism. studies of strategic anticipation have produced mixed results thus far – the jury is still out. the tools that government against the courts can use differ in severity. Spiller and Tiller 1996).g. a potential downside to such a measure.S. but some impose greater costs than others. it will not take actions that invite such reprisals. 13 Furthermore.1 Overturning the actions of government Political systems vary in the extent to which government can override judicial decisions and the ease with which governments can change the court’s personnel. First. do find evidence that under certain conditions judicial actors do behave strategically by anticipating future overrides. two additional factors need to be taken into account. On the other hand.13 More importantly. Consequently. and to the extent that the court knows that the government will respond to and perhaps even push the court. . examining the same data. numerous studies demonstrate that Congress does respond to judicial decisions (e. Put differently. There is. so to speak. Richman. of course. modifying their behavior in anticipation of future congressional actions.

however. because the legislature and the president will perfectly anticipate each other’s preferences and actions. and so on. Gates 1992). or uncertainty about reactions.” in which he establishes that the Supreme Court rarely remains out of step with the other branches for very long. while providing other insights in the veto process. or on the president’s preferences – can trigger vetoes. The seminal paper in this area is Robert Dahl’s (1957) “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker. is more costly that being overturned. Most recently. In much the same way. and we explore these conditions below. also predicts that. He then shows how introducing uncertainty – over the location of the legislator who will be pivotal in overriding the veto. uncertainty about the likelihood of reprisal can lead the court to underestimate that costs that it might face if it takes actions that oppose the government. Funston 1975. see Epstein. Courts will then weigh the costs they might face against the potential benefits of reaching a policy outcome that they prefer. in the likelihood of being punished for actions that it takes. then. court actions overturning the government can serve as a useful measure of judicial independence. for example. mainly because these other branches have the power to appoint members to the Court. A long line of research has examined this question. it would not have acted. Knight. we would expect it to be more likely to challenge the government. Probably the best example of this can be found in Cameron’s (2000) masterful examination of presidential vetoes in the U. committees never introduce bills. and that the costs would exceed the benefits. for example. Cameron begins his analysis with a perfect information model that. the court has a mistaken notion of the government’s preferences.S.S. the court is making a mistake – had it known that the government would respond. in equilibrium. For now we just establish that because of this possibility. in particular. Second. focuses on the specific question of whether the Supreme Court is a partner with the elected branches of government or rather serves a counter-majoritarian function.Being fired.g.. They argue that the Supreme Court is in step with other political . At the same time. and smaller in countries where the courts have a great deal of independence. are more likely to occur under some conditions than others. If. or if it underestimates the likelihood of government reprisals. and related to the first point. The ratio of these costs to these benefits is likely to be larger in political systems where the court has less independence. In effect. vetoes will never occur. sometimes supporting Dahl and sometimes reaching the opposite conclusion (e. Mistakes. and Martin (2001) for how strategic behavior provides an alternative explanation for Dahl’s conclusion. Spatial models that operate under the assumption of complete information typically predict that the action being investigated will never occur – agencies never take actions that invite legislative reprisal. it is possible that the court will make “mistakes” in assessing these costs and benefits and. these models also can provide insights into the conditions under which the action in question might occur.14 14 A significant literature in the U.

strike down these actions.5. if it chooses. courts are also called upon to rule on other actions that the government takes.2 Nationalizations In addition to ruling on the constitutionality of laws passed by the government. Again. or party.3 Elections and Independence We have noted that to the extent that political actors all perfectly anticipate each other’s actions. courts may take such actions because the consider that the benefits of doing so or because they have made mistakes in interpreting the preferences of other political actors. actors not because of replacement. How courts have responded to governments’ nationalization schemes would be one such line of investigation. to identify the conditions under which these mistakes are most likely to occur. then. or even outlook from the government – and to the extent that these judges are independent – we would expect that courts would be more likely to overturn these sorts of actions. . We think a fruitful line of empirical inquiry would be to see how well our expectations comport with how aggressive or quiescent courts were in protecting minority rights. but rather because Supreme Court justices make decisions strategically to ensure that they are not out of step. We turn next to an examination of when such mistakes will be likely to occur. as Dahl suggested. Our knowledge of government coherence and institutional rules of court recomposition provide us with ex ante expectations of how much autonomy courts should have vis-à-vis the government. It would seem useful. 5. we should not expect to see any court decisions that run counter to the government’s preferences. Particularly when the judges on the court are of different ideology. The court can. But we also argued that the court might make mistakes. One example of this occurs when the government nationalizes segments of the economy.

Any election. the absence of judicial findings against the government could mean either that the court had restrained itself rather than to invite legislative . accustomed to dealing with the previous political officeholders. Perhaps the highest levels of this sort of uncertainty occur right after an election. and how do we know it when we see it? We have sketched out an argument for why judicial autonomy ought to relate inversely to the level of coherence in the political branch(es) of government. or when a shift occurs from divided to unified control of government. when an election brings new partners into a coalition. and may also be uncertain about how far the new politicians will turn in order to punish the court. will be less certain about the exact preferences of the new politicians. or will not tolerate.Most obviously. can increase uncertainty about preferences. with a left party being replace by one on the right. when new political actors take office. courts are most likely to make mistakes when they are uncertain about the preferences of other governmental actors. there will be a period where the court is trying to figure out exactly what the government will. This can occur when a new party takes over in a single-majority system. 6. of course. relative to the level of coherence needed to overturn the court’s rulings. how does it arise. Conclusions This essay has not attempted a comprehensive survey of the vast literatures on the nexus between politics and law. we should expect to find more instances of courts overturning governmental laws or ruling against nationalizations right after elections. the courts will be uncertain about the potential costs that they will face. The court. it is harder than one might suppose to gauge judicial independence empirically because. In any of these cases. Hence. there may be little conflict that erupts in public view. But courts are more likely to be uncertain when an election leads to a major shift in party control of government. if courts and legislatures anticipate the other’s response in their own actions. Without knowing the ideological position of the court or of the political coalition trying to hold judicial interference at bay. In other words. but has primarily focused instead on the narrower subject of judicial independence: what is it. And this uncertainty is likely to lead to more judicial actions that challenge the government. or vice versa. Though this seems simple enough.

In fact. etc.override. or for that matter. competitive elections are likely to be more fundamental than the trappings of “independent” courts for rule of law and minority protection in developing countries. to look for episodes of failed self-restraint. why do majorities in parliamentary systems without constitutional courts so often restrain themselves from infringing on the rights of minorities? We are inclined to think that electoral competition. and the role these have in determining the federal characters of judiciary . Given the importance to judicial autonomy insufficient legislative coherence for possible overrides. But why do some systems without particularly fragmented political systems establish constitutional courts. such as following new elections. which has explicitly incorporated consultation between the court and government with the result that laws include the anticipated reactions even before they are promulgated. Perhaps the most burning issue we have left on the table is what accounts for the national variation we observe in provisions for constitutional review in the first place. if the actors have perfect information about the other’s preferences and if they behaved strategically. We have left many questions unanswered.. Even in France. Stone Sweet (1992) tells of conflicts between the constitutional council and the government in periods when members appointed by the previous government dominated the court. the regulation of these factors. JUDGES: Their appointment. Political fragmentation seems to go far in explaining the correlation between divided governments and judicial autonomy. is a common underpinning in the judicial politics of all democracies. Although strategic anticipation certainly complicates empirical analysis. transfer. We might also expect that courts and governments might have relatively poorer information about the other’s likely behavior following elections. dismissal. we nevertheless think it would be useful to take advantage of ideologically polarized or low information situations. or that the legislature had incorporated the court’s position in its laws rather than to invite a negative judicial ruling. and the fear that majority coalitions have of losing support at the margins. we ought never to see legislative overrides and negative judicial rulings. One is reminded of the French constitutional court.

In the case of judiciary. But. and dismissal of the judges. O. Transfer of the judges of the High Court. which is understood as a ‘safeguarding’ organ of the Constitution. AIR 1955 SC 549 AIR 1994 SC 268 . But this has been done keeping the sanctity of the structure called judiciary intact i. 222 have been given an interpretation 15 16 Ram Jawaya Kapur v. there has to be check on its procedures too. 222 which enables the President of India to transfer a judge of the High Court. The provision for this can be seen in Art. if we refer to some of the provisions of the Constitution and the interpretation of the courts of them. Gupta v. Some of the decisions of the Supreme Courts which have prompted to the raising of such questions are being discussed below.The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity15. which show the control of the judiciary itself in the above said matters.e. P. If we see it in the light of the provisions of the Constitution regarding the recruitment. might at some time raise presumptions questioning the federal characters of the judiciary. then at places there have been works assigned to the Executive and the Legislature in this regard. U. transfer. This motive behind this was so that the different organs can keep a check on each other. State of Punjab. the words “after consultation with the Chief Justice of India” occurring in Art.16 (Second Case) rendered by the Supreme Court. Herein. after the judgment of S. We contemplate that it is in the light of the federal structure of the Constitution of India that the various provisions of the Constitution are to be read and if necessary interpreted and therefore we expect the same for Art. nowhere the outside control is allowed to go beyond the say of the judiciary itself. It essential also to prevent one organ from being so independent so as to decide its all organization and functions by itself and be immune of any outside control. 222 of the Indian Constitution. I.

it is not only at the level of the Supreme Court and the High Courts. The primacy given to the High Courts in the same is not as per the norms of a true federation. the Supreme Court held that the appointment of the District Judges on the recommendation of a Select Committee consisting of two High Court Judges and Judicial Secretary. and their first posting. This is because. the Supreme Court held that the appointment to the posts of district judges. It is this very practice that dilutes the principle of federalism. and not in consultation with the High Courts as a whole. but to the other courts placed high in the judicial hierarchy. The terminology itself is vague as it raises presumptions of the judiciary being a ‘subordinate’ body. and besides the very high interpretation of such power of the High Courts by the courts questions the federal character. Though what it contemplates is not subordination to any second agency outside the judicial envelope. 235 of the Constitution. The decisions of the Supreme Court can further elaborate the same point. This can be done only by providing the similar autonomy to the ‘subordinate’ courts too. Regarding the appointment of the judges of the ‘subordinate’ courts. P. With deepest respect. are to be made by the 17 AIR 1966 SC 1987 . if federalism has to be brought in the judicial set up. It is also against the independence of the High Courts and seeks to make High Courts subordinate to the Supreme Court of India. Subordination of the ‘Subordinate Judiciary’ to what extent? In India. the Constitution itself employs words as ‘subordinate courts’. was unconstitutional. and hence also the federal structure of the Indian Judiciary. it is submitted that this interpretation militates against the federal structure of the Constitution. but it has to be made sure that the federalism principle is deep rooted till the lowest level of courts that is created.17. then.that the President may only after the consent of the Chief Justice of India transfer a judge from one High Court to another High Court. This has been done in Art. State of U. the position is all the more worse. In the case of Chandra Mohan v. and by creating two sets of judiciary at two different levels. the central and the States. Next.

and that the Consultation of the High Court is madatory. FEDERALISM IN THE INDIAN JUDICIARY The federal feature is the dominant feature of the Indian Constitution. Rajasthan. and that the opinion of the High Court should be given full weight by the Governor.19 However. In relation to restricting the power of the High Court in relation to Art. and the power to promote persons from one post in the subordinate judiciary to another. in this regard the Law Commission. and the power to confirm such promotions22 vest in the High Court and not the State Government. Also there have been decisions showing that the High Court is the sole custodian of the control over the judiciary. 18 19 Prem Nath v. 309. AIR 1967 SC 903 22 Assam v. including district judges. it was held once that the consultation with the High Courts is only for making the rules and not for actual selection of appointees. 20 Also the power to transfer subordinate judges. Mohan Singh. AIR 1968 SC 1426 20 Punjab & Haryana High Court v. AIR 1972 SC 1028 . AIR 1776 SC 1599 Farzaad v. The organs are identified as being Legislature. Haryana.18 It was also ruled that the consultation with the High Court has to be meaningful and purposive. Ranga Mohammad.Governor in consultation of the High Court. To say that we have a federal government means impliedly that the federal features are present in the organs of the government too. hamper the federal character of the Indian Judiciary. from one place to another21. AIR 1975 SC 613 21 Assam v. These decisions do not confirm to the federal principles and therefore. Executive and the Judiciary. has suggested that the Article be suitably amended so as to provide that the persons appointed to the subordinate judiciary may be persons recommended by the High court. Sen. And this is reflected in the features of the Constitution also. An enquiry into the conduct of a member of the judiciary can be held by the High Court alone and no other authority.

The procedure provided for that purpose is the same as that provided for impeaching the judge of the Supreme Court. look into the technicalities and the procedures of the courts at the central and the state levels and then finally ascribe any feature to it. the above feature has be true then. Interpreting the provisions of the Constitution Various articles of the Constitution should be read in full colour and the object behind should be seen before deriving any conclusion on their basis. 218 of the Constitution. Form these provisions it is clear that it was never the intention of the framers of the Indian . etc. it can be concluded that there is no judicial federalism in India? We need to read the provisions of the Constitution with a holistic approach and not with a narrow outlook. therefore. 144. which point to the fact that the High Courts are no inferior courts to the Supreme Court. But no such power is conferred in relation to Union of India with the Supreme Court. 141. and due to a few anti decisions of the Supreme Court. But can a mere superficial reading of the provisions of the Constitution. Because if we do so. What is envisaged by the Constitution is a federal structure in the Union of States where the union shall have high Court as its highest judicial authority with power of superintendence over its subordinate courts within the States. By reading the articles 139A. Reference can be made to Art. it cannot be said that the High Courts are subordinate to the Supreme Court.When talked in reference of the judiciary. But as seen in the previous chapter that certain provisions of the Constitution do not allow for a federal judicial set-up and even if the provisions of the Constitution allow. then the practices of the Supreme Court have been such that the principle of federalism seems to be watering down. without going into the actual requirements of the same. it will be against the basic structure of the Constitution of India. There are other Articles too. The reason obviously is to protect the autonomy or the independence of the State High Courts. be it then federal or unitary or any other. which provides for the impeachment of the High Court judge.

32. provisions analogous to Art. or in cases where it is made to appear that the parties claim title under grants from different States. prejudices. there is a practice in the U. etc. e. 226 whereas the Supreme Court can hear only matters relating to fundamental rights in Art. 226 clearly provides that notwithstanding anything in Art. If Art. 32 every High Court shall.Constitution to make High Courts subordinate to the Supreme Court of India or else. S. Art. the Constitution makes both the High Courts as well the Supreme Court competent courts for the purposes of fundamental rights. where in certain circumstances. rather. 139A is also called to make the Supreme Court more powerful than the High Courts and also tending to encroach upon the freedom of the High Courts. he High Courts have more powers since it is competent to hear matters in relation to all types of legal rights in Art. 227 giving disciplinary or supervisory authority to the Supreme Court of India over the High Courts would certainly have been made in the Constitution itself. 144 are ‘in aid of the Supreme Court’ and not ‘under the Supreme Court’. But in this relation. Therefore. sentiments. if it is felt at times that local feeling. The similar practice has been adopted in India when cases involving substantially the same question of law are pending in the Supreme Court and . Art. The qualifications for appointment of the judge of the Supreme Court are not different than those prescribed for appointment as a judge of the Supreme Court. cases from the State Courts are transferred to the Federal Courts. A perusal of Articles 32 and 226 also brings out the facts that the High Court is not in any manner subordinate to the Supreme Court and in fact is vested with more powers than the Supreme Court by the Constitution itself.g. have the power to issue the writs for enforcement of the fundamental rights and for any other purposes. too. 138 and Art. whereas the provisions of Art. or prepossessions may preclude a free trail in a State Court. 227 then it has to be mentioned here that the words used in Art. 144 is referred in this regard as being one analogous to Art. 139 require a law made by the Parliament to enlarge or confer the jurisdiction under the Supreme Court of India.

The position was made clear in the case of Tilokchand Motichand v. besides the States’ being independent is that the different States (component units of the federation) work in coordination with each other. U. AIR 1963 SC 1241. Gupta v. but that it is an attempt for the unification of the entire system to prevent it from disintegrating and also to prevent the coming into force of multiple and conflicting decisions on the same subject matter. The States being independent units. of one State would not have been recognised by another. without such a provision the acts. It provides for the ‘full faith and credit’ clause. President of India & others. Kharak Singh v. State of Madras. I. The Supreme Court now declines to interfere except in a few ‘public interest’ cases telling the applicant to move the concerned High Court. Had this been not the practice. AIR 1982 SC 149 K. Art. H. 25 AIR 1970 SC 898 . AIR 1963 SC 898. P. Practices of the courts Though it had been asserted in some earlier decisions of the Supreme Court that the right to move the Supreme Court was an absolute right and that the existence of alternative remedies was irrelevant24. records. etc. State of U. But this clause provides that a judgment rendered by a competent court of one State is conclusive on the merits in another State and that it will receive the same credit as the judgments of that other State itself. O. but there has been a sea change since then.23 This practice does not mean that there is no federalism principle in our Constitution. or when the cases involve substantial questions of general importance. Without this clause the ‘judgments of one State’ would have been regarded as ‘foreign judgments’ in every other State. The same practice has also been seen to apply if the applicant has an alternative remedy that he can exhaust before coming to the Supreme Court. B. S.one or more High Courts. P. K. AIR 1959 SC 725.. 261 of the Constitution favours this. Munshi25 where it was held: 23 24 West Bengal v. it would have resulted in contradiction and confusion.. etc. or that it is wholly based on unitary principles. and would lead to the same law interpreted and applied in one manner in one State and another manner in another State. Kochunni v. One another condition that is required for the a federal structure.

an application under Art. on the same grounds. accordingly. 27 The 26 27 AIR 1961 SC 1457 Syedna Tahir v. if the appeal is not competent under Art. this court insists on bringing its decision before this court for review. This forms an essential requirement for the purpose of bringing an appeal under Art.26. 226. Similarly. This constitutes a comity between the Supreme Court and the High Courts. These show that the High Courts are just not any courts. and a sufficient importance has been given to the High Courts.132. The motivating factor is the existence of another parallel jurisdiction in another court and that court having been moved. this court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. this court has refrained from taking action when a better remedy is to move the High Court under Art.” The principle of res judicata has also started to be followed in India. though it is said that every case is capable of reaching the Supreme Court to hear its verdict in the matter involved.“The Court refrains from acting under Art. 32 if the party has already moved the High Court under Art. would not lie. Another restraint which this court puts on itself is that it does not allow a fresh ground to be taken in appeal. 32. 226 which can go into the controversy more comprehensively than this court under Art. In the same way. 226. For an appeal to lie under Art. Also in cases of appellate jurisdiction. the Supreme Court will not hear it even if the High Court has granted a necessary certificate. when a party had already moved the High Court with a similar complaint and for the same relief and failed. but there are sufficient bars created in this regard. it is essential that the High Court should provide the necessary certificate for the same and the matter must necessarily involve a substantial question of law as to the interpretation of the Constitution. wherein it was held that when a High Court has dismissed an application under Art. AIR 1958 SC 253. the principle of res judicata operates and that. which provides that when a court of competent jurisdiction renders a final judgment on the merits. 255 . 132. P. on the merits. 32. Bombay. that judgment is conclusive of the of the causes of action and of the facts and issues litigated in it in the same or other judicial tribunals of concurrent jurisdiction. The issue of res judicata was decided in the case of Daryao v. 132. Also. and such dismissal is not set aside on appeal. U.

then the question involved in the case. Sundara Money.28 This practice not only highlights High Courts’ importance in the issue but also puts the point that High Courts are equally competent courts in settling matters. Position as we had seen in the matter of transfer of judges. should also be of such pervasive import and deep significance that in the High Court’s judgment it imperatively needs to be settled at the national level by the highest court. but then again there have been instances where the Supreme Court has delivered judgements trying to keep up the principle of federalism. otherwise the court will be flooded with cases of lesser magnitude. and at some times the Supreme Court has to be called in to keep the entire system intact.Supreme Court has emphasized that for grant of the certificate. A close study of the system shows that federalism is tried to be maintained and protected at every stage. howsoever important and substantial. seemed to obliterate the federalism principle. the question. A declaration that the High Courts are inferior courts would amount to the viewing of the whole system with a lenient perspective leaving less importance to the High Courts. Judges: Provisions and Practices which decide the federal characters. one cannot disregard the sufficient safeguards created to keep the federal structure intact. that the position of the chief Justice of India was made very strong. AIR 1976 SC 111 AIR 1999 SC 1 . which are also Constitutional Courts and to whom special recognition has been given by none other than the Constitution itself. N. Thus. the general importance associated with the case needs to be given vitality. than resorting to hasty criticism of the whole structure or misunderstanding the idea or the concept which had been materialized so meticulously by the Constitution framers. If in certain matters it is to be liquidated. This can be seen to be done in the case of In Re: Under Article 143(1) of the Constitution of India29 where it was held that if the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the 28 29 State Bank of India v. by looking into the remote possibility that a case will be decided by the Supreme Court.

CONCLUSIONS AND SUGGESTIONS In the light of the above discussion we can conclude that since India is a federation. the High Court. procedures.view that the recommendee is unsuitable for stated reasons. then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible. has to be consulted. Also making a reference to the power of the legislature to make laws regarding the recruitment and conditions of service of persons appointed to public services and posts. the High Court. 233 while enacting a law regarding the above said. This case limits the power of the Chief Justice to an extent. this power of the legislature can be seen as a tool restricting the power of the High Courts to. 335 has to be given its full play while enacting such a scheme of reservation. its practices. Bal Mukund Shah31. which are accepted by the President.in which a question arose regarding the scheme of reservation to be made for the appointment of the members of the Subordinate Judiciary. etc. i. it is felt that the federal set up faces 30 31 AIR 1952 SC 69 AIR 2000 SC 1296 . It is not because of this but also since we can locate the federal characteristics of the judiciary in its organization. if not much. This shows the legitimacy of the power of the legislature for the purposes of the Subordinate Judiciary. It was therefore held that once Art. In the case if State of Bombay v. but can be seen as an effort towards the same. Though it cannot be said to strengthen the federalism principle to much extent. then atleast to some extent. Narottamdas Jethabhai30 the power of the provincial legislature to decide upon the jurisdiction of the City Court was upheld. These decisions somewhere maintain the federal characteristics by not allowing the entire control of the Subordinate Judiciary to yield to one single body.e. There it was held that the State Legislature cannot up set the mandate of Art. Though at some places. therefore. 235. Also in the case of State of Bihar v. there exists a federal judicial set up as well. entrusted with the full control of the Subordinate Judiciary as per Art.

Though the term ‘federal’ or ‘ferderalism’ is no where in our Constitution. or some of the constitutional provisions. and being done either by faulty organization. To do so to meet the exigencies of situations on some occasions will not be decisive of the final trait of any set up.severe set backs. As the Constitution does not emphasize on a strict separation of powers. the Constitution framers chose to retain the strong ‘national’ character. government even upto the grass roots is contemplated. then for the management of such a government. there is needed to be adopted an approach tolerative enough for incorporating some another features of some other type of judiciary or justice delivery system. For this the courts should deliver decisions in the backdrop of the theme of our Constitution. They should be coherent with the Constitutional provisions as well. By keeping the federal characters. in India aim for a democratic society. it allows percolation. or for that matters in the American Constitution as well. It has also to be understood that on certain occasions the compliance with the federal principle might bring in undesirable results or something that is not at all contemplated. depending upon the location of the decisive authority and the dynamics of relationship between the Centre and the States. there judiciary has also to be organized on similar lines. wherein. Though the structure is such that at certain places. then too it would not have made a vital difference because federalism has several manifestations. That we say after looking into the limitations of our . We. therefore in the same line we can say that the Constitution does not cannot enforce strictly for the federalism principles as well. then on such instances. or might hamper the justice delivery mechanism. or due to wrong interpretation of the provisions of the Constitution.interpretation of the Constitution. Herein we emphasize on the adoption of the federal features because this suits to the needs of our country. Had the term also been used. but that does not seem to be capable enough to allow the attempt towards the concept of ‘judicial federalism’ to dismantle by certain wrong decisions and some mis.

The classical theories of separation of powers. as it is a notion of many shades and connotations and has been viewed by Philosophers from many different angles. This would also prevent our structure either from disintegrating or yielding to the unitary forces. The expression “Equality” is incapable of a single definition.II Equality. as of overriding importanceequality before law. It does not set forth propositions. equality of basic human rights. a grey area of constitutional governance which requires a thoughtful deliberation. what sort of realignment would be preferable and efficient. Nature of Equality. But while there are some that argue that an egalitarian distribution is inimical to freedom and development there are some that insist on precisely the opposite. economic equality or equality of consideration for all persons or equality of opportunity. what is the trend and how do we catalyse the movement towards the desirable goals.32 There are those who while being indifferent to or even dismissive of one aspect of equality are deeply committed to another aspect of it.country. an appraisal of the existing federalist package operating in India. particularly in the context of the constitutional provisions and looks at the prospects for the future. federation. what have we learnt form our experience. They need to be modified according to the conditions prevailing in each different place. therefore. Justice and Affirmative Action : Theoritical considerations. viz. and seeing to the varying and growing needs of time. its features. This is. what kind of federalism do we have and how does it respond to the basic realities and pressures and pulls of contemporary polity. There is a variety of ways to express the idea of equality and different writers tend to emphasize some forms of equality. 1.33 . and thus in order to avoid friction there needs to be adopted a federal approach keeping the federal structure intact. etc. that an egalitarian distribution is a necessary prerequisite to any meaningful freedom and development. rather others. This paper is therefore. do our Constitutional conventions and practices detract form this model or go in its favour. Therefore. but seeks to initiate a debate. CHAPTER. cannot be adopted as they are. For example most schools of thought in fact cater to the view that complete equality would be difficult to come by. all this needs to be given a thought.

such as utility. of individual circumstances. 3 and another. at a wider level one may legitimately be concerned with the notion of equality involving not just wealth and power. The claim that men are equal is a claim that in fundamental respects. though not in all. and in a statement of political principles. It is in moral judgements to the effect that equality is a good.34 According to Bernard Williams. 78 Ethics 10. But at the level of societal arrangements. S. that it ought in some cases to exist. All of these refer to what we might call equality. Justice and Equality. He argued that the best state for human nature is that in which while no one is poor. all men deserve to be given certain kinds of treatment.. In a “ Companion to Contemporary Political Philosophy” Edited by Robert Goodin and Philip Petit. Nor have most philosophers wanted an equality which is total. 33 Pulin B Nayak. work. “the idea of Equality is used both in a statement of fact or what purport to be a statement of fact. However Walzer (1973) has emphasized.no one desires to be rich. (1967). Economists usually focus on the notion of equality of income. Blackwell. wealth or some measure of individual well being. he never intended to convey the idea that it should suppress varieties of individual character and genius. It is a paradox that the more anxiously a society endeavours to secure equality of consideration for all its members the greater will be the differentiation of treatment. Bernard Williams.It is no doubt frequently asserted that all men are born equal. “On Equality and Distributive Justice” Economic and Political Weekly. Mill realized the importance of encouraging the widest possible diversities of mind and taste. education and free time37. They have a right to certain kinds of equal treatment in crucial aspects of their lives. J. but honour. It is in this later sense that the notion of equality belongs to the sphere of values. Although he urged that social policy be directed to suppress to increasing equality. or inequality. 34 Dallmayer. but there is no unanimity as regards the common attributes which makes them equal. and that this is so in spite of the obvious ways in which men are unequal in strength. or aims that men should be equal.35 as at present they are not. 35 The Idea of Equality.36 Indeed there are few words that admit of such wide meanings and interpretations as that of equality. Annual Number March 1991. talent and intellect. there are important notions of . regardless of obvious differences between one man 32 Alexis De Toqueville said that men have greater passions than for liberty. Oxford 1995. But it is only in a society marked by large measure of economic equality that such varieties were likely to find their expression and due need of appreciation.that men are equal. Functionalism.

He. in so far as it has that merit. cannot of themselves solve practical moral problems. No man he asserts. page-147-148. has a right to anything unconditionally except the right to be equally considered. that every human being is of equal intrinsic value and is.38 He takes it to be self-evident. New Delhi 1993. points out that the principle does not require that every person be given an equal share of wealth or of political power but rather equal consideration in the distribution of ultimate good. admits of no equivalent. 37 Complex Equality. What is implied by the principle of equal respect for all persons is impartiality in the treatment of all men. arbitrary inequality.39 This meaning of of equality was clearly identified by Immanuel Kant in “Fundamentals of Principles of the Metaphysics of Morals”. The Theory of Good and Evil. and that is the case with every human being. whatever. however.equality of opportunity. Blackwell. has a dignity. he agrees. But as a person. provided it is really the same thing that is implied in the assertion that it has value. on the other hand. therefore. Such axioms. equality before law and equality of treatment. Oxford. commodities that satisfy human wants and needs have a market value. 39 Ibid. no human being can . and. The rights of man are all ultimately resolvable into the one supreme and unconditional right –the right to consideration. Edited by Upendra Baxi. But some things in the world cannot be measured on any scale of values. One may be better cook than another or a better student or legislator. is above all value. when he distinguished the possession of value from the possession of dignity. But as men they do not have relative merit. inequality not justified by the requirements of social well being. a good legislator by one at least equal in talent for legislation. it rules out inequality. Whatever has a value can be replaced by something else which is equivalent in value. Oxford University Press. 1995 38 Rashdall Hastings. A good cook may be replaced by a better cook. to say that what is recognized as being of value in one person must be recognized as being of same value in another. to name a few of the commonly examined concepts. in “A companion to Contemporary Political Philosophy” edited by Robert Goodin and Philip Petit. So. entitled to equal respects as an exact expression of the Christian ideal of brotherhood. and in the restricted sphere of conduct we may and often must appraise their relative merit. even in the absence of need. 223-224. Rashdall advances the principle. for what has 36 Democracy. 4 relative merit may. They are invaluable. therefore. be replaced by another like entity with equal or greater merit. What appeals to human taste. (1907) Vol I. Equality and Freedom. may be said to have emotional or imaginative value. priceless. or rather. or some other general and rational principle in the treatment of individuals. By Michael Walzer. to be an analytical judgment. They are purely formal but they do offer guidelines on how to distribute the good once its nature is known.

Equality means. Right to equal concern and respect is the most fundamental right of all the rights.40 Analysing Rawls’ theory of Justice. All barriers of birth.42 These inequalities and privileges persists even in our own times. as such. He goes on to say that “ Rawls’ most basic assumption is not that men have a right to certain liberties that Locke or Mill thought important. and follows from the moral personality that disntinguishes humans from animals. first of all. it is a quality intrinsic to his being. op cit f. The idea of equality has. refers to the conditions created in society by a limited number of privileged people. It means that I am entitled to the enjoyment of all those social and political privileges to which others are entitled. Dworkin reaches the same conclusion. a common man’s protest against the gross inequalities created by the superior claims of the nobility in ancient societies. rank. “the Idea of Equality” in “A Companion of contemporary Political Philosophy. that “justice as fariness rests on the assumption of a natural right of all men and women to equality of concern and respect. This very thought is expressed in the now commonplace remark that the dignity of every human being must be respected. creed and colour should be removed so that no one suffers from any kind of social or political disability. What entitles him to a place in this sphere is simply his having human dignity. the principle of equality was originally. AO. but the intrinsic worthiness or every human being. It permits arguments that this more basic right requires one or another of these conceptions as a derivative right or goal. Inequality. talents. no difference between man and man and whatever rights inhere in another by virtue of his being a citizen must inhere and to the same extent in me as well.n. My vote in the election of the representatives is as 40 See Bernard Williams. property or beliefs.possibly be replaced by another. . skills. but that they have a right to equal respect and concern in the design of political institutions. in short. Thus human beings already possessed this right when they agreed on the two principles of justice enunciated by Rawls. This right according to Rawls is owed to human beings as moral persons. a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice. caste. Thus according to Dworkin. who have always dominated the State and used its power for their own purpose. This right is more abstract than the standard conceptions of equality that distinguish different political theories . without regard to his intelligence.6. wealth. that special privileges of all kinds should be abolished.43 This class of vested interests makes the fulfilment of their private desires the criterion of the public good. There should be.41 Looking at the concept of Equality from a common man’s point of view. He who affirms the principle of human dignity in this sense respects equality. sex. therefore grown out of the idea of privileges. Dignity here connotes not pride or manner.

42 A. I live in am atmosphere of contingent frustration. there is nothing like a liberal theory of Equality. 1997. I can also become the recipient of any office of the State for which I may be eligible. since liberalism has been a very amorphous concept. be guaranteed to others and that whatever rights are given to others shall also be given to me. Kapoor. shall also in the same measure. dynamic and changeable. representing a system of ideas. implying almost a compelling passion for liberty. liberals. libertarians. Also see Taking Rights Seriously by Ronald Dworkin. The principles of equality. The chief characteristic of a right is its equalitarian basis. He accepts his place in society. in the form of rights. economics religion and cultural life. let’s have a look at their viewpoints about equality. in terms of justice to all individuals and groups. that aim at the realisation of pluralists society and diversity in politics. though they will have different perspectives in their conceptions of justice. 1991. 1984. S Chand and Company. 1. But before we talk of the common conclusions and common concerns amongst philosophers of various hues. because. One who lives in an atmosphere of frustration has neither any inspiration in life nor any incentive for it. New Delhi. 1.41 Reservation Crisis in India. There can be no equality in a society where a few are masters and rest are slaves. Bar Council of India Trust. means that whatever conditions are guaranteed to me. New Delhi. which accident of birth has given him. Harvard University Press.44 To refuse any man access to authority is a complete denial of his freedom. In this section we shall have a brief look as to how various political ideologies theorise the concept of equality to show that though the thinkers of all hues look at it from different perspectives.1 Liberal Theory of Equality : John Rawls. We shall cover. It is this element of justice that leads to the adoption of policies on affirmative action programmes. Demands of justice compels the state system to resort to the protective discrimination kind of policies and that precisely forms the jurisprudential basis of benign discrimination. However. 43 Ibid. It is in this way that the faculty of creativeness is lost and men or a class of men become “animate tools” which Aristotle described as the characteristic of the natural slave.C. Theories of Equality. accordingly. Universal Book Traders. He accepts his place in society. unless I enjoy the same access to power as others. 5 valuable and potential as that of any other. Principles of Political Science. it would not be far of the mark to say that John Rawls represents that face of liberalism . but there is surprising unanimity in their line of thinking and almost all of them come to some common conclusions ending up in talking. Fabians and Marxists. Strictly speaking. as a permanent condition of his life.

Though we find an espousal for equality of all in Locke. society must give more attention to those with fewer native assets and those born into the less favourable social positions. He observes. According to him. Rawls calls this “the difference principle”. 45 Oxford University Press. though he concedes that the attempt would face several difficulties.45 Rawls argues that the principles of justice are those that would be chosen by free and rational individuals if they had to choose behind a veil of ignorance as to what position in society. For Rawls basic liberties have priorities over other primary goods and each person is to have an equal right to the most extensive basic liberties compatible with a similar liberties for others. income and wealth. powers. 6 the chances of the least advantaged members of society. opportunities. 1972. and the basis of self respect. the rule would obviously be more egalitarian than the Utilitarian principle.48 The difference principle holds that in order to treat all persons equally. these inequalities are to be somehow compensated for. Having ensured basic liberties. primary goods are the ncessary means.47 He then goes on to propose an index of primary social goods. more fundamental one. “Greater intelligence. A Grammar of Politics. they might themselves occupy.46 Rawls has identified what he had called primary social goods. Rawls makes a persuasive case for a conception of justice that would improve 44 Harold Laski. on the question of bringing about greater equalities. and there is another. Rawls is very clear in his approach that undeserved inequalities call for redress and since inequalities of birth and natural endowment are undeserved. whatever may be one’s system of ends. Mill and Greene. Since the Rawlsian prescription is geared exclusively towards improving the lot of the worst off members of society. Rawls is for ensuring an equitable distribution of primary goods . In other words inequality is only justified if it results in the poor being better off in the social dispensation. maintains Rawls. “A theory of Justice”. Bentham. wealth and opportunity for example. allow a person to achieve ends he could not rationally comtemplate otherwise. The idea is to redress the bias in the direction of equality.which vies for realization of equality of all individuals emphasizing on the care of the least privileged.. “some writers have distinguished between equality as it is invoked in connection with the . Rawls writes. It must be noted that Rawls thinks of primary social goods as embodying one of the two conceptions of equality. however in modern times the most forceful argument has been developed by John Rawls in his seminal work. More specifically. There are things that every rational man is presumed to want including rights and liberties.

But equality of the second kind is fundamental”. Economic and Political Weekly. but in terms of their capacity to create human happiness or to satisfy human desires. John Rawls.” Utilitarianism or more particularly welfarism does not have this fetishism. 47 A Theory of Justice. which is owed to human beings as moral persons. Futher. Oxford University Press.100. Equality of the first kind is defined by the second principle of justice (difference principle) which regulates the structure of organisations and distributive shares so that social cooperation is both efficient and fair. Sen emphasises that the primary goods approach seems to take little note of the diversity of human beings. on the ground that the notion of Primary goods. Indeed the difference principle admits of inequalities to the extent that the well being of the worst off member can be ensured to be maximised. 46 Pulin B Nayak “On Equality and Distributive Justice”. 7 The two conceptions of equality proposed by Rawls together make a case for the elimination of substantial inequalities. Rawls further emphasises that the natural basis of equality explains its deeper significance and it is defined by such natural duties as that of mutual respect. 49 Ibid. “Rawls takes primary goods as the embodiment of advantages. is “Fetishist”. to have an entirely goods oriented framework provides a peculiar way of judging advantages. A corresponding remark can be made about the Rawlsian difference principle. some of which will almost certainly give higher status or prestige to those who are more favoured and equally as it applies to the respect which is owed to persons irrespective of their social position. Amartya Sen in a incisive piece. rather than taking advantages to be a relationship between persons and goods. If people were basically very similar then an index of . March 1991. Even if utility is not thought to be the right focus for the person-goods relationship.51 In the context of assessing utilitarian equality.distribution of certain goods. it was argued that if people were fundamentally similar in terms of utility functions. Annual Number. 1972. since utilities are reflections of one type of relation between persons and goods. Thus utilitarianism could be rendered vastly more attractive if people really were similar. then the utitlitarian concerns with maximising the sum total of utilities would push us simultaneously also in the direction of equality of utility levels. “Equality of what” 50criticises Rawls . For example. income and wealth are not valued under utilitarianism as physical units.P. but they would not lead to elimination of all inequalities. p/511. 49The later is defined by the principle of justice whereby each person is to have an equal right to the most basic liberty compatible with a similar liberty for others. 48 A Theory of Justice.

Milton Friedman. It is one thing to acknowledge that in-equality is a consequences of the natural order.n. I has been well said that biology. Hayek further argues that the boundless variety of human nature. Chicago University Press. climatic conditions. the result must 50 A Companion to Contemporary Political Philosophy. Hayek declares that a demand for equality is the professed motive of most of those who desire to impose upon society a . Routeledge and Kegan Paul. with variability as its cornerstone.Hayek. 53Nozick 54and Letwin55 amongst others. but overlooking very widespread and real differences. temperament and even body size (affecting food and clothing requirements). So what is involved is not merely ignoring a few hard cases. but it is quite another to make a case for non intervention. in his substantial work “the constitution of liberty” emphatically states. We may continue to use this hallowed phrase to express the ideal that legally and morally all men ought to be treated alike. Oxford (1974) 55 Against Equality. that as a statement of fact it is just not true that all men are born equal. this would automatically result in material inequality. location. Libertarian Perspective. the wide range of differences. op cit f. and we can achieve either the one or the other. Its evolution has made it probably the most variable amongst all kinds of creatures. Mc Millan London (1983) 8 be inequality in their actual position. people seem to have very different needs varying with health. (1960) 53 Capitalism and Freeom. but not both at the same time. 51 Ibid. But if we want to understand what this ideal of equality can or should mean. Since equality before the law is regarded as a necessary prerequisite of a free society. London. Libertarian perspective on equality has been articulated in the most forceful manner by F. Judging advantage purely in terms of primary goods leads to partially blind morality. the first requirements is that we free ourselves from the belief in factual equality. All this goes on to suggest that the quest for perfect equality in individual circumstances is bound to prove fruitless. confers on every human individual a unique set of attributes which give him a dignity he could not otherwise possess. in individual capacities and potentialities is one of the most distinctive facts about the human species.56 Therefore the only way to place them in an equal position would be to treat them differently.2. From this he went on to argue that if we treat equally. work conditions. Hayek therefore goes on to conclude that equality before the law and material equality amongst individuals are in necessary conflict with each other.A. But. 52 constitution of Liberty .Nozick. 1. in fact.primary goods might be quite a good way of judging advantage. longevity. who are unequal. F. all individuals.A. 6. (1960) 54 Anarchy State and Utopia by R. Basil Blackwell.Hayek.52 Friedman.

Our objection is against all attempts to impress upon society a deliberately chosen pattern of distribution. Thus any rule imposing equality on pay per hour. 57 Against Equality. or whatever reason. such as Friedman. it is worth noting that libertarians usually take the position that it is undesirable. if a government were to equalise any one material dimension of life. in a regime of uniform pay. Suppose for example government sets out to equalise pay by assuring each worker the same wage rate per hour of work done. The argument is that an equal world is inimical to growth and incentives58. 9 greater disutility. then their hourly wages would be unequal . wealth. whether it be an order of equality or of inequality. And this is not all. opportunity. with . This will not tell us anything about the persons. Suppose that each worker were paid the same annual wage. Progress at such a fast rate cannot proceed on a uniform front but must take place in echelon fashion. 87. such as income.By William Letwin (1983) Mc Millan London. then some would earn more than others per annum.preconceived pattern of distribution. Thus if a government were to ensure equality with respect to some variable then individuals will in fact end up differences with regard to some other variable or variables. it would necessarily and inevitably create inequality in one or more of he other dimensions. individuals would in general. While it is not necessary to over-emphasise the point that complete equality is impossible to achieve. Suppose on the other hand that the government decrees to pay the same amount to each worker annually and if different workers worked different number of hours per year. Hayek writes. This would imply that if workers were allowed freedom to choose the number of hours of work per annum. Nozick and Letwin. year of life would necessarily impose inequality on pay realised during any other interval of time. owing to differences in health. in general entail differences in individual well being. work stoppage. Essentially the same kind of view is held by other libertarians. because of ill health. equal annual pay may even within one lifetime produce remarkable inequality of wealth. Most importantly. If individuals were forced to perform these activities. then this would . savings and investment etc. Further if inheritance is permitted then inequality of wealth and income may considerably intensify over time. consumption. (1960) p. “The rapid economic growth that we have come to expect seems in a large measure to be a result of this inequality and to be impossible without it. or work effort. respond in different ways to perform risky activities than would involve 56 Constitution of Liberty. expenditure. then their lifetime incomes would be unequal. if they worked different number of years during their lives.57 That is. or other objective conditions. Letwin for example argues that any egalitarian policy would necessarily be internally contradictory. With different saving propensities. Further.

or equality of results which would require action by the state to correct free market outcomes. 58 P. he was in fact not even willing to acknowledge this as an ideal worth striving for. 2. Harry Jhonsom ( 1975) has observed. Hayek contends that new things often become available to the greater part of the people only because for some time they have been the luxuries of the few. On Equality and Distributive Justice. But in fact there are no explicit espousals of the notion of equality in Marx’s writings. It does not need to be overstressed that a rich man has a great advantage over a poor man when he is involved in the courts of law. The problem. policy should concentrate on providing equality of opportunity rather than equality of measured income ex post results.42. among other related notions. There is a fundamental presumption here that inequalities must be tolerated if they result from differences of personal effort and merit and not as the result of different opportunities.n. The principle of equality of opportunity ensures that every person has an equal chance to do what he or she wishes and has the capacity for. Since Marx was fundamentally against oppression in any form one would have expected him to argue for an egalitarian world.B. In a similar context. equality of opportunity and equality before the law can only be strictly valid as a slogan. “to be consistent with both the principle of individual freedom and personal responsibility and the requirements of efficient economic organisation. 59 F. 1. Marxian Radicalism. viz. particularly economic equality. It is presumed that each of these notions of equality goes towards enhancing individual freedom. It is for this . 10 It is a matter of considerable interest and importance that Marx was clear in his recognition of the impossibility of ensuring complete equality in individual circumstances. p. Equality before law is equally important and necessary requirement for libertarian thinkers. op cit f.A.Nayak. however is that that in order to ensure any meaningful application of the above two principles. In the writings of both Marx and Engels there are statements to the effect that equality is fundamentally a bourgeois idea.”59 After all. one must ensure a substantial measure of equality in individual circumstance.Hayek. knowledge is a vital part of the process of progress and knowledge and its benefits can spread only gradually and the ambitions of the many will always be determined by what is as yet accessible only to the few. having no place in the statement of working class demands or objectives.3. This is to be contrasted with the notion of equality of outcome. But he was not merely questioning the practicability of this goal of equality. Since one cannot ensure complete equality in individual circumstances one would have to conclude that equality in societal rules.some far ahead of the rest. constitution of Liberty. It may however be noted that the libertarian thinkers such as Hayek and Friedman who had recognised the difficulty of ensuring equality of individual circumstance have invariably at the same time argued for the elimination of moral or political inequality. Most of the relevant discussion of this issue has therefore centred on equality of opportunity and equality before the law.

Labour and Human Needs in a society fo Associated Producers in Tom Bottomore (ed) Interpretation of Marx. According to Marx. 11 to his ability to each according to his needs. Marx goes on to say. and where the proceeds of labour belong undiminished with equal right to all members of society. right instead of being equal would have to be unequal. 61 Karl Marx “Critque of Gotha Programme. another not. 62 Ibid.”61 Thus distribution in the first phase of communism will inevitably be an unequal distribution. and hence an equal share in the social consumption fund. “the right of the producers is proportional to the labour they supply.only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribes on its banners: “from each according 60 Agnes Heller. and will be so precisely because it is a distribution according to equal right. has vanished. one will in fact receive more than another .”63 Marx conceptualises the higher phase of . in selected works by Karl marx and F Engels. Thus. and therewith also the antithesis between mental and physical labour. after the productive forces have also increased with the all round development of the individual and all the springs of cooperative wealth flow more abundantly. after labour has become not only a means of life but life’s prime want. and so on. Oxford 1988. after the enslaving subordination of the individual to the division of labour. Progress Publishers. one will be richer than another. in the first phase of the communist system. Basil Blackwell. or can labour for a longer time. He goes on to say. Moscow 1975. one has more children than another and so on and so forth. Yet because one man is superior to another physically or mentally and so supplies more labour at the same time. one worker is married. this “equal right is an unequal right for inequal labour. “in a higher phase of communist society. Marx presupposes a society wherein “ the instrument of labour are common property and the total labour is cooperatively regulated. the equality consists in the fact that measurement is made with an equal standard labour. Marx does not conceal his preference for the notion of the abolition of all class distinctions as being the more relevant notion as compared to the objective of the elimination of all social and political inequality.reason that Heller (1988) has observed that “Egalitarianism has no bitterer enemy than Marx himself”60. To avoid all these defects. with an equal performance of labour.62 After the first phase of communist society is over the principle of equal right to labour would give place to a system where labour not only becomes a source of livelihood but life’s principal need.

communist society as a world of plenty where each person is allowed to consume as per his needs and contribute to the national cake to the best of his ability or capability. The socialist thinkers though less radical in their approach. 1. They were active and resourceful paphleteers and wrote on all manner of social.64 It may not be possible or even appropriate to touch on the views on equality in diverse strands of socialist writings in view of the relevance of the topic. Human beings are regarded as unique and separate individuals and an environment is provided where each person gives of his best and is allowed to partake of the social cake to the extent of his needs. health and other merit . This has been for them the central issue of public policy and to avoid this was to avoid all issues. Various strands of Socialist thinkers : Fabians and Social Democrats. Thus equality of status is established by doing away with the notion of private ownership of holdings altogether. Marxists have always taken a drastic redistribution for granted. All the means of production are socially owned and the question of distribution in the sense of private appropriation of income or wealth amongst individuals simply does not arise.4. He says that with the abolition of classes in socialist society all social and political inequality arising from them would disappear. It is when the class distinctions are eliminated that social and political inequality arising from them would disappear of itself. he is for abolition of class distinctions. Therefore we shall have a brief look on the views of the Fabians . Thus while Marx was not interested in pursuing the goal of equality in individual circumstance he was at the same time careful to emphasise the importance of equality in the sense of eliminating all class distinctions. It is bit interesting to note that the way the concept of equality has developed and come to be understood in the democratic world today. They shared a common conviction of the necessity of the state to intervene to take charge of the commanding heights of the economy and to actively participate in the provision of education. and social democrats. income differentials are not likely to be great because society will fulfill such social needs as education and health care and the education from the social product. Implicit in this idea is his belief that even though the rewards of the producers are not going to be exactly equal. These were a small groups of intellectuals. Thus it would be seen that while Marx is indifferent to the elimination of all social and political inequality. inheritors of the philosophical traditions of Bentham and Mill. In fact precisely the opposite is the case. According to him even the higher phase of communist society is not a world that is characterised by equality in individual circumstances. which for him is of fundamental importance. political and economic issues. have advocated the redistribution of income and wealth by one device or another. the socialist thinkers and writers of the past century and a half are among the strongest proponents of equality . for these needs grow considerably in comparison with present day society and it grows in proportion as the new society develops.

they could not extricate themselves from allowing the primacy of private ownership of the means of . As such a strong case for social justice was made out by Tawney. 64 P. yet paradoxically. that stood in the way of ensuring equality of opportunity were Britain’s hereditary curse. viz. 6. inhuman working conditions. He emphasised the crucial role of education to make children “capable of freedom and more capable of fulfilling their personal differences”. He believed that it was the individuality in each person that ought to be emphasised and encouraged. and this was the central issue to the hardcore thinking of Fabian and Social democrats.Nayak. “Equality”65 made a forceful presentation of his equalitarian ideology.66 and make them communicate with each other at an equal level. op cit f. His concern was with fundamental equalities before the law. which would be a source of common enlightenment and common enjoyment. By the 1930s they came to accept the necessity of mixed economy. and the source of most of its afflictions. “without regard to the vulgar irrelevancies of class and income”. Socialism for most of these thinkers meant nationalisation. the removal of collectively imposed social and economic inequalities. and the equalisation of opportunities for all to secure certain basic goods and services.n. municipalisation and government regulation of industry. However. The original Fabian thinkers like Webb and Shaw. Tawney made a powerful case for tailoring economic and social organisations to establish institutions to meet common needs. however. wealth and social status.B. particularly as a system that engenders abject poverty. inherited wealth and public goods. They in fact were struck by its spectacular long run growth and saw no reason to doubt that it would continue to reap the benefits of successive rounds of technological innovations. Shaw.Tawney. if not the sole cause of the malaise. R. all shared Marx’s moral outrage at the evils of capitalism. They were all convinced that the institution of private property was the principal. such as education. Tawney lamented that the twin pillars of inequality. and stark inequalities of income. and believed these to be as important as the freedom of speech or the freedom of the press. in his classic work. Offering one of the most perceptive critiques of the British class system.63 Ibid.H. Most of them did not share Marx’s belief that capitalism must inevitably collapse though they were careful to acknowledge that the system is prone to periodic slumps. 12 goods. most of them were not straight enemies of the established order and in fact were uncomfortable with the Marxian language of class war and revolutions. extolled the virtues of individual freedom and competition.

Allen and Unwin. Secondly almost all the thinkers make out a case for ensuring justice. for it would thwart incentives and growth.Schumpeter. Unwin London (1964) 66 Ibid. Marx’s view on equality it turns out.67 2. 65 R. but equality in the sense commonly understood is clearly undesirable for them. so that oppression and exploitation may be eliminated and all social and political inequality arising from them would disappear by itself. but also is part of the natural order of things. but in the final stage of communism he envisaged a world where equality in the sense of distribution of gods or income would cease to have meaning. The rapid economic advance that we have come to expect seems in a large measure to be a result of … the unequal circumstances.Tawney. In the first phase of communism he envisages inequality emerging from the equal right to the labour. Common Grounds of Distributive Justice. In Rawlsian scheme of things the conception of justice ensures that the dispensation is designed in such a way that improves the least .production to continue. The argument is that an equal world is inimical to growth and incentives. Equality. This led Schumpeter to argue that they were the kind of socialists who believed in the productive success of capitalism while they deplored its distributive consequences. They do talk about equality of opportunity and equality before law. He would rather prefer to eliminate the class distinctions. Socialism and Democracy. that he is rather indifferent towards the idea of equality of individual circumstances. Social democrats and the Fabians are in favour of substantial measure of equality but they are not in favour of doing away with basic framework of free market capitalism. 67 J. in the sense of equal distribution of commodities and income. Capitalism.(though as has been noted everybody will have a different conception of justice) and etch out some kind of an arrangements for redistribution of resources. The above discussion brings us into a position where we can draw some conclusions. believing that some form of inequality is not only desirable for the purpose of long term growth. London (1976) 13 and Marxists to social democrats agree on the point that equality of individual circumstances is an impossibility.A. Libertarians on the other hand are clear in their minds that equality in individual circumstances is not even desirable. then they would be acceptable to all. and his difference principle allows maximum advantage to the worst off members of consistent with some inequality still remaining. While Rawls makes a substantial case for reducing inequalities. He concedes that if inequalities benefit everybody by drawing out socially useful talents and energies. First of all it is clear from the above that almost all thinkers from liberals to libertarians.H.

wherein all class distinctions have been 68 Taking Rights Seriously. what is laid down in terms of equality is a twin concept. A system is just if it takes care for the redressal of undeserved inequalities and since inequalities of birth are undeserved these inequalities are somehow to be compensated for. used by dominant class to suppress and exploit the dependant class. Amartya Sen emphasises this aspect in his advocacy of “Basic Capability Equality”. Ronald Dworkin. For Marx. The presupposition is that this ensures justice and enhances individual freedom. Rawls talks of ensuring equality of opportunity. Since State is an instrument. persons respectively hold. Social Democrats are in favour of ensuring a system (A Just one). Through the discovery by each individual of his own and his neighbour’s endowment. Rawls seeks to ensure a scheme of things what Prof Dworkin calls “endowment insensitive and ambition sensitive”68 dispensation. a just system is the one. wherein substantial measure of equality is guaranteed without doing away with the basic framework of market capitalism.70 Under Indian Constitution. while the former ensures equal status to . i. which are individual’s own responsibility. having no place in the statement of working class demands and objectives. The principle of Equality of Opportunity is that every person has an equal chance to do what he wishes and has the capacity to do.H Tawney 69 is in favour of substantial redistribution and in particular public provision for education. equality before law and equal protection of laws. He says that “individual claims are not to be assessed in terms of the resources or primary goods.e. because it ensures. They have centred their discussion on ensuring “Equality of opportunity and equality before law”. but in terms of the freedom they enjoy to choose between different ways of living that they can have reason to value” Public action to improve nutritional intake.advantaged members of society. 1997 14 abolished. for all children to make them capable of freedom and more capable of fulfilling their personal differences and enlargement of personal liberties. In fact Rawlsian justice is geared exclusively towards improving the lot of worst off members of society. Libertarian thinkers like Hayek and Friedman have recognised the difficulty of ensuring equality of individual circumstances. Harvard University Press. the state in the hands of Proletariate shall be the medium to be used against the bourgeois and other reactionary and counter revolutionary forces and affecting a radical redistribution of resources. R. life expectancy and reduce morbidity and infant mortality so as to enhance individuals capabilities has received froceful support in the writings of Amartya Sen. “My aim is to regulate inequalities that affect people’s life chances and not the inequalities that arise from the people’s life choices”. It is not necessarily a system where equality prevails for “Equality” is fundamentally a bourgeois idea. but at the same time they have argued for elimination of moral and political inequality. that fate of the people is determined by their choices and not by their circumstances.

Particular justice. Though the attempt shall be to cover such questions . This idea of equality under Indian Constitution. It is these justifications for affirmative action.everybody. Its central concern is to redress the bias of contingecies in the direction of equality. Either we call such policies as protective discrimination. Affirmative Action Programmes : Jurisprudential Basis. London (1931). The fact that Constitution of India specifically provides for affirmative action programmes in an elaborate manner or that the Supreme Court of United States of America has held “Affirmative action Programmes” Constitutionally sanctioned. Such policies of distributive justice aim at different sectors of society and at the widest possible base. from a prince to a pauper. It has been seen in the introduction that the policies of compensatory discrimination raise a host of questions and arguments. is aimed at achieving substantial equality by classifying the advantaged and disadvantaged and provide the disadvantaged ones with protective discrimination which has been specifically taken up in article 15 and 16. Philosophy and Public affairs. According to him justice is of two types-complete justice and particular justice.Tawney. 70 Justice. In a democratic world it is taken for granted that policies for the redress of severe social and economic disadvantages are in themselves desirable. the later concept. they would all suggest some or the other kind of distributive mechanism to shape the society in the mould of their philosophy. It thus looks beyond equality in purely formal sense. This discussion brings us to the idea of Distributive Justice. benign discrimination or preferential policies.Unwin. Means versus Freedom. they are the 69 “Equality” by R. emphasizes on the protective aspect of equality which has been the prime concern of most of the philosophers we have talked about above. that we now turn to in the next section. has not put paid to the controversies dogging this issue. Justifications for affirmative action lies in the needs either to remove the grossly unjust inequalities in the system or to raise particular sections of the society to the level of human existence and assure them their due dignity. Aristotle himself talked about distributive justice. In fact the idea of distributive justice is not something new. is further subdivided by him into Distributive justice and Corrective Justice. Distributive Justice consists in proper allocation of reward to each person according to his worth and desert. Whatever the differences of opinions amongst the philosophers of various hues. on the conception of justice and equality.H. In fact the issue raises questions of great importance to the legal theory and philosophy and as such are required to be looked into a bit more fully and systematically. thus. 19: 111-21. 15 means for achieving the ideals of distributive justice. Here an attempt shall be be made to look into some of the more important questions and arguments and analyse their theoritical implications. 3.

value. their ability in terms of achievement of certain grades or marks in an objective test-generally a test of intelligence plus knowledge. Vol XVII. in such matters as admission to institutions of higher education or appointment to the state services it will require that the candidates are selected on the basis of their individual merit. i. 1991. in a society suffering from under population due to long term war or any other reason.71 They say that it also satisfies the justice precept of “treat like cases alike and diffferent cases differently” in so far as it provides a criterion of immediate relevance to the good to be distributed. It also assures a strong society and its overall progress in so far as it provides incentive for hard work and the development of superior mental and physical capacities.held for that purpose. Reservation Crisis in India (Ed) V.P. Mishra.Mishra. 3. whether natural or acquired. New Delhi. It is nothing but a criterion to achieve some predetermined social objective or value or to satisfy certain perceived social need. Meritorian Principle dictates that social goods should be allotted on the basis of one’s merit on ability. high grades or percentage of marks in educational examinations may be a merit for teaching assignment because the object is to have intellectually sound persons. or need for achievement or satisfaction. but for a police or defence job . race. however.C. 72 M. however there is no claim on our part that there are no other questions which have important theoritical implications. etc. For example. Supporters of this principle claim that it assures best justice in so far as it allocates the rewards or goods on the basis of an objective criterion having nothing to do with such personal characteristic of an individual as his birth. It appears to be a bit weighty argument but a closer examination reveals its weaknesses.e.C.. What is merit after all ? Merit has no fixed or definite meaning free from variations.Singh. Leaving aside the general intricacies in the application of the principle. Bar Council of India Review. Universal Book Traders. The notion of merit itself is subjective.or controversies rather exhaustively. caste. or need. 16 vary according to the variations in the social objective.1 Merit Argument.72 Thus the merit must 71 See V. sex. but is controlled by them. New Delhi 1990. Production of more than one or two children may. This principle assures the selection of the ablest persons from amongst a large number for the limited goods or opportunities available for distribution. colour. It does not control the objective value. become a demerit in an overpopulated and underdeveloped society. Similarly. production of more children may be a merit and parent may be rewarded for producing more children because the society needs an increased growth of population.

as a matter of regrettable fact. physical strength and not the grades in examinations may be the merit. this is because quick hands will enable him to serve the public better and for no other reason. According to Prof. a warrior class or race in power may say that they need physically strong and well built men in all walks of public life and administration and accordingly all positions will be filled on the basis of physical strength or prowess. One may take an example to illustrate the point in another manner. or the one who does not fall in either of these two categories but has demonstrated immense interest in cricket ? An answer to these questions would depend on what our ultimate objective are. Two general conclusions may be drawn from this discussion.1985. Suppose for example there are three boy claimants for one ticket of a cricket match show. For example. goal. Dworkin. Dworkin does not say that merit is unimportant . First. And if we want to encourage sports. enable another doctor to do a different medical job better. then that black skin is by the same token “merit”as well. For example. On the face of it physical strength appears to be an objective criterion. the second boy must get the ticket. if we want to encourage the effort and potential . the boy with highest marks should get the ticket. but in fact it may result in constant and uniform exclusion of the under nourished and weak. Ronald Dworkin. If we want to encourage talent and effort by rewarding it. 73 Bakke’s Case : Are Quotas Unfair. there is no combination of abilities and skills and traits that constitutes “merit” in the abstract. If a black skin will. or the objective to be achieved. values or needs and is bound to change with the changes in the latter. It is indeed determined in terms of perceived social objectives. since merit is dependent upon the value. To whom out of these the ticket should go on the basis of merit ? To one who has the highest score in the last examination. Harvard University Press.73 Prof . particularly cricket. a society or the dominant group in a society may set such objectives or goals for which the members of that groups are most suitable and thus use the apparently objective looking criterion of merit to exclude other groups from the social good. efficiency in public administration may be an end and to achieve . satisfaction of such needs is the end and merit is simply a means to achieve that end. if quick hands count as “merit” in the case of a prospective surgeon. 17 Secondly. the ticket must go the third boy.where predominantly physically strong men are needed. or the one who has demonstrated exceptional potentiality to obtain better scores in future. in “A Matter of Principle”. the thrust of his argument is that merit itself can be defined in such a way as to make way for particular kinds of persons in view of social demands and necessities. since the merit is determined for serving the perceived social needs or values of the day.

These examples should leave no doubt that merit varies with the social needs. ability. in the second rural or tribal poor background acquires priority over intelligence and becomes merit. a society may find that it does not need as much intelligent and sophisticated doctors. but it wants that everyone must be clad even if the cloth is coarse. And if the society finds that persons with urban or affluent background are not suitable for the job because of their unwillingness to serve the rural and tribal people as well as their attitude towards them. Researches have established that intelligence is mainly determined by heredity-specifically that about 80 percent of variance in IQ scores is genetically determined. over those who have highly sophisticated machinery and technical know-how to produce fine quality cloth beyond the common men’s reach. A society may find that having met the ordinary common needs of the community. it needs highly intelligent and sophisticated doctors. Thus the capacity to produce coarse but cheap cloth becomes a merit as against the capacity to produce high quality cloth. if a question of granting a textile industry license arises.74 This is clear from Jensen’s assertion that something between one half and three fourths of the average IQ difference between American Negroes and whites is attributable to . as it needs the ones who can serve the day to day ordinary needs of the rural and tribal people and may accordingly decide that persons to these courses should not be admitted on the basis of intelligence alone. Prof. talent is also conditioned by environmental factors and their interaction with genetic factors. It depends on a number of factors which one cannot influence in spite of one’s best efforts and lie beyond one’s control. merit. Suppose. Eysenck says that “talent. It changes with the context and is simply a means to achieve certain ends. In addition to genetic factors. engineers or lawyers.that end standards that may ensure such efficiency may be set as merit. One may quote a similar kind of an example. it may decide that persons with rural or tribal or poor background only will be admitted to these courses or that preference will be given to them. To achieve that end it may decide that to these courses persons must be admitted solely on the basis of their intelligence measured through a pre-admission test or on the basis of marks or grades achieved in the previous school examination or both. are largely innate factors. A third point which requires to be noted about merit argument is that what we call merit or talent is not necessarily something which proves the superiority of one individual over another in terms of effort or dilligence. Thus while in the first case intelligence is the merit for becoming a doctor. In such a situation the enterpreneurs who can produce cheap cloth even if it is coarse should have priority. engineers or lawyers to meet the special needs. but also on the basis of their suitability to serve the rural and tribal people. a country is not interested in high class cloth. Conversely. for instance. engineer or lawyer.

Dworkin blasts out the argument. if the social environment is allowed to vary. at least in the competition for any public benefit. But those who argue that merit should be the sole and exclusive criterion should not forget to take into account the factors that constitute it. Every citizen has a constitutional right that he is not made to suffer disadvantages. if he had been younger when he decided to become a doctor. that he would have been accepted if he had been more intelligent or made a better impression in his interview. sex or colour for the purposes of classification of allocation of social goods ? We do not suggest that merit must outrightly be rejected as criterion of social justice. 3. and the remainder to environmental and their interaction with the genetic factors. Such arrangements is prima facie unjust in so far as it ensures perpetual advancement of the former and condemnation of the latter. or. As such if merit depends upon a number of factors beyond one’s control. remarkable differences sometimes occur. because the race or religion or sect or region or other natural or artificial group to which he is a member is the object of prejudice or contempt. If we cannot provide uniform conditions of living and development to all. Commenting on Bakke’s claim that he was denied a seat in a medical school at Davis only because he was white and that he did not chose to be born as white. because another individual is labelled as belonging to a backward group. Prof.”75 Certainly. is it not as much suspect as a race. 1991.2. But it is also true. Universal Book Traders. religion. Even where heredity is the same as in identical twins. we have no reason to prefer the advantaged over the disadvantaged. Finally IQ is also dependent 74 Quoted in V.C. Articulation of the Rights Argument poses some difficulties. 18 upon motivation and motivation to a great extent depends upon social environment with shapes future hopes. he would have been accepted if he were the black. in the case of other schools. caste. expectations and prospects. It is generally argued that affirmative action in favour of one group is discriminatory against others denied of the same benefits and that is itself denial of equality which is the right of every individual as an individual and not as a member of any group and therefore cannot be denied to him simply because he is labelled as a member of an advanced group etc. Mishra’s Reservation Crisis in India. But it is also true that those who score low in aptitude or admissions tests do not choose their levels of intelligence. New Delhi. Rights Argument. he says “ It is true that blacks or jews do not choose to be blacks or jews. And so he concludes that Allan Bakke is being sacrificed because of his race only in a very . and in exactly the same sense.genetic factors.

and consideration of the claims of the members of scheduled castes and scheduled tribes. Universal BookTraders. if one looks at the Constitution of India. in the making of appointments to services and posts. 76 As Quoted in V. Even in the absence of these provisions the concept of group equality should be acceptable to both as a matter of practice as well as of principle. a labour legislation safeguarding the interest of industrial workers does not take into account the non-industrial worker.. members of that group are allowed to compete among themselves.(ii)Weighted individual equality or substantial individual equality and (iii)proportional group equality. In practice. And since within the group also there may be more claimants than the benefits to be distributed. arrangements by way of reservation of quota can be made to equalise the distribution of benefits between groups.e. promotion of the educational and economic interest of the weaker sections of the people. Harvard University Press. since he would have been accepted if he were more clever than he is. In both cases he is being excluded not by prejudice but because of a rational calculation about the socially most beneficial use of limited resources for medical education.C. i. one will find that the concept of group equality in so far as it speaks of special provisions for women and children and for any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. With this view of Gregory Stanton . we see that most legislations.Mishra’s Reservation Crisis in India.artificial sense because of his level of intelligence. particularly in the area of social welfare. 1991. though he may be more in . For example. if a group of people is shown to be under-represented or is systematically unable to compete on a formally equal basis with other groups for a job or educational opportunity or any other highly valued social good.76 While formal individual equality is a synonym of mathmatical equality in the sense that each man is to count for one irrespective of his characteristics and weighted equality contemplates weightage to be given to the individual handicaps. reservations of appointments or posts in favour of any backward class of citizens. Here the principle of equality among equals applies not to individuals but to groups. 19 groups. 1985. New Delhi. By Ronald Dworkin. take into account groups and not the individual. Gregory Stanton takes the view that equality may have three but related concepts (I) Formal individual equality. In view of these express provisions no one can assert that the right to equality is always an individual right. proportional group equality means equality among 75 Bakke’s Case : Are quotas unfair. The individual has been deprived of certain advantages because he belongs to a group and therefore for benefiting the individuals within that group some weightage has to be attached to the entire group. in “A Matter of Principle”.

The moral claims of castes over their individual members have weakened at all levels of society. for good or evil. but in the meantime it can cause enormous harm to society and its institutions. The legislation proceeds on the assumption that the industrial workers as a class or group must be protected from the oppression of a class of employers. 20 grounds can individuals now claim distributive shares for themselves in the name of their caste after having repudiated their moral obligations to it ? He further argues that it is difficult to see how the idea that castes and communities have rights to proportionate shares in public employment can be made compatible with the working of a modern society committed to economic develoment and liberal democracy.need of such safeguards than the former. He argues that at a deeper level the caste system has changed fundamentally. That moral authority has been. and especially in the urban middle class where the battle over benign discrimination is being fought. The continued existence of caste is one thing. But caste is not a material edifice that can be physically dismantled and destroyed.. or the village scavenger had a moral right to claim a share of the social product in the name of caste because each of them was bound by the moral authority of the caste of which he was a member. The persistent use of the language of rights in the public debate for and against reservations is bound to lead to an increase in the consciousness of caste. the village priest or the village barber. but it does not do so any longer as a matter of right. Prof Andre Betielle. It exists above all in the consciousness of peoplein their deep sense of divisions and separation on the one hand and of rank and inequality . Samiksha Publications Bombay. Similarly special treatment to veterans and their children in matters of job or admission to educational institutions is given as members of a group regardless of the disadvantage suffered by individuals. and in that way to defeat the basic objective of affirmative action which is to reduce and not increase caste consciousness. It will be safe to say that no caste today has the moral authority to enforce on its middle class members any of its traditional sanctions.e. such individuals are now able to use it instrumentally for economic and political advantages. in an incisive article on “Distributive Justice and Institutional well being”77 articulates a critique of “group rights” argument. shattered for ever. It is true that caste continues to operate in many spheres of social life. the industrialists. The attempt to invest the caste system with legitimacy by claiming that its constituent unites have rights and entitlements is bound to be defeated in the end. Having freed themselves from the moral authority of their caste. its legitimacy is a different thing altogether. On what 77 Economic and Political Weekly. Special provisions are similarly made on the ground of group characteristics or handicaps. In the traditional order . All parties to the debate say that they wish to dismantle the structure of caste. March 1991. i.

S. courts . if the caste criterion is used for providing protective discrimination the caste divisions are enhanced and identity based on class or caste lines is underlined. They are useful not just to the people to whom they provide employment. and nothing else. more systematic and healthy life. hospitals.ty. This leaves us in a peculiar situation. M. 78 Jurisprudential Basis of Reservations. but for the public at large and the society as a whole. banks. Flexibility is the essence in the design and application of policies to redress disparities that have arisen because of many causes. Institutions of our socio economic life like. laboratories. they are required to be redressed. Where vast disparities either in Indian situations or in U. Singh78 attempts an explanation by saying that certain castes have been consistently excluded for thousands of years from the goods and opportunities which they would have certainly desired simply because they belonged to that caste..Efficiency Argument. For example.on the other. Prof. Indeed the institutions shape harness and channelise the collective energies of a people in their quest . in Bar Council of India Review. “scheduled castes and tribes are descriptive of backwardness. It is true that no classifications based on birth should ordinarily be supported by as the things today certain castes and backwardness are identical. For thousands of years they have been treated as untouchables and denied the right of association with other members of the socie. The entry of a less meritorious shall naturally affect the efficiency of the institutional system. Further on the other hand if caste identities are overlooked in public employment and for admission in educational institutions of higher learning . New Delhi. It is implicit in the idea of benign discriminations that a less meritorious person is preferred to another who is more meritorious. The solution appears to be lying somewhere in between-.A.3. The individual’s right to equality in this situation is given due recognition in so far as the members of the group can compete among themselves for the limited goods available for distribution or allocation.P. are the vehicles which negotiate the arduous path of the community towards a better. They have suffered all kinds of indignities and disabilities not as individuals but as membes of a group or caste and that entitles them to special treatment as members of a group without violence to the right of equality of the nonmembers. How can we exorcise caste from public mind by deepening the sense in society that castes are entitled to their separate shares as a matter of right. they are deprived off an opportunity to overcome their disabilities caused due to exploitation and deprivations of hundreds of years. posts and telegraph etc.Vol XVII.the golden mean. universities. 21 3. 1990.

By Marc Galanter. we tend to undermine the efficiency of the public institutions. And as it is said. more capability than those who have lived under affluent .M. we would be doing unimaginable harm to the generations to come. If for the purpose of redressing grievances of the past. 1989. 1967.80 “the translation of lower academic accomplishment into inefficiency in the administration is difficult to trace. if not more. from their birth. 80 Law and Society in Modern India.for a better tomorrow. prevention of discrimination or eradication of stark social injustices. That was the demonstrable perception of the constitution makers of the Indian reality and social needs which have not yet materially changed. According to Marc Galanter. It is not clear how well academic performance correlates with administrative talent. Institutions do not spring up all of a sudden. consistently with the efficiency of administration in the making of appointments to services and posts in connection with the affairs of the union or the state. The social utility of public institutions has to be judged not just by the criterion of employment but a whole range of criteria among which employment cannot be the most important. Nor is it clear that differences in the level of such talents are directly reflected in efficiency or inefficiency of administration… …. their trials and travails and acquiring the shape useful for the social organism. The Framing of Indian constitution. pressing needs as efficiency. “The very orientation of our selection process is distroted and those like the candidates from the scheduled castes and scheduled tribes who.”81 In the words of Justice Krishna Aiyar of Indian Supreme Court. yet its importance has to be compared with and ultimately set against the significance of such other values as integration. in one sense.79 It is therefore argued that the efficiency of public institutions is of paramount importance Though efficiency of public institutions is undoubtedly an important value insofar as it assures greater production and better services. Bombay. accumulating experiences of generations. 22 remediable lack of polish and experience rather than lack of native ability. the lower scores of beneficiaries may reflect a 79 See B. in part.In part the higher scores of others may reflect cultural disadvantages which are irrelevant to the business in hand. Oxford University Press. they also took care of the efficiency of public institutions and laid down a rider providing that the claims of members of the scheduled castes and scheduled tribes shall be taken into consideration. the connection between the existing test for entry into the services and the efficiency of administration has not been empirically established.III N.. Even if we assume the paramountcy or primacy of efficiency. Vol. “Rome was not built in a day” .Tripathi.Shiva Rao. Through that exercise we might find that for us integration and rectification of socially harmful deprivations and injustices are as. have a traumatic understanding of agrestic India have. they take generations and centuries in their evolution passing through ups and downs. It was probably for this reason that when the framers of Indian Constitution provided for benign discrimination.

the argument that benign discrimination tends to divide the people revives the history of tragedies of partition. will speedily quicken the development needs of the country and a sincere dedication and intellectual integrity… . 3. 83 Ronald Dworkin. The communal virus which started with Ramsay Mc Donald award culminated in the partition of the subcontinent and generation of issues which remain unresolved to this day.4. Even the history of the benign discrimination has not been a smooth one. That turns the whole concept of benign discrimination into a political tool. from the standards of the Indian people. which are already acute in Indian socio-political system.Singh. It has been noted above that benign discrimination underlines class and caste differences and enhances the social divisions. 81 Ibid.. A similar kind of an argument has been made in United States of America. Demands of Christians and Muslims for reservations.83 In India due to the history of partition and resulting massacre of around one million people. Bakke’s Case : Are quotas Unfair. 1985. though subdued at the moment. And now the forwards too are demanding reservations. in “A Matter of Principle”.P. Harvard or Standford or similar Indian Institutions are the major components of merit or suitability. Cambridge. in His Jurisprudential Basis of Reservations. All this leads to an acute kind of anxiety about the integrity of the country. Sensitised heart and a vibrant head. The extension of reservations first for the Scheduled Castes and scheduled tribes and then to Other Backward Classses.”82 The thrust of the whole argument is that the concept of efficiency should be related to our developmental needs and irrelevance or inadequacy of the existing test system to determine efficiency should be exposed. careers or opportunities. . Elitists. each entitled as a group to some proportionate share of resources. seeking to perpetuate the power of paternalistic Government.circumstances and are callous to the human lot of the sorrowing masses. Mass Harvard University Press. least suitable to run government and least meritorious to handle state business.not degrees of Oxford or Cambridge. . if we envision a service state in which the millions are the consumers…. whose sympathies with the masses have dried up are.n. that affirmative programmes are aimed to achieve a racially conscious society divided into racial and ethnic groups. tuned to the tears of the people. which would rather dole out. (OBC) has already caused so much of heartburn and has led to ample amount of recriminations.. reservations sops and divide the people than encourage people to stand on their own feet and compete in a world of excellence. Balkanisation Argument. 82 Quoted by Prof M. op cit f. have started being made. 47.

and no other feature of personality or allegiance or ambition will so thoroughly influence how they will be perceived and treated by others. Dworkin. could be accepted with no sense of racial barriers and injustice. The Affirmative Action Programmes in the form of State advantages. This argument perfectly fits in Indian situation as well. Their argument is that failure at the implementation front should not be the reason to discard the policy itself. The second is calculation of a strategy: that increasing the number of blacks who are at work in the professions will . more elaborate. At that future point the consequences of nonracial admissions programmes. and the range and character of the lives that will be open to them. The tiny number of black doctors and other professionals is both a consequence and a continuing cause of American racial consciousness. this is the inevitable and evident consequence of a history of slavery. Black men and women. “American society is currently a racially conscious society.others will characterise them. in the long run reduce the sense of frustration and injustice and racial self consciousness in the black community to the point at which blacks may begin to think of themselves as individuals who can succeed like others through talent and initiative. But their long term goal is to reduce the degree to which American society is overall a racially conscious society. which sustain and transcend the constitutional text and policy. He dispels the fear that affirmative action programme are designed to produce balkanised America. repression and prejudice. boys and girls. the benign discrimination policies in America rests on two judgments. divided into racial and ethnic sub nations.”84 According to Prof. Affirmative action programmes use racially explicit creiteria because immediate goal is to increase the number of members of certain races in these professions. varied and . here in India. Prof.23 The proponents of benign discriminations respond to this type of argument by terming it as a displaced argument trying to discredit the affirmative action programme. are not free to choose for themselves in what roles or as members of which social group. The first is a judgement of social theory: that the United States will continue to be pervaded by racial divisions mainly the prerogative of members of the white race. whatever these consequences might be. but their ultimate goal is to lessen and not to increase the importance of race in American social and professional life. one link is a long and self fueling chain reaction. while others feel themselves systematically excluded from a professional and social elite. Dworkin writes. whose moral and philosophical justifications leave little room for doubt. They are black. They use strong measures to uplift the weaker and deprived or else they will fail. Prof Dworkin has sought to articulate the response to the Balkanisation argument in American context.

be ensured that a fortunate few do not monopolize its benefits for ever. . op cit.III Indian Panorama of Equality and Justice : Ancient and Modern. constitutionalism and even modernisation could not not have much impact on it. in a society where there exists forward and backward. however.specific as they are. It is due to this that we say that the roots of the present lie deeply buried in our past history. Employment and particularly the government employment promote social and economic advancement and provisions relating to protective discrimination precisely aim at achieving this goal. 24 to an equal cultural plane. 52. f. they change and so changes the life of a nation. Under Indian Constitution. legal institutions. have been designed to end the serfdom of a whole section of the population in which it has fallen due to socio-religious and politico-economic reasons. The first step in this process is to bring the lower and backward social groups to the level of forward or higher social group. Times are not static. Socio-political order of any system in particular is dynamic.n. It must. However economic advancement naturally accompany the social and educational advancement. higher and lower social groups. economic development . Social mores and ideals change from time to time in the backdrop of emerging social crises which create new problems and alter the complexion of the old ones. political awareness. A constant endeavour has to be made that the theoretical justifications are matched by effective implementation. XXXXXXXXXXXX 25 CHAPTER . the Indian social system boiled down to caste structured system which has taken such deep roots that the education. Beginning with the Varna Vyavastha. live and organic and changes introduced from within or outside initiate a chain reaction in the socio-political life of a system and have cascading effect on the social scenario. The expression economically backward or economic advancement has purposely not been used to avoid the inclusion of majority of rural population which continues to groan under poverty conditions. the protective discrimination programme has been designed specifically to remedy social disadvantages by way of distribution of state advantages. Unless all social groups are brought 84 Ronald Dworkin. when it was introduced under the Constitution of India had to be based on the discredited version of Caste System. The policy is intended to help the historically disadvantaged groups to remedy the handicaps of prior discrimination impeding the access of classes of people to public administration. social intercourse amongst the groups will be an impossibility. It must be noted in this context that article 15 (4) and 16 (4) specifically refer to social and educational advancement of disadvantaged groups. so much so that even the Protective Discrimination system. Indian social system from the beginning of its inception has been witness to the changes of multiple dimensions.

26 in the contemporary societies and since it still retains a lot of socio-political validity. it was comparatively a dynamic order unparalleled 85 S. Printed Lectures. which have been debated in other politico-legal systems (especially U. National academy of Administration. on the contrary.Dhavan. It would be interesting to learn how the so called disadvantaged groups in Indian society willingly accepted their position as part of the Dharmic order of things .S. and which ultimately became the base of the present protective discrimination programme under elaborate provisions of equality and justice under Indian Constitution(IV). Mussorie. which got distorted into a hierarchical caste structure. The point is . In the post independence period.S) as well. but his also does not justify Henry Maine’s dismissive remark that much of Ancient India’s wisdom consisted of ‘dotages of Brahmanical superstitions’. India’s genius for accomodation can only be understood against the backdrop of this Dharmic order which holistically encompassed all of the society. This social system was not certainly the rigidified hierarchical structure as it has been presented to be. however.The present set of policies too have more than 100 years history. The present model. The ancient past has not certainly been a blameless one. Indian Jurisprudence and the theory of State in ancient India. though the stated objective was to redress the inequality in public services. Apparently a mechanism to maintain the balance of power amongst different sections of society. complex and bewildering as it is . how and whether the inequalities were inherent in this system as has been made out to be ?Whether the system was inimical to individual liberty ? If yes what remedies were thought about the propounders of that system or they were simply insensitive about it ? If not how and why the deterioration set in reducing a whole section of population to thraldom and worthlessness and thus necessitating a programme of preferential treatment ? We will start by having a brief sketch of ancient India’s organising principles of socio-political governance (I). it would be appropriate to understand the basics of it.85 This kind of an attitude towards ancient Indian traditions in law and justice represents the attempts made by the colonial administration to discredit the ideological foundations of Hindu hegemony of ideas. the burden of which is still carried by the deprived and exploited sections of the social system (III). the set of policies of protective discrimination were adopted as a measure of social Engineering and for the upliftment of weaker and deprived sections of our society for the purpose of redressing the ills of the past and ushering in an egalitarian social order. This chapter is an attempt to trace the long journey of an ancient system to the present model of administering equality and justice. it would not be possible to cover the whole range of issues that form the part of the present discourse on Protective Discrimination. elaborate. 1962. shall be . Initially the policy was introduced by the colonial administration to divide and rule the local people and perpetuate their authority. trying to understand the peculiar setting of Varna system and its rationale (II). As such a few arguments. due to the structural complexities.

(1969) 27 having the sense of obligation due to the five fold debt. without caring for the likely outcome. the former are to be inferred from the later. Richa Publishers. They usually describe not the rights of citizens but the duties of the state. something which ensures. Hindu tradition considers political duties of the citizens as part of his general duties (Dharma) and assumes that there is no primordial conflict between the state and citizen necessisating a clear cut definition of rights and obligations of both. 87 The Cultural Polity of Hindus. so to say the Dharma of both entitities is “Yato Abhyudayh Nihshreyasah sa Dharmah”. With this essential complementarity of the individual and the state under Hindu system. State as such is indispensable for the progress and happiness of the individual. Context of Ancient India’s Socio-political governance. realising the five kinds of debts he owes towards the system has to concentrate on his duties.87 The very existence of the state is for the purpose of promoting all sided progress of the citizen. Similarly they discuss the duties of citizens from which we are to infer the extent of the control. State as such for the Hindu system is not a necessary evil but a necessary benefactor. Bikaner. As such the ultimate goal of both the individual and the state. “therefore perform your duty effeciently without attachement. India.absolute and best of development is Dharma and therefore ensuring such an . bewildering as it may appear to a western mind. The conception of individual rights therefore could not be a major problem for political and jurisprudential thinking. the individual citizen is to be understood and defined from a holistic perspective and from the perspective of individuals goal in life.taken up for the purpose of putting the things in perspective. Before we look at the ancient Indian paradigm of equality and justice. 1. 88he owed to the system as a whole could sacrifice himself for a bigger purpose. Hindu constitutional writers have approached the problem of socio-political organisation from quite different point of view. That’s how Geeta puts it. complete. Dr. Every individual being. when we approach the conception of equality of citizens. The proponents of Hindu system had no presuppositions of the possibility of the suppression of the individual and therefore no pretentions were made to secure the rights of an individual. Individual on his part 86 Shrimadbhagwadgeeta. 2/47. because it is only by actions without attachment that a man can attain the supreme”. we must understand the fact.86 Another important point which is peculiar to a western mind and is required to be noted for a proper understanding of India’s jurisprudential tradition is that there is no essential conflict between individual and society or the state. Nandkishore Acharya. The purpose of the individual as well as that of the state is to take care of the personality of the individual and ensure its all round development .e. that the organising principles of Ancient India’s socio-political arena were not rights but the duties. i. the state could exercise over the citizen. The western tradition separates the civic and political life of the citizen from that of his moral and spiritual life and defines his rights as against the state which is assumed to be hostile to individual liberty.

allowing every potential of every individual to develop. the character and the potential which an individual is born with. At the physical level. rather the system has to take care. Basic nature. having many layers of consciousness. They are Dev Rin. It is complex of various interacting factors. At the other level. Psychological researches establish it that our mind is conditioned at a very early young age. As such there is no difference between A and B. and devise the whole educational and cultural set up in such a way that the vicious propensities of the individual are curbed and the virtuous propensities are allowed and helped to flower fully. five kinds of debts.(Debt towards ones ancestors) Manusya Rin (Debt towards ones companions with whom one grows into a fully developed unit of the social system) and Bhut Rin (Debt towards the environment). the basic equality of the matter constituting the human body is recognised.e. “ One who considers everybody (including the every creature of the living world) like his own self is the true knowledgeable person”. This diversity of natural propensities is to be taken into consideration by the system providing for balanced development of any human individual . Such an individual whose personality character and potential are developed in a balanced manner shall in turn help in the evolution of the societal and state system and contribute his bit in the overall growth of a united entity.(Debts of the teachers and sages) Pitr Rin. State system has to recognise that no two individuals are similar in their natural propensities and therefore a uniform regimented system would not help every individual in achieving his fullest growth. circumstances. can never be the same for any two individuals .environment wherein the character.89 At this level human body is nothing but a vibrating pulsating mass of neurons. What distinguishes the two are the means of experiencing the outer world. (Hitopadesh. an individual owes to the social system. and the potential of the individual finds their fullest development is the duty of the state and as such the right of the individual . i. It works on the basis of some established beliefs and set convictions. India’s philosophic traditions aim at conditioning of human mind at an early age in such a way . The system cannot simply think of providing similar 88 According to Manusmriti (73/69). call it state or society. the level of physical being. No one individual is either a paragon of virtues or simply a bundle of evils. Vishnu Sharma) 28 educational facilities. Individual personality in the Hindu scheme of things is not considered to be unidimensional or unilinear. On the contrary every individual person posseses a unique combination of virtues and vices. Aristotelian concept of applying equal laws amongst equals is no different from this. under Indian Constitution speaks in the same vien.(Debt of Gods) Rishi Rin. This is the level of consciousness. no two individuals are similar in any way whatsoever. And the concept of equal protection of laws. 89 Atmavat Sarvabhuteshu yah pashyati sah Panditah.

even today. 29 division of labour in Ancient India was known as Varna system contemplated for the wellbeing and evolution of socio-political system. is known as Brahmin.that man grows with a sense of gratitude and obligations towards all those forces which nurture his elements and psychological personality. social and individual. capable of protecting the oppressed and the weak becomes the one who supports such measures and implements those policies with the help of sanctions he possesses and is known as Kshatriya. He is not allowed to develop the sense of conflict or dichotomy towards the system which he considers as complementary to his personhood rather than contradictory to it. but the principle on which this distribution was based in India was peculiar to this country…… A Brahmin was a Brahmin not by mere . judges and academicians. 2. There are two sides of this control or regulation. It represents the social side of Dharma and the individual side is represented by the Ashrama Vyavastha. Some one who is intellectually very sound and is adapted in policy issues for social regulation. One who is physically powerful and has leadership qualities. His ultimate ambition can be realised only in a well regulated social system wherein he has a definite place and a role to play. individual is not an absolute entity. just as much as class in Europe. Those who are efficient in economic planning and execution. Radhkrishnan. which somehow impinges on the thought process of policy makers. Varna System (the Classificatory Principle) It may be noted that the purpose of any legal system anywhere in the world and for that purpose of Dharma in particular in India has been to control and regulate human life without unduly intervening in his private life and natural liberties. Rajpal and Sons New Delhi. perpetuation and development of social system and contribute towards economic well being of the social organism are known as Vaishyas. This four-fold 90 Dr. they either themselves or with the help of the labour perform their duties for re-inforcement . Every individual has a certain definite place or status in the society and the duty he owes to the social system are based on this status. This Varna System was originally an arrangement for the distribution of functions in society. legsilators. This is called “Varna Dharma”. 1971. middle age and or old age etc. which relates to various stages of individuals life. And those who find their fulfillment and expression in labour and services of others are known as Shudra.. young age. S. It is on the basis of his natural potential and his role in the social system that he becomes part or member of a particular group or community within the social system. It is for this reason that the complexion and texture of the philosophy of rights in Indian context is a bit different from that of the west and that has got to be understood for the proper understanding of India’s ancient jurisprudential thinking. 90Looking at the social side of the individual. Eastern Religion and Western Thought.

P. “Vijanihyarnye cha dasyavoh”92 i.93 Prof.V. after carefully studying the ancient scriptures. 1975. 93 Ibid. 96 Yajurveda. noble and “Anarya” the idiot or Shudra. The Kshatriya was kshatriya not merely because he was the son of warriors and princes. the kshatriya from the arms. Varnashrama Dharma Vishay. but because he discharged the duty of preserving the spiritual and intellectual elevation of the race. who were later subjugated and given a position subservient to Aryas94. Dasyus or dasas.V. The most prominent and known use of Varna is found in Yajurveda. But later owing to cultural advance. Kane. History of Dharmashastras. and he had to cultivate the spiritual temperament and acquire the spiritual training which could alone qualify him for the task. there were only two Varnas. 94 P. wherein four types of Varnas have been accepted. So it was with Vaishyas whose function was to amass wealth for the race and the Sudra who discharged the humbler duties of service without which the other Varnas could not perform their share of labour for the common good. Brahmanasya mukhamaseet Bahu Rajanyah Kritah Uru tadasya yadvaishyah padabhyam shudro ajayat. {1968} Vol – I Bhandarkar Research Institute Poona. Kane. Etymologically speaking the word Varna is derived from the original sanskrit word “Vri” which means and stands for chosing or selecting a thing. Manu talks about the same in the following manner. and he had to cultivate the princely temperament and acquire the strong and lofty Samurai training which alone fitted him for his duties. There was no essential in-equality between a brahmin and a sudra since both of them were the necessary part of the single “Virata Purus” (cosmic spirit). 30 . the vaishya from the stomach and the shurdra is born from the feet of the Lord. genius and temperament91. Chaukhamba Publishers Varanasi. The first use of the term “Varna” is found in Rigvedic texts in which the mankind has been divided into two . division of labour arose and numerous arts and crafts developed and they were in the process of contributing to the complexity of the system by creating numerous subcastes based upon occupations95. the Aryas and their opponents. Thus the word “Varna” implies the occupation chosen or selected by an individual in accordance with his nature.birth.e. men are of two kinds “Arya” i. disposition.e.96 A rough and precise translation of the verse is that the Brahmin is born out of the mouth. 95 Ibid. Purush Sukta. 91 Rigvedadi Bhashya Bhumika. but because he discharged the duty of protecting the country and preserving the high courage and manhood of the nation. concludes that in the earliest times about which literary record exists. 92 Rigveda.

kubera 97etc. 1/89 99 Nirukta 2/1/4 100 Rigvedadi Bhashya Bhumika. The etymological explanation or the derivation of the word Brahmana is “ Brahmana Veden 97 Manusmriti. agni. The Eight elements said to be the constituting elements of the king are the eight virtues which are expected to be found/inhered in a king and as such this implies the virtues of the king. the creator.98 This implies that the Almighty God has created four varnas for the security.e. vaishya and Shudra for the upkeep and betterment of society corresponding to the four limbs of the Lord. chandra. Swami Dayananda Saraswati. surya. Manu too talks about four varnas in the varna vyavastha based on Vedas and the point to be noted in this context is that the system is based on Karma (deeds)and not birth. The term varna itself establishes that this system is based on karma and not birth. Etymological meaning of the word Varna is given in Nirukta “Varno vrinoteh”99 meaning thereby that something which is chosen/selected by the person according to his karma is varna. Sarvasyaasya tu sargasya guptyartham sa mahadyutih Bahurupajjaanam Prithakkarmapyakalpayat . order and prosperity of this earth. Further the etymological meaning of the different varnas explain the karma {duties} of a particular varna and it is by adopting the duties of a particular varna.e. Kshatriya.Lokanam tu vivardhyartham mukhbahurupadtah Brahmanasya Kshatriyam vaishyam shudram cha nikhartayat i. the Lord has created four Varnas. varuna. one who devotes oneself in the studies and thought of the Vedas and the God. Gunkamani cha drishtwa yathayogyam vriyante ye te varnah. Rigveda states that the King has been made out of eight elements i. Commenting on this Swami Dayananda Saraswati writes . “Varno vrinoteriti niruktapramanyad varniya varitumarhah.e. arise when we take the words at their face value i. Indra. However the fact is that this is figurative or rhetorical or symbolical representation that Brahmana has been born from the mouth or the head of the Brahma. That means that four Varna system has been bestowed on the world by the Lord. simply because the temporal body of human beings have been constituted of five elements i. when we do the literal interpretation of the text.”100 i. and bears a . vayu.e. the right given to an individual after observing his qualities and dispositions is the varna. yama. corresponding to the four limbs of the lord and the Karma of a particular varna shall be entitled for the same. Brahmin.e. earth. 1/87 98 Ibid. Evidently the king cannot be produced by eight elements.e. water. fire sky and air. 1975 31 Parmeshwarasya upasanen cha sah Vartmano vidyadi uttamayuktah Purushah” 101i. This may be illustrated by way of an example. Chaukhamba Prakashan Varanasi. The point worth noticing is that doubt about this theory of Brahmanas having taken birth from the mouth of the Brahma etc.

his dynasty will never suffer from penury and birth of an idiot offspring. is benign.e.104 i. Manu explains the duties/deeds of the Kshatriya Prajanam Rakshanam Danamijyadhymeva cha Vishayeshva prasavittashcha kshatrisya samasatah. 13/1/53 105 Ashtadhyayi. In this connection Manu states Pashunam Rakshanam Danamijyadhayayanmev cha Vanikpatham kusidam cha vaishyasya Krishimeva cha 107. and vaishya. not allured by worldly vices and has control over himself. kshatriya. studies of Vedas and other scriptures. noble and humble is the kshatriya in the real sense of the term.e.good moral character is Brahmana. invasion or loss etc.102 The word Kshatriya is deived from the original word kshat and has been explained etymologically in Nirukta “ Kshadati Rakshti Janan kshatrah” 103i. doing all kinds of business.25 percent . 4/2/59 102 Manusmriti. 2/1/19 106 Vasudha Smriti. but still due to the relation of cause and effect and the transfer of knowledge the son of Aditi is called Aditya.108 Like Brahmin. not taking interest more than 1. the wife of the sun is called Suryaa and so on. whether Manu treats birth as the determiner of the varna of an individual? An approved answer to the doubt is that the relation of an offspring is established not only by birth but by transfer of knowledge or virtues too. 107 Manusmriti 1/90 32 less interest he takes the more he progresses in terms of money. varuna etc. assures protection. The 101 Ashtadhyayi. the public at large. Manu too states the same thing.. performs agnihotra yagnas.e.e.25 percent and not less than 0. i. investing money for progress of knowledge.. shudra too is indicative of a varna system based on merit and deeds.not accepting even a penny on receipt of double the original money. to do and getting done the yagnas. Yo yatra tatra vyavaharvidyasu pravishati shah vaishyah vidyakushalah jano va” 106i. Shudra is that person who can never obtain the . is kshatriya. 1/88 103 For similar views see Etareya Brahmana 8/2 104 Manusmriti. According to him to study and teach Vedas. gives alms to worthy people. 105 The term Vaishya too is indicative of the varna system based on merit and deeds and not by birth. and to give and takes alms/donations are the six duties/deeds of the Brahmana. one who protects public from violence. one who engages in different types of business relations and is different in different pragmatic relations is vaishya. “Shudrah shochniyah shodhyam sthitimapanno va sevayam sadhur avidyagun sahito manushya va”109 i. performing yagnas like agnihotra etc. the protection and betterment of animals like cow. one who devotes oneself for the thorough studies of Vedas. for similar views see Tandya Brahman. For example there are supposed to be no wife/offspring of surya.e. Here the doubt may arise due to the use of the word “eeya” in the sense of an offspring.

1/91 112 M.e.” 114This shows that the same man could be a sage.Tripathi Bombay. 1968. would you make me a sage that has drunk soma. 3/2/39 111 Manusmriti. belonged to the fourth and second Varna respectively”112 Further it must be noted that shudra is not by birth but one who cannot become Dwija or twice born by studies of Vedas is shudra or Ekjanma i. Writing on the social status of a shudra Manu writes Ekmeva tu shudrasya prabhuh karma samadishat Etevameva varnanam shushrushamanayuya . the Lord has instructed him to serve the three upper varnas of Brahmin. IX. who are regarded as the greatest poets and writers and philosophers of the country and who are held in the highest esteem down to this day by all sections of society. 112. He is treated as shudra since he is not twice born by knowledge. inferior or worthless. would you make me the protector of the people.5 33 The most authentic description of varna system and the duties of different varnas is .Rama Jois.3 114 Rigveda III. 109 Unadi Sutra Path. one who is devoid of knowledge and cannot be taught by teaching process but is efficient in terms of physical robustness. which stands for purity of mind and body. would you impart me endless wealth. the owner. Chaukhamba Prakashan.e. It is worth noting that castes were not hereditary. (1984) Legal and Constitutional History of India. Swami Dayananda Saraswati. kshatriya and vaishyas without any ill will. But in fact there is nothing in the varna system that may warrant this assumption.113 In another verse in Rigveda a poet asks the God Indra.e. And this is also self evident that a person who serves others can never be treated as lowly. my father is a physician and my mother grinds corn with stones”.M. 44. and this demonstrated by a verse in Rigveda where a poet exclaims “ I am a reciter of hymns.111 i. 2/19 110 Taitriya Brahmana.Justice Rama Jois explains “ the Superiority or inferiority of an individual by birth in any one of these classes appear to have not been in existence. For instance Valmiki and Vyas. or a nobleman or a kind. or would you make me a king.position of uprightness due to his ignorance and the one who is looked after by a swamin i. 113 Rigveda.e. Further “Ashato va Esha Sambhuto yat Shudrah”110 i. I N. 108 Satyartha Prakash. “Oh Indra! Fond of soma. one who is one time born. vol. the shudra is also called by the synonym Ekjanmah. This may create a sense of inferiority and worthlessness of an individual who is shudra. Varanasi. the Ramayana and Mahabharata. depending upon his desire and activities. Manu has used the word Shuchi while explaining the duties of shudras. the authors of two great epics. one who suffers lowliness due to his ignorance and idiocy and the one who can only serve his master is called shudra.

Similarly an individual born in a shudra family remains a shudra only if his deeds are those of a debauched person.116 Roughly the above sloka implies that a Brahmin who instead of studying Vedas invests his energies in the study of other things attains the shudrahood alive alongwith his family.115 The above sloka implies that a Brahmin. Manu writes Uttamanuttamangamangachhanheenanheenasch varjayan 115 Manusmriti. Not only this. The provisions of Manusmriti make it clear that varna system used to structure/design social system according to ones deeds and not by ones birth as such. Had he treated varna to have been determined by birth. If the merit of an individual is accepted by birth alone the entire Karma system of Manu will collapse. the duties of various varnas specified and other provisions of Manusmriti amply demonstrate that Manu treats the merit and demerits of an individual according to his deeds and not by birth alone. otherwise he lapses into shudrahood. who is not knowledgeable. The question may arise why an entire family should lapse into shudrahood for the deeds of a single person in the family ? The reason is that one who does not study Vedas gradually looses his erudite and lapses into shudrahood and once the head of the family is shudra how can he teach/transfer the erudite to his dependants and therefore they too lapse into shudrahood. He treats every individual a shudra by birth. A person born in a Brahmin family may remain a Brahmin only if his deeds are like those of a Brahmin. He writes Yondheetya dwijo vedamanyatra kurute shramam Sa jeevannev shudratwamashu gachhati sanwayah . depending on ones deeds and actions. According to Manu one who does not follow his duties turns into a shudra. The account of acts prohibited by law. the same undesirable deed would not affect his station in life at a later stage.e. On the contrary if his deeds are like that of a Brahmin or kshatriya he gains the varna suiting to his karma. there was no question of discussing the merits and demerits or duties and rights of various varnas since the same had been determined by their birth only and the deeds of an individual would not have affected his place/status in the social system. 10/65 116 Manusmriti 10/66 34 . too becomes shudra. The point to be noted in this connection is that the word veda here has been used as a synonym of knowledge . If an individual born in a Brahmin family does something which does not suit his place/status in he society and is still held to be a Brahmin. but one who keeps company of shudra i. “Janmana jayate Sudrah” i. The Manusmriti is suffused with various examples of it. The best illustration/argument to support this proposition is that Manu had discussed at large the duties of various varnas. deeds and disposition.e.supposed to have been given in Mansumriti. Shudro Brahmanatameti Brahmanshchaiti Shudratam Kshatriyajjatmevam tuVidyadvaishyattathaiva cha . may turn into a shudra and shudra into Brahmin. ever body is a sudra by birth and his merit or station in life is determined by his acts and deeds.

There comes a story in Mahabharata. The terminology of Manusmriti is such that the symbolical words are to be interpreted in their right context and meanings given accordingly. The way a Brahmin looses his Brahminhood by not doing the deeds suiting to his Varna.e. because system believed in perfect equality at the spiritual level. Shuchirutkrishta shushruvurmtaduvaganah kritah Brahmanadyashrayo Nityamutkrishtam jatimashnute118 i.. became the revered teacher of a Brahmin. a Brahmin by keeping in touch with meritorious and knowledgeable people and by leaving the company of shudras and debauched. The chandala. was based purely on ones deeds and was designed for the maintenance of law and order and progress of the system. 120that an established Brahmin named Kaushik gets an elaborate lecture from a butcher. It is commonly believed and alleged many times that the caste system has really hampered the growth of a democratic system. if is soft spoken and devoid of pride may attain Brahminhood or the Dwijanma i. similarly a person born in a shudra family may attain Brahminhood by doing the suitable deeds. Firstly. The people were divided into four Varnas but the Varna system was designed for the peace and progress of the people at large. Dr. therefore you are no better than a Sudra”. who was proud of his caste purity. The people were equal by birth and there were available ample opportunities of social mobility horizontal as well as vertical. The rigidity of the later period jati system was not at all existing and everybody was free to raise or lower his station in life by his action and deeds.117 i. and are enmeshed in human vices. Radhakrishnan.) The system was based on 117 Manusmriti 4/45 118 Manusmriti 9/335 119 Shankaracharya. the maratha pariah. (an outcaste who takes care of the burning of died bodies) taught Shankaracharya 119for a Brahmin was revealed in the body of the Pariah and in the Chandala there was the utter presence of the Lord Shiva. A noticeable point in this connection is that the word Brahmin here.It was because of this that Chokha Mela.Brahmanah Shreshthatameti Pratyavayen Shudratam.e. One who acts contrary to it lapses into shudrahood. keeps on attaining merit after merit. a shudra of pious body and character serving the higher castes. has not been used for the person born in a brahmin family but for the one who attains Brahminhood by his deeds and dispositions. “ You appear to have attained the Brahminhood only in this birth for you are so full of pride.121 The above brief exposition of the provisions of Manusmriti and other scriptures makes it clear that the varna system of the ancient period far from being birth based rigid system. twice born Varna . was one of the greatest religious teachers of India who revived the . however considers the Varna System as perfectly democratic system. (Atmavat Sarvabhuteshu…….e. born in 8th century.

Under this system a proper balance of spiritual. rather the responsibility of looking after the welfare of the shudras shared by the three Dwija Communities. Deterioration of Varna System into Rigid Caste System. 35 the belief that everybody is the expression of the Supreme Lord and has a natural and fundamental right to develop his person to the fullest extent. Van parva. State is some kind of a machine.Vedic Studies and established that Indian Culture is Vedic Culture and that an essential unity exists in the Indian masses from north to south and East to West. III/75-84. Now the offsprings of . Secondly. During the later years of vedic times and post vedic period the varna system started loosing its shine and there started appearing cracks in the system. the rot started setting in. however the mental horizon of the people had started narrowing down. Fourthly. What does equality under a democratic system implies is that every part of the system has a right to make his contribution and shall get an opportunity of doing so . Individualism is not fulfilled by running away from the limitations of responsibilities and accountability. With the changing times. There certainly was no system of untouchability. everybody has to work according to his choice. it also establishes a system of responsibility and accountability. The true individualism lies in the willing acceptance of the social responsibilities tempered with propriety and honesty. Shudras were placed at the lower station in social system but were not looked down upon. 120 One of the two all time great Epics of India. according to the choice of the buyer. Last but not the least individual liberty under a democratic system also implies the regulation of liberties. an organic system. Human individual is in fact the manifestation of the supreme. the cosmic spirit and what should he do should be determined according to his inborn qualities. however. No democratic system would accept that all individuals in the state system should be alike. Thirdly this system also recognises that all functions have social utility but economically speaking no particular function has any priority. A human individual is niether a single cell like creature nor a machine which can be bought and deployed for performing a particular task. it must be understood that social justice is not a system of rights but a system of equal opportunities. potential and propensity and has to achieve their fulfilment. political and economic power rules out any kind of misuse of power of any organ of the state system. Though the varna system during this period too remained deed based and there still was a bit of mobility amongst castes wherein changing ones varna was still possible. Under this fourfold division. There was no prohibition of varna marriages amongst three Dwija varnas. 121 Mahabharat. based on a story of Mahabharat War supposed to have been fought more than five thousands years back. different parts of which have to perform different functions. 3.

Since kshatriya gave protection to these Dharmas the status of kshatriyas in the social ladder recorded an improvement.e. The varna system which was deed based hitherto. Though anuloma. Like marriages. But the essence of it had now been lost. but for the offspring of such marriages there was a different caste system. The willingness to change ones varna had started weakening. The systemic flux 36 gave rise to Budhism and Jainism who attacked Brahminism by emphasising upon the equality of birth and deed based varna system. The word Varna had now become a dead letter and the varna system was now replaced by the caste system which was of a different genre altogether. the instances of change from one to another varna had started becoming rare. Rigidity in marital relations and turning of varna system into caste system was followed by formation of clusters of jatis{castes} and upjatis {sub-castes}. shudra.e. Brahmins were at the apex of social system due to their established status in society. Anuloma marriage were permitted. The interpreters like kulluk Bhatt wrongly interpreted the Vedas and Dharmashastras to serve their vested interests. their offspring were looked down upon and were treated as crossbreeds and hybrids. When Btuhdeh ism and Jainism too started showing the signs of decline. The Manusmriti had established an ideal system of rules for the regulations of social behaviours. Intercaste marriages were prohibited altogether and marrying in ones own community was made essential. 122The duties of different castes and subcastes had become determined and at this stage of social development appeared untouchability. now they fortified their position by interpreting the Vedas in their favour. Occupational structure of the social system now had become completely based on inheritance. now started taking the shape wherein the birth was important in determining the status of an individual. Brahmin made full use of their status and interpreted Vedas and shastras in their own way distorting the right meanings of the terms. Administration and reins of power were now completely in the hands of kshatriyas. The offsprings of different varnas started inheriting the membership of the particular varna. Though the mobility amongst different varnas was still possible in theory. strict do’s and donts were prescribed in food relations too. There were mainly four Varnas initially. kshatriya. Brahmin. The social status of shudras had recorded a steep downfall. i. i. the Brahmins once again raised their positions. But now these were subdivided into various subcastes. Due to these interpretations the position of Brahmins in society had become fortified but then status of shudras and women had been lowered considerably. Kshatriyas {Rajputs} accepted this version of social system simply because it did fit in the protection of their immediate interest of . vaishya. The predominance of rituals prohibited intercaste marriages.Brahmins were started being identified with the specific tasks of Brahminhood and offsprings of kshatriya for the tasks for kshatriyahood. the marriage of a high caste male with the low caste female was permissible.

Sharma. Upnayan {wearing of sacred thread} was now completely prohibited for shudras. Persians. entering into temples and places of worships to offer their pujas etc. including the huns.P. Calcutta.123 The opportunists and weak-kneed elements filled in the layers of administration which ultimately resulted in the weakening of state system which enabled foreign rulers to invade loot and occupy the country at various points in history. French. was very difficult to determine taking into consideration the psychological propensities of different people. and a situation developed wherein the locals were compelled to stay with them. 37 According to Justice Ramajois “In the meandering course of our history the society got divided into innumerable castes and subcastes. Portuguese. This affected the socio-economic and politico-cultural system in far reaching manner. And since Brahmins were being protected by the administration they once again came to dominate the scene. another curse for the already fractured socio-economic and politico-cultural Indian system. This resulted into a kind of molopoly over vedic studies in the hands of Brahmins who interpreted Vedas and shastras according to their whims and to serve their vested interests.Sriniwas: Caste in Modern India. it became rather an imperative to maintain the sanctity of the descent by education or tradition. The evil of discrimination as high and low among men on the basis of birth. hereditary avocations and other considerations raised its head and the pernicious practice of untouchability with all its degrading inlications came into existence”. Study of Vedas too was banned for shudras. Religious rites had now become ritually dominated. Mongols. weak and tyrants. India came under Muslim rule around 12th century A. Arabs. Turks. it was then. State administration has turned into inherited monarchies. 1978.124 The week-kneed executive and resulting chaotic administration attracted the marauding invaders of medieval times and with the onslaught of invasions starting in 327 B.125 some of the early invaders like Huns were very cruel and uncivilised and caused a lot of bloodshed in the process of their invasions. Who should belong to which varna.C. When such people and races started settling down permanently. With the decline of Mughals there started European incursions. Sarvapalli Radhakrishnan. for more than 600 years until the Britishers took over the power at the end of 18th century. Ancient History of India. They were hard core businessmen and wanted to exploit the resources of this . They were no reformers or charityists. India faced foreign armies. and British . They were now banned from. 1962 123 L. It was in such a situation that birth started being considered the basis of classifying different Varnas.continuance of their tutelage. 122 M. that marriage and social interaction were restricted and that resulted into coming up of caste system. as a result of which the king started becoming lusturous. In the course of time Britishers came to predominate the Indian scene.D. Afghanis. The weak and ignorant kings came to occupy the throne and head the administration. indulgent. According to Dr. Once this system got established. Asia Publishing House Bombay. indignant.N.

(1971) 38 to get the barbarous practice of Sati abolished. 125 Eastern Religion and Western Thought. There were attempts from within Hindu society to reform and rehabilitate the system. Secondly he tried 124 M. {1984} Legal and Constitutional History of India. Jyotiba Phule by establishing Prarthana Samaj worked for the social upliftment of the deprived and underprivilieged sections of society. Swami Dayananda Saraswati in the late 19th century attempted to reform the system from within by removing social evils and invigorating the system. Thus came into being social hierarchy and stratification resulting in perpetration of injustices by the so called on the lower castes. He attacked idolatory. Rajpal And Sons. This was evidently the intent of India’s protective discrimination programme. As such the economic exploitation of the country continued and the empoverishment of Indian subcontinent coincided with the industrial revolution of Europe . the founding fathers of Indian Constitution were aware of the entrenched and cumulative nature of group inequalities and therefore constitutional policies were .land for their own gain. 4. into a modern egalitarian society based on individual achievement and equal opportunities for all regardless one’s caste race.M. Raja Ram-mohan Roy saw a close link between social and political progress and he perceived improvement in social conditions as essential for improvement in political conditions of the country.Tripathi. but was later day accretion due to may internal and external reasons. with the Britain working as the engine of growth in European subcontinent. Inevitably. Proud of India’s rich and varied heritage. but pained at the prevailing social evils of caste system etc. no attempt was made to reform the socio-cultural system of the country and the already existing social evils were used by Britishers to perpetuate their exploitation. N. He was basically a social reformer and the Shuddhi movement started by him was intended for removing social evils from Hindu society. it should be taken note of that the rigidity and inflexibility which has come to mark India’s caste system characterised by inequality and hierarchical nature. Bombay. Vol-I . New Delhi. He took up the cause of women and raised the voice against the discriminatory and unjust treatment meted out to them and also favoured widow remarriages. This necessitated a programme for the reconstruction and transformation of a medieval hierarchical society emphasising inequality. and through his scholarly research established that idolatry was not sanctioned by Vedas and Upnishads. Post-Independence India : A New Beginning. or religion.126 Before we move on to next section. it gave rise to gradation and put a premium on snobbery. In the course of time it gradually hardened into a rigid framework based upon heredity.Ramajois. It also created an undesirable crack in Hindu Muslim relations. was not inherent in the traditional social pattern. Since the Britishers had only economic interests here.

These protective discrimination policies are authorised by constitutional provisions. housing and other scarce resources like. 1990. Political Thinkers of India. Second type of protective measures are employed though less frequently in land allotment.1. there is no public defence for the caste system.designed to offset these entrenched discriminatory practices. 129 Indian Parliament is a Bicameral Legislature. However there have been controversies galore on a number of issues who really deserve this help and how long ? What kind of a help it should be and what is the efficacy and propriety of this help ? Reservation in jobs and government services and in educational institutions has been the focus of these controversies. grants loans and health care etc. 4. 128 Ibid. scholarships.185.128 These array of protective discrimination programmes can roughly be divided into three broad categories.129 reservations in government services and reservations in educational institutions. Interestingly few in independent India. Oxford University Press. Lok Sabha is the lower chamber. P. Reservation in Legislative Bodies. Deep & Deep Publications. valued and clearly perceived inequalities127. New Delhi. Rajya Sabha is the upper chamber of the Parliament having 250 members elected indirectly for 6 years. 1998. New Delhi. 127 Marc Gallanter. The result has been an array of programmes that are termed here as policy of Protective or compensatory Discrimination. In fact the measures for ensuring equal protection of laws involve the element of protection as well as that of compensation or reparation to offset the systematic and cumulative deprivations suffered by lower castes in the past. evenhandedness and indifference to ascriptive characteristics. prohibition of forced labour etc. that permit departures from norms of equality. including the reservations for Scheduled castes and scheduled tribes in Lok Sabha ( House of the People. Thus independent India came to embrace equality as a cardinal value against the background of elaborate. would voice the disagreement with the proposition that the 126 Verinder Grover. Law and Society in Modern India. consisting of 544 members elected directly for five years. 39 disadvantaged sections of the population deserve and need special help. such as reservations in legislatures. the lower house of Indian Parliament). . such as merit. everyone is against untouchability. First are Reservations which allot or facilitate access to valued positions or resources. We take these three types of reservations one by one in this section and try to present the pros and cons of these protective measures. Third type of protective measures are specific kinds of action plans for removal of untouchability.

For the purpose of providing protection in terms of political representation. but the exclusion has now been extended in respect of the state of Meghalaya. The need is to evolve ways and means to gradually adjust the tribal population to changed conditions and integrate them slowly in general life of the country without undue and hasty disruption of their way of living.N.130 These scheduled tribes people too need special provisions for safeguarding their interests. Mizoram and Arunachal Pradesh are excluded from the operation of article 332. 1990.132 The claim . Wadhwa and Co Nagpur. The tribal people have remained backward because of the fact that they live in inaccessible forests and hilly regions and have thus been cut off from the main currents of national life. The scheduled castes are depressed sections of the Hindus who have suffered for long under social handicaps and thus need special protection and help for the amelioration of their social economic and political conditions. Nagaland.P. their own peculiar customs and cultural norms. Once again the state of Meghalaya.Jain. As such if the members of said categories are able to secure additional seats there shall not be any repugnancy to these provisions at all. It is obvious that reservations of seats in Lok Sabha and legislative assemblies of the States in favour of scheduled castes and scheduled tribes is for the purpose of ensuring presence of minimum number of representatives of scheduled castes and scheduled tribes 130 M. The main problem concerning these people is that their socio-economic conditions be improved at such a pace and in such a way as not to disturbe suddenly their social organisation and way of living. 40 in the legislative bodies. article 330 of Indian Constitution provides that seats in proportions to the population of scheduled castes and scheduled tribes in particular states are reserved in the Lok Sabha.131 Similarly under article 332. simply because of the predominant tribal population in those states. Article 331 and 333 does the same in favour of members of Anglo-Indian Community. 131 V. are those backward sections of Indian population who still observe their tribal ways. Eastern Book Company Lucknow. Scheduled tribes also known as ab-origines. Indian Constitutional law. The states which are predominantly tribal are excluded from the operation of article 330. Earlier section 2 of 23rd amendement of the constitution 1969. Constitutional law of India.Shukla. seats are reserved in the legislative assemblies of the states in favour of scheduled castes and scheduled tribes in proportion of their population in that particular state.The constitution of India treats the scheduled castes and scheduled tribes in India with special favour and affords them with some valuable safeguards. 1997. excluded the operation of article 330 to the tribal areas of Nagaland . Mizoram and Arunachal Pradesh by 31rst amendment Act as these states are predominantly tribal in nature.

under which it was agreed to have joint electorate but reservations in legislative bodies. for separate electorate in 1932 resulting into Poona Pact.V.134 It may be noted that initially these reservations were provided for only 10 years from the commencement of the Constitution under article 334.of eligibility for reserved seats does not exclude the claim for the general seat. But this duration has been extended continuously since then by 10 years each time.Giri v. 133 M.P. It is for the scheduled castes and scheduled tribes alone to elect their representatives133. Elections to the reserved seats are held on the basis of single electoral roll and each voter in the reserved constituency is entitled to vote. This particular provision was given concrete shape in . 1997. Indian Constitutional law. 132 V. Wadhwa and Company Pub. Nagpur. 135 It is felt that the handicaps and disabilities under which these people live have not yet been removed and that they need this reservation for some time more so that their condition may be ameliorated and they may catch up with the rest of the nation. Now the period of reservations in Lok Sabha and State legislative assemblies stands for 60 years from the commencement of the constitution. It is an additional claim obtainable by way of merit and work. all the voters in the constituency have a right to vote. 136 The fact that reservation of seats for scheduled castes and scheduled tribes in the legislatures is not on a permanent basis. 134 This has a long history. The number of Lok Sabha seats reserved in a state of Union territory for such castes and tribes is to bear as nearly as possible the same proportion to the total number of seats allotted to that state or Union Territory in the Lok Sabha as the population of the scheduled castes and scheduled tribes in the concerned state or Union Territory bears to the total population of the state or the union territory. Their condition would improve so much that they would feel their interests secure without any kind of reservations. D. Suri Dora. AIR 1959 SC 1318. Mahatma Gandhi has undergone a long fast to protest against the Ramsay Mc Donald award. There is no separate electorate. This method has been adopted with a view to discourage the differentiation of the scheduled castes or scheduled tribes from other people and to gradually integrate them in the mainstream of national life. Thus to elect a person belonging to such castes and tribes to a reserved seat. but is at present provided for 10 years period at a time. shows that it is envisaged that the scheduled castes and scheduled tribes would ultimately assimilate themselves fully in the political and national life of the country so much so that there would be no need for any special safeguards for them and there would be no need to draw a distinction between one citizen and another.Jain.

136 Article 330 and 332 of Indian Constitution.1. the State is further forbidden to discriminate against any citizen on grounds of place of birth. caste. caste or religion etc. 1990. criteria. article 16 (2) provides that no citizen shall on grounds only of religion. Oxford University Press. See Bipan Chandra. This particular provision falls under the head of “ Right to Equality”. residence.the Government of India Act of 1935. so that the old inequitous situation may not be continued.2000. It may be noted that this particular provision of protective discrimination is not intended to negative or derogatory of the guarantee of equality of article 14 or 15 (1) or 16 (1) and 16 (2). Resevation in Jobs (Government Services) Resevation in government services as a measure of protective discrimination has been incorporated under article 16 (4) of the Indian Constitution. 79th Constitutional Amendment Act 1999. descent. In the specific application of this equality guarantee. sex. 135 This has been effected vide. but is definitive of equality in relation to backward group139. Therefore on the one hand. race and caste. Freedom Struggle. because any real classification will have to take into account the inequalities based on abuse of caste. race etc.138 The constitution after guaranteeing the general right of equality under article 14 defines equality in terms of justice by non discrimination provisions contained in article 15 (1) and 16 (1) and proceeds to incorporate provisions of preferential treatment so as to permit the State to achieve equality to disadvantaged sections by giving them preferential treatment in all its dealings and particularly in the area of public employment. be ineligible for or discriminated against in respect of any employment or office under the State. religion. residence or any of them. brought into force wef. And article 16 (4) which provides for protective measure of reservations of seats in government employment lays down. class . place of birth.25. race . While article 16 (1) guarantee equality of opportunity for all citizens in matters of employment or appointment to any office under the State. 41 4. that nothing in this article shall prevent the state from making any provision for 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. New Delhi.137 Untouchability has been abolished and the citizens are protected against discrimination even on the part of the private persons and institutions. on the other hand it permits these very criteria for .2. In order to give effect to general right to equality under article 14. Thus article 16 (4) should be taken as a clarification that while making classification for favoured treatment to backward classes the State might use the forbidden criteria. the constitution forbids discrimination on grounds of race. language and sex. descent. the constitution secures to all citizens a freedom from discrimination on grounds of religion.

Article 16 (4) neither confers a right on any one nor imposes a constitutional duty on the government to make a reservation for any one in public services. SC 649. although it can be used in conjunction with other relevant consideration like poverty. State of Mysore. Had this proviso been adopted there would have been no need to have provision like article 16 (4). the controversy of formal vs proportional equality equality has not escaped article 16 (4). of course. Equality. In fact Dr. disparity. Now the point is that classification is possible even under article 14 itself which inter alia provides for equal protection of laws. Ambedkar has suggested a proviso to article 14 that “nothing in this clause shall prevent the state from making any law for the removal of inequality. This view stands supported by the cases decided by the Supreme Court according to which the state is authorised to use caste as an index of social and educational backwardness for making preferences.R. The expression adequately represented in article 16 (4) imports considerations of size as well as values. Despite this level of caution on the part of constitutional framers. Adequacy of representation of backward classes in any service has to be judged by reference to numerical as well as qualitative tests 142.correcting evil consequences flowing from their past misuse. this provision permits state to classify individuals for favoured treatment. place of habitation etc. 138 Article 17 of the Indian Constitution. Parmanand Singh. Probably the framers did not want to leave this positive notion of equality as an aspect of justice to the vicissitudes of judicial attitudes which had been thick with formal equality. 1985 140 M. 42 It is noteworthy that under article 16 (4) reservation in government service can be made not only at the initial stage of recruitment. also see the Protection of Civil Rights Act 1957.141 Thus selection posts can also be reserved for backward classes. occupation . but even in the matter of promotion from a lower to a higher post or cadre. It is merely an enabling provision and confers a discretionary power on the state to reserve appointments in favour of certain classes of citizens. 139 Dr. Reservation and Discrimination in India.Balaji v. and 15 (2) of Indian Constitution. however a cursory glance at the constituent Assembly debates proves that article 16 (4) was incorporated by way of an abundant caution144. cannot be the sole or dominant test. 143 An important point about article 16 (4) is that. AIR 1963. disadvantage or discrimination arising out of existing law. Deep and Deep Publications New Delhi.140 137 Article 15 (1). subject to the rider that caste. If one takes the view of formal equality145 which simply requires absence of any discrimination in the .

words of law. this would have the effect of effacing the guarantee contained in . Rangachari.147 For instance it is unclear whether the preferential rules such as waiver of age requirement. For long it had been the view that article 16 (4) is an exception of article 16 (1) and as such the claims of backward classes could be projected only through the exceptional clauses and not outside them.R. then the permissible limit of reservations cannot exceed 49 percent as the exception cannot override the original provision146. This was a Symposium on the Consitution of India. Even reservations have to be made subject to the requirement of article 16 (4) regarding backwardness and under-representation of the preferred groups.Rly v. 1962 SC 36. 43 special coaching and training programmes are included within the power under article 16 (4). 1963 SC 649. For example if 16 (4) is to be an explantion of 16 (1) then 16 (4) would not be controlled by 16 (1) and quantum of reservations under article 16 (4) is not required to be contained within 50 percent limit. Apparently these preferences are not reservations in the strict sense of the term. State of Mysore. If unlimited reservations were permissible .Balaji. and this vision of article 16 (4) would enable the state in making exceptional provisions for the purpose of benefitting the backward classes. 141 General Manager S. v. AIR. Vol-III.R.148 If on the other hand a broader notion of proportional or substantive equality is adopted 16 (4) would not be an exception but an explanation of article 16 (1). 146 M.Balaji. entitled “Fundamental Rights and Distributive Justice”. then formal non discrimination rule in government services has been given under article 16 (1) and article 16 (4) is simply an exception. AIR. Article 16 (4) read by itself rules out other possible ways of encouraging the backward classes in the state employment. 145 Justice Mathews articulated the concept of formal vs numerical equality. 143 M. Further if under formal equality vision article 16 (4) is taken to be an exception then the state is not authorised to choose any method for giving favoured treatement to the backward classes in the area of public employment. State of Mysore. University of Delhi.149 The departure from equality could be permitted only to the extent mentioned in clause 4 of article 16. in his address to the Evening Faculty of Law.Shiva Rao. AIR 1963 SC 649. This clause could not be read as completely excluding or ignoring the rights of other citizens. And if article 16 (4) is an exception. application of fees and minimum educational qualifications. 147 Ibid. 144 B. v. on 25th Jan 1975. Making of India’s Constitution. 142 Ibid.

In order to give relief to the backward classes of citizens. He questioned the rule 13 AA as violative of article 16 (1) and not saved by article 16 (4). The circumstances leading to the scheme were something like this.Thomas. The Court majority held that article 16 (4) is merely an illustration of article 16 (1) and as such is not controlled by article 16 (1). Reservation and Discrimination in India.Sagar. As a result of this rule . State of Andhra Pradesh. New Delhi. Justice Krishna Iyer observed. Parmanand Singh. Equality. the government incorporated rule 13 AA under the Kerala State and subordinate services Rules 1958 enabling the government to grant exceptions to the scheduled castes and scheduled tribes employees for a period of two years from passing the necessary tests. It was brought to the notice of government of Kerala that a large number of government servants belonging to the scheduled castes and tribes were unable to get their promotions from lower division clerks in the registration department. N. AIR. 149 P. The impugned scheme resulting in promotion of over sixty percent of employees of the 148 Dr. a lower division clerk.equality provisions. This also meant that quantum of reservations is not necessarily to be within 50percent limits. (1976) 2 SCC 310. 150 Devadasan v. v. Union of India. thirty four out of fifty one posts were filled up by members of scheduled castes and tribes without passing the test. 1968 AP 166. This case involved the validity of a scheme showing favour to the scheduled castes and tribes employees by exempting them from the necessity of passing the departmental test for promotion in services. The result is that the state is not confined only to the method of reservations for encouraging the backward groups in the area of public employment. 1985. 151 State of Keral v. Deep & Deep Publications.M.M.150 But in Thomas 151decision the Supreme Court by majority rejected the notion that article 16 (4) is an exception or proviso to article 16 (1). 44 preferred group was held to be excessive and not conducive to the administrative efficiency. 1964 (4) SCR 680. was not pomoted despite his passing the test.152 However the Supreme Court on appeal upheld the rule by saying that article 16 (1) permits reasonable classification just as article 14 does and as such the state could adopt any method under the former article to ensure adequate representation of the scheduled castes and tribes in public services. “ To my mind. The Kerala High Court declared the impugned rule invalid under article 16 (1).Thomas. this sub . it is free to choose any means to achieve equality of opportunity for these backward classes. The majority further held that equality of opportunity in matters of employment demanded favoured treatment to enable the weakest elements to compete with the advanced. N.

155 Ibid. This proposition was forcefully expounded in Devadasan’s case154. 1993. 154 Devadasan v. True. AIR 1993.article i. It has been noted that from the very beginning the general explanation given by the supreme Court was that article 16 (4) was an exception of article 16 (1). Constitutional law of India.Seervai. Reservations of more than 50 percent of vacancies per se were held to be destructive of the rule of equality of opportunity. It has been held that Equality postulated under the Constitution is not merely legal but real equality.M. N. A caveat has however been posted by Justice 152 H. This view of article 16 (4) has been endorsed in Indira Sawhney v. Holding article 16 (4) to be an explanation of 16 (1). 155The object of the provision under article 16 (4) was to ensure that the backwardness of the backward classes did not unduly handicap their members from securing public employment under the state and when the reservation was so excessive in character as to deny in practice a reasonable opportunity to other classes it was a fraud on the constitution. 45 . But this ruling was overturned in Thomas decision and now article 16 (4) is not an exception but an explanation or instance or illustration and as such 50 percent can not be the outer limit of the reservations. 477. justice Sawant has rationalised that equality of opportunity has to be distinguished from equality of results.M. It was laid down that a proviso or an exception cannot be so interpreted as to nullify or to destroy the main provisions and therefore the reservations for backward classes should not be so excessive as to create a monopoly or to destroy unduly the legitimate claims of other communities. it is an illustration of constitutionally sanctified classification. Union of India. Article 16 (4) need not be a saving clause but put in due to the over anxiety of the draftsmen to make matters clear beyond possibility of doubt”153. (1964) 4 SCR 680. it is a positive right and the state is under an obligation to undertake measures to make it real or effectual. The implication of this ruling was that since article 16 (4) was an exception and could not eat away the general rule of article 16 (1) the quantum of reservations could not exceed 50 percent.without mentioning the fact that this was dissenting judgment. SC. 156 Indira Sawhney v. one mode of reconciling the claims of backward people and the opportunity for free competition the forward sections are ordinarily entitled to …. Union of India. it may be loosely said that article 16 (4) is an exception but closely examined. 153 In fact Justice Krishna Iyer qoted Justice Subba Rao’s dissenting judgement from Devadasan v. Union of India156.Tripathi Bombay.e. article 16 (4) serves not as an exception but as an emphatic statement. Union of India. Various provisions of constitution show that right to equality is not a formal right or a vacuous declaration.

waiver of age requirements. Article 340 contemplates appointment of a commission to investigate the conditions of socially and educationally backward classes and such other matters as are referred to the commission.Jain. 159 157 Ibid. is imperative to maintain the balance. Article 15 (4) on the other hand lays down that the state is not prevented from making any special provision for the advancement of any socially and educationally backward classes. Interestingly. loans etc. Reservations in Educational Institutions.Sahai. race. Determination of socially and educationally backward class status is not a simple matter as sociological and economic considerations come into play in evolving proper criteria for its determination158.157 4.. The second clause of this article provides the list of scheduled castes specified in the notification issued under scheduled tribes. Nagpur. for example waiver of fees. the use of article 15 (4) has exclusively been made so far for providing reservations in educational institutions. . Article 341 provides that the President may by notification in a particular state.(1) Determination of backward class status and (2) extent or quantum of reservations. The two most contentious issues about providing reservations in educational institutions for scheduled castes and scheduled tribes is . However it may be noted that the courts are not precluded from from going into the questions whether the criteria used by the state for the purpose are relevant or not.P. races or tribes which shall for the purpose of this constitution be deemed to be scheduled castes in relation to that state. Article 15 (1) specifically bars the state from discriminating against any citizen. The expression “making any special provision” is evidently an open ended provision and government can really go on providing a whole array of facilities for promoting the interests of socially and educationally backward classes. however. Provisions for reservations in educational institutions to deprived sections of scheduled castes and scheduled tribes has been secured under article 15(4). scholarships. Judicial review . did the government prior to embarking upon solving the social problem by raising narrow bridge under article 16 (4) to enable the weaker sections of the people to cross the rubicon discharged its duty of a responsible government by constitutional method so as to put it beyond any scrutiny by the eye and ear of the constitution. it leaves the matter to the state to specify backward classes. who had emphasised that “ reservations being negative in content to the right of equality guaranteed to every citizen by article 16 (1). Article 15(4) lays down the criteria to designate backward classes. 1997. Indian Constitutional Law.3. grants. thus instead of being ruled out or restricted. 158 M. special coachings. place of birth or any of them. it has to be tested against positive right of a citizen and is a direct restriction on state power. sex. Wadhwa and Company. after due consultations with governor in a particular state specify the castes. caste. The court has a constitutional obligation to examine if the foundations of state’s action was within constitutional periphery and even if it was.

poverty. Secondly. occupations. governments are pressurised to indulge in all kinds of reservations for all kinds of groups apart from the reservations for scheduled castes and scheduled tribes and backward classes. but only speaks of classes. and that caste and clas are not synonymous.162 Thirdly backwardness should be comparable . though not exactly similar to scheduled castes and scheduled tribes. backwardness may be defined without any reference to caste. Fifthly. Sixthly. protection to one group affects the constitutional rights of other citizens maintained in public services because it is implicit in the very idea of reservation that a less meritorious person is being preferred to a more meritorious person. First the backwadness envisaged by article 15 (4) is both social and educational and not either social or educational. place of habitation. poverty alone cannot be the test of backwardness in India because by and large people are poor and therefore. Second most contentious issue as has been noted above is the quantum of reservations which has become a knotty socio-political issue of the day .159 Moosa v. several propositions emerge. large sections of population would fall under the backward category and thus the whole object of reservation would be frustrated. but it cannot be the sole or even the dominant criterion163. the . Because of keen competition for limited opportunities available in the country. Basically any reservations is discriminatory for reservation means that as between two candidates of equal merits. From several judicial prounouncements concerning the definition of backward classes. AIR 1960. 46 The question of defining backward classes has been considered by the Supreme Court in a number of cases. then the caste system would be perpetuated in the Indian society.161 This means that a class to be identified as backward should be both socially and educationally backward. Fourthly. If classification for social backwardness were to be based solely on caste. castes may be a relevant factor to define backwardness. all contribute to backwardness and such factors cannot be ignored.160 On the whole the courts’ approach has been that state resources are limited. Therefore exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests. Ker 355. The court also seeks to guard against the perpetuation of the caste system in India and the inclusion of advance classes within the term backward classes. Also this test would break down in relation to those sections of society which do not recognise caste in the conventional sense as known to the Hindu society. Kerala. As the Supreme court has emphasised164 Article 15 (4) does not speak of castes.

State of Mysore. ex majore Cautela. 47 percent.Chanchala v. P. A plain . the Supreme Court decisions on article 15 (4) had held that this article was an exception and that speaking generally. 15 (4) would not be controlled by 15 (1) and as such the quantum of reservations could go beyond 50 percent. 166 Devadasan v. AIR 1971 SC 1762. However in Thomas decision this long held position was reversed and 15 (4) and 16 (4) as well held to be not an exception but an illustration of 15 (1) and 16 (1) the effect of which was that since 15 (4) is just and illustration of 15 (1). Many deserving candidates thus feel frustrated because of reservations for the less deserving persons and they seek to challenge the scheme of reservations as unconstitutional.167 This Theory of legislative device is not tenable and can be criticised on a number of counts. 3. lists the following criticism. v. to clauses (3) and (4) of article 15 and to clauses (3). AIR 1971. 1. 162 Pradip Tondon v. AIR 1968 SC 1367. State of Mysore.M. 6. It ignores the fact that it is impossible to argue that clauses (3) and (4) of article 15 and clauses (3) and (5) of article were inserted.N. 1964 (4) SCR 680. Till Thomas165 case.Chanchala. It has not really carved out an exception but has preserved a power untrammelled by the other provisions of the article”. the majority held that reservation should be less than 50 160 See D. H. 5. reservations should be less than 50 percent.M. It ignores the scheme of article 15 and 16 and more particularly the relation of clauses (1) and (2) of article 15 and 16. 163 D. Union of India. N. SC 839.candidate belonging to the reserve quota is preferred to the one having no reserve quota.N. In Devadasan’s 166case. ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that of the power conferred thereunder is not limited in any way by the main provision but falls outside it. It ignores the fact that the words ‘nothing in this article’ appear as the opening words not only in article 16 (4) but also in article 15 (3) and (4) and in article 16 (3) and (5) and in those four sub clauses the opening words are not a legislative device. AIR 1993 SC 477. It ignore the decisions of high authority which show that the words ‘nothing in this Act’ or ‘nothing in this article’ are apt words for introducing exceptions. 165 State of Kerala v. AIR 1976 SC 490. (4) and (5) of article 16 respectively 2. AIR 1982. “The expression. 164 Indira Sawhney v. Union of India. 161 State of Andhra Pradesh v. State of U.168 It may be added in favour of the ibid argument that sub article 15 (1) and 15 (4) are parts of article 15 which appears under the group heading ‘right to equality’.Sagar. The rationale of such a turn around was articulated by Justice Krishna Iyer. 4 It ignores the legislative history of article 16 (4) which shows that 16 (4) was an exception of article 16 (1).Seervai. When the passage propounding the theory of a legislative device is examined it will be found that it is difficult to give the words in the passage a rational meaning and at any rate the theory leads to absurd results.Thomas.P.

. If any action of the state violates a citizen’s fundamental right under article 15 (1). place of birth or any of them. supra f. 80. H. Article 15 (1) confers a fundamental right on every citizen by commanding the state not to discriminate against any citizen on grounds only of religion. with which we are directly concerned. its subject matter would fall within the earlier provision. But in a section or an article. because no one can be deemed to be a member of scheduled castes if he does not profess the Hindu or Sikh religion.rerading of sub articles 15(1) and 15 (2) show that they confer fundamental rights. no discrimination could be made for example in favour of scheduled castes . Article 15 (2) is directed not only to the state but also to any person and it provides that no citizens shall. N. caste. then article 13 declares such action to be pro tanto void. And in this scheme of things a sub article conferring no right but conferring a mere discretionary power on the state is put on a higher plane than the one which confres a fundamental right. race. on any socially and educationally backward class of citizens or on the scheduled castes and scheduled tribes. In the present discussion we are not concerned with sub article 15 (2) except is so far as it reflects the scheme of article 15. Bombay. because discrimination on the ground of caste is prohibited by article 15 (1). again confers no right much less a fundamental right. This conclusion can further be tested in another way. that sub article 15 (1) and (2) confer legally enforceable fundamental right.Seervai. but merely confers a discretionary power on the state to make any special provision for the advancement of aforesaid classes169. and article 32 and 226 give him a speedy and effective remedy against the state for the protection of his fundamental rights. It would evidently be an absurdity if the part which confers merely a discretionary power is given primacy over the part which confers a fundamental right enforceable directly in the highest court of the land. first.M.Tripathi. Secondly this subordination of sub article 15 (4) to article 15 (1) is further strengthened by the fact that sub article 15 (1) confers legally enforceable fundamental right and sub article 15 (4) confers no right at all.M.n. is recognised to be an exception because. 48 disability. be subject to any 167 Justice Krishna Iyer. In any event discrimination on the ground of religion is also prohibited by article 15 (1) and scheduled castes are based on religion. sex. but for the exception. on the prohibited grounds. 168 Constitutional law of India. Therefore article 15 (4) takes out discrimination in favour of scheduled castes from the prohibition against discrimination on the grounds of caste or religion. namely. 1993. Evidently if article 15 (1) stood alone. and scheduled castes are castes. Article 15 (3) does not confer any right much less a fundamental right on women and children but merely confers a discretionary power on the state to make special provisions for them. restriction or condition with regard to the matters set out in sub clauses (a) and (b) of article 15 (2). a later provision which takes something out of an earlier provision. liability. Article 15 (4).

This means that a citizen can enforce his fundamental right against the state regardless of what is contained in sub article 15 (4).M. First because artcle 15 (4) opens 169 H.If article 15 (1) were repealed. ibid. For a sub article which confers no right but a discretionary power.M. p. Equally that the state can exercise its discretionary power under article 15 (4) regardless of what is contained in sub article 15 (1). because. with the consequences that the permissible limit of reservations could not exceed the limit of 50 percent. then article 15 (4) must fall with it or stand impliedly repealed because. There is no third alternative which would describe the relation of article 15 (1) and 15 (4) unless it is said that article 15 (4) has been enacted ex majore cautela. N. apart from article15 (1) there is nothing in the constitution which prevents the state from making a special provision for the advancement of the classes mentioned in article 15 (4). Therefore it follows that the two sub articles are not independent. And similarly the state cannot exercise its discretionary power to discriminate against a citizen. the citizen has a fundamental right under article 15 (1) not to be so discriminated against.Seervai. But to say this is to say that sub article 15 (4) was not necessary and that the result would have been the same even if it had not been enacted or was struck out.Thomas decision which has been noted above in detail holds that 15 (4) and 16 (4) are not exceptions .557. Secondly the statement that sub article (1) and subarticle (4) are independent of each other leads to an internal contradiction and to an absurd result. The above analysis of article 15 supports the view consistently taken by the Supreme Court prior to Thomas decision. because such a provision would violate the prohibition of article 15 (1). Can it be said that sub article 15 (4) is the dominant article and 15 (1) is subordinate sub article ? To ask this questions is to answer it in the negative. But if sub article 15 (4) cannot be treated as the dominant provision can the two sub articles be treated as indepndent of each other ? the answer is “no”. 49 with the words “ Nothing in this article shall prevent the state…” which shows that article 15 (4) is in some way related to or connected with article 15 (1). then what is the relation of article 15 (1) and 15 (4). that is by way of abundant caution. cannot be described as occupying a dominant or primary position over an enforceable fundamental right. must be ascertained. But if the terms of sub article 15 (4) were struck out. It has to be noted that since every reservation is a permission of discrimination in reverse . For to say that sub article 15 (1) is not in any way affected by sub article 15 (4) and vice versa. the state would have no power to make special provision for the advancement of the classes mentioned in article 15 (4). This leads to the self contradictory and absurd result that a citizen cannot exercise his fundamental right not to be discriminated against on the ground of caste or religions if the state can discriminate against him on the ground of caste and religion in favour of scheduled castes.

1994. which laid down that the claim of the members of the scheduled castes and the scheduled tribes shall be taken into consideration. Patients who are sent to the hospitals are treated by these students who enroll for such speciality courses. Those who have specialised medical knowledge in their chosen branch are able to treat better and more effectively. An instructive illustration of such a case can be found in a number of cases occurring almost every year where candidates who have scored as low as 20 percent marks are admitted into coveted courses and those who have scored above 60 or even 70 percent marks are left out simply because they happened to belong to forward castes170. New Delhi. consistently with the maintenance of efficiency of administration. The element of public interest in having the most meritorious students is also present at the stage of post graduate level in medical specialities like superspecialities.the quantum or the extent of reservation assumes great importance for the citizen. At this level an ability to assimilate and acquire special knowledge is required. as these entrants occupy posts in teaching Hospitals. Such left out candidates would naturally feel a deep sense of resentment and injustice at being passed over in favour of candidates who have scored very low in entrance test. Supreme Court in a rather recent case has taken note of 170 Jan-Satta. On the other hand those who gets admission into such courses are not able to make through the relevant courses for a number of years and prove to be drain for the state’s scarce resources. in the making of appointments to services and posts in connection with affairs of the union or the states. for the public generally and for the state as well. These facts do not disappear because it is said that to redress a great historical wrong done to a section of Hindu society the individual must put up with the feeling of resentment and injustice and the public and the state must put up with a less efficient public service at least for a reasonable period of time. 50 article 335 in the interpretation of article 15 (4) and has ruled that selection for the post graduate course in Medical sciences should be inconsistent with article 335. Therefore selection of the right calibre of the students is essential in the public interests at the level of specialised postgraduate education. In view of this supervening public interest which has . 13th June. It was for the purpose of avoiding this contingency of getting the inefficiency introduced in the services that article 335 was provided in the Constitution of India. The injury to the public is that they have to deal with a less able public servant and for the state it is a less efficient public service.

the supply of expert advice as to how to improve the yield of land. In relation to education itself. Parmanand Singh. It is unfortunate that it has not been utilised for other purposes.to be balanced against the social equity of providing some opportunities to the backwards who are not able to qualify on the basis of marks obtained by them for post graduate learning.4. how vast and varied are the powers at the disposal of the state it if really takes care to improve the lot of scheduled castes and scheduled tribes. if any. The underlying assumption of the interpretation of article 15 (4) so far appears to be that unless posts. and backward classes. has enjoined the “sovereign. provisions for marketing the produce and the like171. The Preamble to the Indian Constitution of India. It is also for an expert body such as the medical council of India. under article 15 (4) the state can give free education. but fall within the wide expression “special provisions for the advancement of…” It is overlooked that special provisions include every kind of assistance which can be given to backward classes and scheduled castes and scheduled tribes to make them stand on their feet or as is commonly said to bring them into the mainstream of Indian life. the controversies of reservations. reservations and discrimination in India. to lay down the extent of reservations. merit scholarships and the like. 171 Dr. free text books free uniforms and subsistence allowance. It cannot be said that there are no other methods to consider by which that status can be improved because to say this is to overlook the wide scope of article 15 (4).” Is an open ended and very wide provision. including promotional posts are reserved for backward classes in public employment. Once this is realised. starting from the stage of primary education and going right up to University and post graduate education. 51 4. which more often than not are accused to be governed by political considerations shall lose much of their shine. or of impairing the efficiency of administration for the purpose of providing protective discrimination. The language of article 15 (4) shows first that reservations as such are not expressly mentioned in article 15 (4). 1985. Equality. Those measures would also include schemes for training the backward classes to pursue trades or small business which would fetch a reasonable income. It has been stated above that the expression under article 15 (4) “Any special provision for the advancement of …. . Illustratively those measures would include grant of land either free or on nominal rent the supply of seeds and agricultural implements. of preferring less meritorious to the more meritorious one. Lowering of the marks. are to be consistent with the broader public interest in having the most competent people for specialised training and the competing public interest in securing social justice and equality. socialist. Preferences in Resource Distribution. their status can never be improved. Deep & Deep Publications New Delhi.

Shukla. improve public health. . 175 Article 38 of Indian Constitution. to secure to all its citizens. 1975. 176The state shall endeavour to secure the health and strength of workers. it must be noted that the provisions included in Directive Principles of State policy are not enforceable in the courts. raise the level of nutrition and standards of living. and free and compulsory education for children.secular172.179 The state shall take steps to organise village panchayats. and in particular of the scheduled 172 The word Secular was added in to the Preamble by 42nd Amendment. social economic and political justice”. Before we note how the reconstruction and transformation of Indian society is intended to be realised.175 Wealth and its source of production shall not be concentrated in the hands of the few but shall be distributed so as to subserve the common good. however the principles laid down in this part of the Constitution are fundamental in the governance of the country. Lucknow. The State shall secure a social order in which social. These provisions may better be described as the active obligations of the state174.180 promote the educational and economic interests of the weaker sections of the people. just and humane conditions of work and living wage for workers 177a uniform civil code178. Constitutional Law of India. 176 Article 39 of Indian Constitution. which command the state to remove existing socio-economic inequalities by special measures. to education and to assistance in cases of want.181 separate the judiciary from executive 182and promote international peace and security.183 Article 46 which specifically refers to the obligation of the state towards the weaker sections and scheduled castes and scheduled tribes etc provides that “The state shall promote with special care the educational and economic interests of the weaker sections of the people. organise agricultural and animal husbandry. economic and political justice shall inform all the institutions of national life. Easern Book Company. Political justice is ensured by reserving seats and ensuring a minimum representation to deprived and exploited sections of society in the legislatures and other political bodies. the right to work. democratic Republic of India. 173Social and economic justice is intended to be achieved by the state in pursuance of the Directive Principles of state policy contained in chapter IV of the Constitution. 173 See Articles 330 to 334 of Indian Constitution. 174 V. And there shall be adequate means of livelihood for all and equal pay for equal work.N. 1990. All these provisions are intended to promote the constitutional scheme to secure equality. These provisions set forth a programme for the reconstruction and transformation of Indian Society by a firm commitment to raise the sunken status of the pathetically neglected and disadvantaged sections of our society.

Constitution itself talks about prohibitions of forced labour under article 23. These distributive schemes are accompanied by efforts to protect the backward classes from exploitation and victimisation.177 Article 41. 183 Article 51. have been established all over the country. . Action Plans and Amelioration Programmes. various land re-distribution and allotment programmes have been initiated. 1987 which was meant to provide legal aid to all those who cannot afford access to legal services either due to poverty indigence or illiteracy or backwardness. who are mostly from scheduled castes and scheduled tribes. 179 Article 45. 42 and 43 of the Constitution.5. Bar Councils and law Schools. In the third group of preferential policies aimed at protective discrimination are various action plans for the removal of incapabilities on the part of the underprivileged groups. In recent years there have been strenuous efforts to release the victims of debt bondage. 178 Article 44 . Anti-untouchability programme is another area of governmental concern. in pursuance of which Bonded Labour Abolition Act was passed in 1976. The enforcement of any disability arising out of untouchability shall be an offence. In pursuance of these directives . Constitution itself abolished untouchability vide article 17 which lays down that “ Untouchability is abolished and its practice in any form is forbidden. 4.184 However the government was so determined to effect land reforms that the right to property which was provided under article 31 of the constitution was modified six times and finally was done away with for the purpose of avoiding litigation in land reform measures of the government185. 180 Article 40. as the land reforms laws infringed the right to property of the land owners. 52 castes and scheduled tribes and shall protect them from social injustices and all forms of exploitation”. This ensued a spate of litigation in the courts. Legal Services Authority Act. Apart from this various health care programmes such as primary health centres all over the country have been established and various scholarships grants. has been a big success and apart from legal services authorities at the central and state level various legal aid committees have been successfully and effectively working at the district and taluka level. loans etc for the deprived sections of the population have been contributing their bit towards the socioeconomic transformation of the country. In fact so great was the enthusiasm of the government in this particular respect that hundreds of land reform laws were passed in the first five years of Indian Republic. 182 Article 50. 181 Article 47 and 48. For the purpose of providing legal aid to the poor and indigent a vast network of legal aid programmes involving judicial officers.

The word refers to those regarded as untouchables in the course of historical developments in this country. information. AIR. but in substance it is special undertaking to remedy the disadvantaged position of the untouchables. and the security. The criticism that these policies have evoked and the debates that take place in India today. which can be said to be sui generis. SC 1116. 53 Anti-untouchability propaganda and the Protection of Civil Rights Act. However an impartial observer of the Indian scene may not have difficulty in concluding that the contemporary discrimination policies have vigorously been followed in post independent India. It may be summed up by way of general observations that the present model of compensatory discrimination policies presents a very perplexing conundrum. Lot of frustration amongst those who have been deprived off the jobs. represent the vivacity of the Indian Civilisation. patronage and prestige that goes with government job in India. which they would have got in the absence of preferential policies. 185 44rth Constitutional Amendment Act of 1978 abolished the Right to Property from Indian Constitution. underlining the differences and leading invidious discriminations. undermining the efficiency of administration. 5. In such a system nothing can remain sans controversies. XXXXXXXXXXXXXXX . General Observations. making the beneficiary groups dependent and blunting their development and initiative etc could be said to be costs of these preferential policies. And they have produced a substantial redistributive effects as well. Reserved seats provide a substantial legislative presence and swell the flow of patronage. 184 See Kameshwar Singh v. 1962. such as their suffering from an epidemic contagious disease or on account of social observance such as are associated with birth or death etc. and connects the past with the future with an unbreakable continuity of the present. It is noticeable that the word “Untouchability” is not to be construed in its literal sense which would include persons who are treated as untouchables either temporarily or otherwise for various reasons. wherein the advantages and disadvantages. In fact the costs have been enormous. The reservation in jobs and educational institutions has given to a sizable portion of the beneficiary group earnings.punishable in accordance with law. attempts to relieve untouchables from the social disabilities under which they have suffered. These measures may not strictly be called compensatory discrimination in the formal sense of the term. hopes and frustrations are indisolubly bound to one another. attention and favourable policies to scheduled castes and scheduled tribes. State of Bihar. However this has not gone without costs. On the other hand Untouchability is to be understood in the sense of a practice as it has developed historically in India.

2. Marbury v. So if a law be in opposition to the constitution. 4. Stanford University 1. disregarding the law. Those who apply the rule to particular cases. 177–78 (1803). for example.CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT John E.S. Ferejohn* It’s already been said several times that the American model of judicial review is spreading like wildfire—Chris just said it. disregarding the constitution. the courts must decide on the operation of each. so that the court must either decide that case conformably to the law. Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution. KOMMERS. POL. Munro Professor of Political Science and Senior Fellow. 185–86 (1942) (explaining that Austria’s 1920 constitution prohibited ordinary courts from reviewing constitutionality of statutes. one third by Parliament. If two laws conflict with each other. in CONSTITUTIONAL REVIEW AND LEGISLATION: AN INTERNATIONAL COMPARISON 109. The Hoover Institution. if both the law and the constitution apply to a particular case. G. See DONALD P. The United States is virtually unique in having judicial review. 137. See Hans Kelsen. see also MARY L.. 183. For the origins of the American system of judicial review. or conformably to the constitution. 3. if judicial review means a system in which ordinary judges can review and strike down legislation. must of necessity expound and interpret that rule. It is emphatically the province and duty of the judicial department to say what the law is. See Alessandro Pizzorusso. THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 3–4 (1989) (West Germany’s power of judicial review reserved for special politically-appointed tribunal rather than multi-jurisdictional high court of legal technicians). 4 J. the court must determine which of these conflicting rules governs the case. one third by President. John Sexton started the panel with it—and it’s not really correct.1 Other countries that have adopted constitutional review have taken great pains to exclude ordinary judges from having any part in it. and one third by senior judiciary). This is of the very essence of judicial duty. 5 U.2 and it was true in Germany3 and Italy4 after World War II. task left to special Constitutional Court (Verfassungsgerichtshof)). see. 111–14 (Christine Landfried ed. Constitutional Review and Legislation in Italy. It was true in * Carolyn S. VOL- . Madison. Id. 1988) (explaining that fifteen members of Italy’s Constitutional Court are specially and politically appointed. This was true at the time of the origination of the new model of constitutional review in Austria after World War I.

8. 6:49 Spain5 and Portugal6 after the collapse of their authoritarian governments. See Francisco Rubio Llorente. COMP. J. INT’L & COMP. Judicial Review in the New Nations of Central and Eastern Europe: Some Thoughts from a Comparative Perspective 54 OHIO ST. civil servants or attorneys—in all cases. See Stephen Gardbaum.8 Why is it that the form of constitutional review spreading like wildfire is not the American form. 6.49 50 LEGISLATION AND PUBLIC POLICY [Vol. CONSTITUTIONAL POLITICS IN ITALY: THE CONSTITUTIONAL COURT 15 (2000) (identifying Kelsen-inspired. Constitutional Review and Legislation in Spain. L. See generally Rett R. 127–31 (Christine Landfried ed. 714–15 (2001) (claiming that judicial review in countries such as Portugal is polar opposite of American system). The first took place right after World War II in Germany and Italy. For a more detailed analysis. the third wave followed the collapse of the Soviet Union about ten years ago. and never were ordinary CANSEK. 5. Lundsgaard. There have been three distinct waves of constitutional adjudication in post-war Europe. In every case. at 715–16 (claiming that Central and Eastern European countries have eschewed American model of constitutional review). 585 (1993) (“To date. pretty much.”). government attorneys. see JOHN FEREJOHN AND PASQUALE PASQUINO. the nations adopted the same model. and to lesser extent American system. L. 49 AM. See id. 7.J. And it was true after the collapse of Soviet hegemony over Eastern Europe. The choice was always what I shall call the Kelsenian model: specialized constitutional courts.. 707.9 The second wave was after the collapse of the Spanish and Portuguese authoritarian governments.7 In every case we see that American style judicial review was rejected in favor of something different. L. interwar Austrian system. in CONSTITUTIONAL REVIEW AND LEGISLATION: AN INTERNATIONAL COMPARISON 127. 3 CARDOZO J. 1988) (explaining that Magistrates of Spanish Constitutional Court must be “either magistrates. and of the Greek dictatorship about quarter century ago. Robert F. . legal professionals of recognized competence with 15 years of practice”). Fundamental Constitutional Rights in the New Constitutions of Eastern and Central Europe. university professors. 73 (1995). Ludwikowski. The New Commonwealth Model of Constitutionalism. populated by law professors. the Austrian model has also been the most popular choice of new nations in Central and Eastern Europe. We need to pay attention to that basic fact. as inspiration for postwar judicial review in Italy). 559.10 And. but is another form altogether? Why is it that the American style has not been very popular? I think we can get answers to these questions by asking about the circumstances that have given rise to constitutional adjudication over the past half century. Utter & David C.

at 715. is post-authoritarian systems. see also Klaus von Byne. of course. 15 (describing establishment of constitu. there exists a characteristic circumstance of distrust.DELIBERATIVE INSTITUTIONS (W. the Netherlands.. supra note 4. Schmitt et H. or indeed. See Pasquale Pasquino. at 1. an Austrian legal theorist. By contrast. One thing that post-authoritarian systems have in common is that the judges that are still on the bench are implicated. See VOLCANSEK. supra note 6. the wildfire. and the nations previously part of the Soviet empire. The Genesis of Constitutional Review in Parliamentary Systems. is that in every case I mentioned. supra note 4. 9. obviously. there’s actually a secondary circumstance of distrust arising naturally in post-authoritarian settings. Kelsen. without a written constitution. deserves credit for inventing the model of constitutional adjudication that has become popular over the past few decades.11 No country ever adopted the American practice of judicial review. at 15 (Kelsenian model “rejected the US style of R decentralized judicial review and advocated instead a special institution that alone held the power of constitutional review”). Broadly speaking. Sweden—there was no move to create new constitutions. Gardien de la constitution ou justice constitutionnelle? C. Hans Kelsen. in CONSTITUTIONAL REVIEW AND . and that is distrust of the lawmakers as well of the judges. and also in Spain.13 And. In other words. R 2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 51 judges permitted to participate. forthcoming 2002) (on file with author). any real constitutions at all. Greece. 10. in 1789 ET L’INVENTION DE LA CONSTITUTION 141–52 (Michel Troper & Lucien Jaume eds. In such circumstances. in the old (stable and successful) democracies—Britain. 1994). 12. See VOLCANSEK. the answer for nations that have adopted constitutional review is one that was developed after World War I. New Zealand. an eminent young legal scholar. The home of contemporary constitutional adjudication.R tional review in Axis countries after World War II). there is little need for constitutional courts. The question is how best to do that.. That was the case in Germany and Italy. Portugal. a formerly authoritarian system adopted a new constitution and provided for constitutional review in order to enforce constitutional provisions. of course. there is a natural desire to place both the positive lawmakers and the law enforcers under constitutional control. Kelsen.12 Why? Part of the answer. Cambridge Univ. happened 11. See Gardbaum. Press. in the practices of the previous regime. Sadurski ed. These were all cases of failed authoritarian systems with no recent history of democracy or liberty. to some extent. The citizenry in such circumstances have every sociological reason to be suspicious of how those officials would go about their business. In fact. and in most cases the rejection was explicit and decisive.

52 LEGISLATION AND PUBLIC POLICY [Vol. . REV. 1988). Gardbaum. regulating the relationship between the national and provincial governments. LOUIS-WARSAW TRANSATLANTIC L. Upon his death at the age of 92. He recognized. L. Known both as an excellent jurist as well as an exceptional human being. Of Jewish descent. . too. at 759–60 (noting shift away from American R model of constitutionalism in British Commonwealth).”). Cf. Preface. see also Albert A. In his early 60s. Kelsen . 15. see also Zdzislaw Czeszejko-Sochacki. . 6:49 to be a staff member to a committee charged with framing a new constitution. J. Hans Kelsen dedicated his life to scholarship and the development of the law. Kelsen moved to the United States. where he continued to distinguish himself. 391. 609. based on 18th and 19th century ideals and significantly different from its American archetype. 9 EUR. 391–92 (1998). Kelsen was forced to flee to Geneva in 1933. J. in the Department of Political Science. In the case of post-World War I Austria. The Ori. 15 (“[T]he European model of judicial review. most notably in the area of International Law. 610 (1971) (acknowledging Kelsen as principle drafter of Austrian Constitution). at 186. 15.J. Berkeley. including serving as a professor at the University of California. 1920 Austrian Constitution. 368. Kelsen later moved with his family to Vienna.16 Kelsen recognized the need for an institution with power to control or regulate legislation. Ehrenzweig. Born in Prague in 1881. . 59 CAL. but benefited even more. in other words. his legacy included the publication of almost 400 works and a career that had not only touched many.LEGISLATION: AN INTERNATIONAL COMPARISON 21. See Nicoletta Bersier Ladavac. often pioneering new concepts in the international arena. INT’L L. that constitutional control essentially involves legislative activity. 1996 ST. 9 EUR. that constitutional adjudication involves legislating as well as judging. 14. Kelsen also earned an important place for himself in the history of his country as co-drafter of the Austrian Constitution of 1920. supra note 6. unquestionably derives from the Austrian Constitutional Court established by the . In 1906. 13. Kelsen received a doctorate in law and went on to become a professor. The processes by which constitutional adjudicators make or declare general rules are different from those employed in ordinary legislatures. Kelsen and His Circle: The Viennese Years.R gins of Constitutional Review in Poland. 16. Hans Kelsen (1881–1973): Biographical Note and Bibliography. and navigated Europe’s tumultuous political circumstances to study. teach. and research the law. . 374 (1998).. the concern was mostly for maintaining federal arrangements. 14 and was asked to draft the section of it dealing with constitutional review. INT’L L.15 And that draft constitution created a new institution—a constitutional court of professors—that would have the power to control ordinary legislation. establishing and editing the Austrian Journal of Public Law. Kelsen. supra note 2. Clemens Jabloner. He recognized. 29–30 (Christine Landfried ed. that is.

the job of the judiciary is to enforce what the legislature mandates. as it has come to happen. . the European 17. mixed government. Cf. and Kelsen didn’t wish to undercut it. . And.17 It was the model in which the people and their representatives became the sole source of governmental authority. As an expert on constitutional law. Kelsen formulated the sixth main part of the Constitution. Jabloner. Austria thus introduced a specialized and functional constitutional jurisdiction for the first time in legal history. legislative authority remains superior to executive and judicial authority. Now. this model is accepted throughout most of Europe. Kelsen was of course writing after the age of democratic revolution. and which regulated the product of the legislature. this is the new model. constitutional judges as they function now. which covers the organization and procedures of the Constitutional Court. some nations retained the outward (and sometimes the inward) form of monarchical or. this body regulates the product of the rest of the government as well. supra note 6. a new model of government had become dominant. Secondly. administrative production. That is their position. was the dominant model of constitutionalism throughout the world. incidentally. Insofar as this new body exercises legislative authority. a constitutional court—which stood outside the model of parliamentary supremacy. want to maintain the place of the legislature within the new Austrian constitutional system.developed the theoretical underpinnings of constitutional jurisdiction as a constitutional option and defended it against the critique of German constitutional law in particular. for example. in Europe and elsewhere. Throughout nineteenth century Europe. the executive is responsible directly to the legislature—it remains in office only as long as it can command a majority in the legislature. which we may call the model of parliamentary sovereignty—one in which the parliament is superior both to the judiciary and to the executive. Austria. . and this involved some check on the power of the legislature itself. And. regulate legislative production.18 This model of parliamentary sovereignty didn’t succeed everyplace of course. Gardbaum. He did however. supra note 15. resisted it until after World War I. better. R 2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 53 and the considerations and arguments taken into account are different. So. particularly with respect to the issue of individual rights and . and judicial action. but constitutional adjudicators are still legislating. So. and it became accepted as well after World War I in Austria. Kelsen’s innovation was to invent a new body—a legislative body. as exemplified not only by the British doctrine of parliamentary sovereignty but also by the French doctrine that acts of the legislature are the supreme expression of the peoples’ general will. In that system. at 374. the model of legislative R supremacy. at 713 (“Prior to 1945. and insofar as its powers are traceable to the people (because its members are politically appointed).

and Can We Get It Back?. was not restricted. at 185 (“Before the Constitution of 1920 . who are professional economists. supra note 2.” (footnotes omitted)). (“[T]he sovereignty of Parliament means that no court has the power to question the validity of an Act of Parliament. our legislature (Congress and the President together) have decided that kind of policy is best hived off away from political processes. I think it is useful to think about it as a new model. When economists and bankers. See id. enforcement. 54 LEGISLATION AND PUBLIC POLICY [Vol. it suggests that the way Waldron frames the debate in his book. The administrative agencies are many times saddled with vague mandates from the legislature and are asked to perform duties that are a combination of rulemaking.civil liberties. 19. the supreme law of the land.20 and that I think most of the panelists have largely accepted. . see also . For these reasons. a context sensitive to certain kinds of normative arguments which might not be given enough play in a different kind of process. 15 AKRON TAX J. This is a common choice in designing administrative state institutions. because it allows us to see more clearly the attractiveness of Kelsen’s “solution” to the problem of regulating democratic processes. 75–76 (2000) (“The general expansion and complexity of governmental regulation has caused the legislature to rely on outside expertise in many areas of the law in which the legislature cannot itself be expert. 69. and there are powerful normative reasons why that should be the case. that is. . Chris Eisgruber rightly pointed out that legislation can and does happen all over government. The Commissioner’s Clear Reflection of Income Power Under § 446(B) and The Abuse of Discretion Standard of Review: Where Has the Rule of Law Gone. [t]he power of the R courts to pass on the legality and hence on the constitutionality of ordinances . are put on that body and insulated from other forces.19 So. Think of heavily technical legislation requiring special expertise and academic discipline (for example.”). Our politicians. given a high degree of insulation from those processes.”). administrative agencies have been relied upon to take on a large amount of the responsibility for governmental regulation. See Jennifer C. only it is in a specialized institutional context. 18. and made sensitive to expert inputs.”). what they are doing is legislative in nature. One way to put Kelsen’s key idea is to distinguish between legislation and a legislature. that kind of policy made by the Federal Reserve Board). . Root. including judicial institutions. looking at the matter this way. A legislature is one institution that can produce legislation—general rules of prospective application. and adjudication. 6:49 model of constitutional adjudication. see also Kelsen. It is not a matter of some foreign elite from Mars taking over the judiciary and imposing itself on a functioning legislature. . Congress’ resource limitations make it difficult to efficiently and effectively legislate meaningful rules. is not quite right.

how much to judges? And. 345. from the standpoint of constitutional design. or from making the European choice that I have described above: a specialized body of politically appointed law professors to control the operation of the ordinary judiciary. But. to establish an insulated institution. “the people. through ordinary statutes. we should ask whether there is anything in Waldron’s book that would preclude the people from making their choice one of American-style judicial review. They might choose to do so through ordinary statutes—as . They might decide that fourteen years is good term length. 28 WAKE FOREST L. “No. and that meetings ought to be closed to the public and proceedings kept secret. and that not all appointments should be made by elected politicians. LAW AND DISAGREEMENT (1999). operate better or worse than a less insulated institution? By the same token. it does seem to me that the American model is easier to reject on democratic grounds than the European one.”).” organize and distribute legislative power? How much of it shall be allocated to the parliament. It seems to me a better way to look at the issue: how shall we. 20. so that the institution will be more likely to act as the people would want it to over the long run. the Sentencing Commission. how much to administrative agencies. it’s not so clear that there is a reason to argue against the people choosing to allocate insulated authority of this kind to judges. REV. Frase. so constituted.Richard S. 2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 55 Rather. must decide how to allocate legislative authority among various governmental entities. while insulating the process from the distortion of political pressures. Waldron’s argument in the book suggests that we might be concerned that a court. the people themselves may very well think it undesirable to have a democratic pedigree when it comes to occupying a seat on the Federal Reserve Board. legislature. democratic pedigree is a complex issue when considering the exercise of legislative power. you can’t do that. and administrative state? Should anything cause us to stand up and say. Whether they are right to do so or not is an issue of comparative institutional performance. In practice. the people. But as Chris Eisgruber indicated in his example of the Federal Reserve Board. Does the central bank. The Role of the Legislature. and Other Officials Under the Minnesota Sentencing Guidelines. In other words. what are the appropriate terms of debate that will govern and criticize that allocation? From this standpoint. you can’t possibly allocate that portion of legislative authority to this particular institution”? The answer to this question is not obvious in either case. They might accept these strictures to ensure what they see as an appropriate amount of insulation. however constituted. 368 (1993) (“The creation of an independent commission to draft sentencing guidelines has been recognized as having the advantage of allowing sentencing policy to be more expertly crafted. lacks democratic pedigree. the people may very well choose. See generally JEREMY WALDRON.

S. § 1 (authorizing Congress to establish isolated federal courts.”). I doubt that the issue as to how the people ought to allocate legislative authority is going to be settled in the abstract. e. but rarely permit reappointment.23 Because and shall.g. seven years. So. Amy J. a judge will serve for ten years. in republican government.21 21. and in Slovakia for seven years. nine years. at stated Times. 6:49 Or the people may resort to constitutional innovations to achieve the same purposes. is the idea that there ought to be some checking institution that stands over the actual legislature. What has spread like wildfire. That is the way I understand the European choice to reject the American model of judicial review in favor of the Kelsenian model. 286–87 (1998) (Polish Constitutional Tribunal judges may only serve one term). 24 (2000) (“[I]n Bulgaria.J. L. in Poland.when they create new federal courts. III. this is a choice made by the people to regulate their own political processes. First. basically. Which institutions are doing a good job? Which aren’t doing a good job? What’s a good reform to try? Of course. The Protection of Human Rights in the New Polish Constitution. Either way. in Belarus for eleven years. 10 AM. the tenure of justices was eight years. Lithuania.. this issue is more appropriately decided—insofar as it is settled at any moment in time—by making practical judgments about how different institutions function. receive for their Services. in the Czech Republic and Ukraine for ten years. Ludwikowski. Separation of Powers in PostCommunist Government: A Constitutional Case Study of the Russian Federation. 1391 (1995) (twelve year term for Russian Constitutional . a Compensation. 56 LEGISLATION AND PUBLIC POLICY [Vol. & POL’Y 1365. INT’L & COMP. Rather. Kelsenian. The European model differs from the American one in several respects. And. at least after the collapse of authoritarian regimes. INT’L L.22 They provide long terms. J. Romania. model. and Hungary justices are elected for nine years. Rett R. or enlarge their jurisdictions. 22 FORDHAM INT’L L. U. and over the government. Constitutional Culture of the New East-Central European Democracies. members of which “shall hold their Offices during good Behaviour. Weisman. 1. art. But we should also recognize that different nations have made very different choices as to how to check the legislature. one feature of these constitutional courts. over the judiciary. see also Ryszard Cholewinski. which shall not be diminished during their Continuance in Office”). people won’t agree on the answers to these questions—that’s why they need to be settled politically. Comment. J. and was extended by the 1997 Constitution to nine years. some relatively longish term and then leave the court. U. not true of the American judiciary. in Albania for two years. 236. this is a valuable feature that many democracies seem to have embraced from very different paths. and we need to respect that. So. See. 22. 29 GA. the Europeans have rejected the American model of judicial review in favor of another. and especially. CONST. is that they do not give lifetime tenure to new judges. as I have argued.

Florida. Justices may be appointed who are acceptable only to the Republicans or only to the Democrats. for the European practices. while these judges are appointed politically (as are those in the United States). a prospective justice must garner the votes of two thirds majorities in both chambers of parliament (Bundestag and Bundesrat). A municipal court judge in Poughkeepsie— no problem. appointed by President Reagan.pdf (last visited Nov. President Gerald Ford appointed John Paul Stevens. 17. available at http://a257. Thus. We have a system in which. Contrast that with the American system. but did not appoint any Supreme Court Justices. ideologically or jurisprudentially. American court appointments can be fairly extreme. 23. as none retired during that period.supremecourtus. not even the voters. who began serving on December 19. Even if we’re going to have judicial review. and the next person elevated to the Supreme Court was Sandra Day O’Connor. In other words. 1981. nearly all of the constitutional judges tend to have moderate judicial viewpoints.net/7/257/2422/ 14mar20010800/www. See Ludwikowski. And as long as the president has a majority in the Senate. Third. There is less possibility of a drift of the court away from where the political branches are. 1975. A fourth special aspect of the American style of judicial review is that any judge can review statutes.Court judges). As a result. because of fixed terms. supra note 22. she can simply strike down the law. You don’t get a situation where. There is much to be said. all the major political formations must agree on a new appointment. I think. let’s say. Second.akamaitech. 2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 57 there’s no question of seeking reappointment. For example.24 The makeup of the European courts tends to track election returns more closely than the makeup of the American courts does. some guy might happen to be elected by the voters of. judges have no particular reason to kowtow to those in power. as with Jimmy Carter. the counters of Florida [laughter]. The American process will therefore result in Justices pretty far in viewpoint from the “median” Senator. and then he takes office. to get appointed to the German Federal Constitutional Court. who ascended to the Court on September 25. Carter served from 1977–81. Actually. European constitutional judges retire regularly. That’s ex24. he has a pretty good chance of getting an appointment on the Supreme Court who was acceptable only to the members of his own party (so long as the other party didn’t have the spine to actually filibuster). . these appointments tend to be made in a way that requires assent by the majority political factions.g. it seems a good idea to move in the direction of the European processes.gov/about/members. See MEMBERS OF THE SUPREME COURT OF THE UNITED STATES. there were no Supreme Court appointments.

exams are required to become a judge and French judges most often come from the Judicial School.S. Judges are really just civil servants who join the judiciary right out of law school and remain within it throughout their careers. Once in the system they move automatically through the various stages—Tribunale. South America. 395 (2000) (“In Germany and France.g. and Cassazione— as they become more experienced. CONST. Invoking the U. there is almost no exterior influence at all. Ewing. 6:49 actly what the Europeans didn’t want: Of course.26 They are bureaucratic appointments. 21 FORDHAM INT’L L. A Theory of Democratic Adjudication: Towards a Representative. Jason Marin.” (citations omitted)). art. in their systems. without frequent dissenting opinions. with limited tenures. it’s automatic. including those in Latin America. 27 Europeans have rejected that aspect of American experience as well. In that model. Courts Too. Attorney-Client Privilege: Japanese Corporate Quasi-Lawyers Deserve Protection in U. and countries that were their colonies. 1558. the 25. Germanic countries such as Germany. by competitive examination. graduates enter the magistracy as a career. 27. See. instead..”). The European rather than the American model seems to me to be the choice that future constitutional democracies will tend to make. So perhaps it is not surprising that Europeans are suspicious of judicial review when. Accountable and Independent Judiciary.J. INT’L L.S. the United States has an extremely rigid Constitution. It is surely more difficult to amend than any other national constitution. Italy.97 (1998) (“Judges in civil law countries have little or no advocacy experience. e. e. And fifth. 18 WIS.D. that review can be exercised by a twenty-five year old with a fresh law degree. for more flexible constitutions and for specialized constitutional courts made up of judicial moderates. 1574 n. They have opted. more or less by consensus. Austria. Attacking Corruption in the Judiciary: A Critical Process in Judicial Reform. Their justices are seldom public figures with articulated public identities and recognizable voices. Instead they are appointed as judges directly out of law school or equivalent educational body. and French Africa. as in Italy. 720 (2000) (“In Italy as in other countries. K. 58 LEGISLATION AND PUBLIC POLICY [Vol. REV.”). perhaps an unusual arrangement for those of us schooled in the common law.25 In many countries.J. There. Spain. Civil law countries include France.S. Belgium. 708. ordinary judges in Europe are appointed and promoted bureaucratically. See U. Their courts tend to work in closed proceedings.. 26.g.. having sat and passed the entrance examinations. and are therefore very insulated. Entrants must be over 21 but younger than 40. V (amendments can be proposed by two thirds of both . corte d’appello.2002). See. 353. They are rarely ideological apologists. 38 ALBERTA L. and the Netherlands are also civil law countries. with no incentives to be responsive to politicians in place. graduates may choose a judicial career. Maria Dakolias and Kim Thachuk.

Houses or by the legislatures of two thirds of the states calling for a constitutional convention. and maybe realize that our system can be improved to make it more responsive to democratic forces than is currently the case. and recognize that our system is but one way. I think. these two functions are commingled. 2001) (“[M]any nations allow constitutional amendment through a process that is far less arduous than the American one . That is. Of course. CONSTITUTIONAL LAW. they decide cases between particular litigants. First. Doctrine Of Separation Of Powers And Working Of Three Organs Of The State Introduction . other nations. for example.”). But I want to make the following simple distinction. . We could fruitfully pay some attention to these European examples. if we’re going to have a system of constitutional review. it’s a matter of saying that we should pay attention to what has gone on in the world in terms of constitutional adjudication. however. judges do two things. that is what makes the institutional design question hard. ET AL. they judge disputes. that the American prescription of lifetime tenure for judges is not such a great answer. . And maybe we ought to think differently about the modes of protection of judges. 72–75 (4th ed.). it must be ratified by three fourths of the states. . From my point of view. Our people have every right to have chosen the institutions and practices that we have chosen. other countries. On the other hand—this is not so much a criticism of American judicial practice. Maybe the Europeans are right about restricting it more than we do and organizing its exercise differently. Judges make law while deciding disputes. It is not so obvious. to implement this idea. STONE. that the second lawmaking function requires or justifies the same degree of insulation. Paying attention to the European model would also help us to think critically about how widely we really want judicial review authority to be distributed in the judiciary. I don’t think I have time to go into great detail about this. The first function—deciding disputes among litigants—requires a pretty high degree of insulation. But I think we should probably be willing to learn from the experience of others. they produce general rules or legislation. In order for an amendment to be adopted. among others. 2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 59 tensions between democracy and legality that Waldron emphasizes in his book are much less sharply drawn. Second. other peoples of the world..

Theory of separation of powers was propounded and popularized by the French political analyst Montesquieu. Therefore in the light of this context it is desirable to analyze the concept of separation of powers and its application in various legal systems around the globe. law making must not be done by the executives. the legislature.Cases have been reportedly coming up where judges were unjustifiably trying to perform executive or judicial functions. This is clearly unconstitutional. In the name of judicial activism judges can not cross their limits and try to take over their functions which belong to other organs of the state.e. legislature. ministers should not be sit in to the parliament. • • .e. the executive and the judiciary all have their own broad spheres of operation. judiciary and executive. otherwise the delicate balance in the constitution will be upset and there will be a reaction.1 It provides the vesting of judicial. One organ should not interfere with any other organ of the Govt. There is no liberty if the judicial powers be not separated from the legislative. Ordinarily it is not proper for any of these three organs of the state to encroach upon the domain of another. Judges must know there limits and must not try to run the Government. There to put check and balances on every organs of the state it is necessary to demarcate the powers of three branches of the Government.e. i. It contemplates an absence of overlapping of these separate organs of the Government. the theory of check and balances.inn modern times it has been substituted by more flexible theory i. i. executive and legislative functions in three separate organs of the Government. The theory of separation of powers signifies three formulations of governmental powers. i. should not exercise the functions assign to any other organ i. One organ of Govt.2 • The same person should not form part of more than one of the three organs of the Govt. Normally under any constitution.e. were it joined with the legislature the life and liberty of the subject would be expose to arbitrary control: for the judge would be then the legislature. were it joined to the executive powers the judge might behave with violence and oppression. They must have modesty and humanity and not behave like emperors.e. policies formed by the executives must not be intervened by the judiciary.

member of the Govt.However the effective implementation of this doctrine is not possible in modern days in view of growth of delegated legislation and administrative tribunals. Constitution of U. the king who is an executive head is also an integral part of the legislature and all his ministers are members are parliament.S. Power of the Supreme Court to review the act of the congress and the president6. all executive powers vest in the president. The judiciary is independent but the judges of the superior courts can be removed on an address from both the houses of parliament. The Lord Chancellor is a member of the House of Lords. The power of the senate to confirm the appointments made by the president or to reject the same5. However the constitutional trade-off for independence is that judges must restrain themselves from the areas reserved for other branches. However still there is no separation of powers. Thus judicial restraint contemplates the twin . because o the following features like. The House of Lords exercises both judicial and legislative functions the courts can apply and interpret the laws made by legislature3 Thus we can say that there is no effective separation of powers between the three organs of the Government.A According to US constitution all legislative powers vest in congress. Comparative perspective British Constitution It can be seen from British constitutional convention that. • • Therefore in the above context to secure the independence of the judiciary it is necessary to remove it from the political or administrative process. • President has the power to override the legislation passed by the congress by veto4. and at the same time a senior most member of the judiciary. and all judicial powers vest in the supreme court.

of the judiciary.10 Indian Scenario Apart from the directive principles laid down in Part-IV of the constitution which provides for separation of judiciary from the executive. New York7 Justice Holmes of the US Supreme Court in his dissenting judgment criticized the majority of the court for becoming a super legislature by intervening in to policy decision of the Govt. Justice Hugo Black warned that unbounded judicial authority would make of these courts members day-to-day constitutional conventions. to overcome this.overreaching values of the separation of powers and independence of judiciary. realizing that in a democracy many matters and controversies are best resolved in non-judicial setting. the constitutional scheme does not provide any formalistic division of powers. The court thereafter suddenly changed its approach and began upholding the laws9. similarly in his dissenting judgment in Grisswold v. When these were challenged in the US Supreme Court the courts begins striking them down on the ground that they violated the due process clause in the US Constitution. The politician will then step in and curtail the powers. however prior to that In Keshvanand Bhari v. or even the independence. In Indira Nehru Gandhi v.Raj Naryan12 chief Justice Ray observed that.11 The Supreme Court observed that the Indian constitution has not recognized the doctrine of separation of powers. State of Kerla13out of thirteen judges justice Beg held that . In Lochner v. The moral of this story is if the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politician and others. President Roosevelt proposes to reconstitute the court with six more judges to be nominated by him. This threat was found to be enough and it was not necessary to carry it out. As a reaction. which were mainly economic regulatory measures. During the era of Franklin Roosevelt when he was president the country was passing through a terrible economic crises. Indian constitution recognizes the theory of separation of powers in broad sense only. The judiciary should. President Roosevelt initiated a series of legislation called the New Deal. therefore confine itself to its proper sphere. Connecttcut8 Mr.

The functioning of the democracy depends upon the strength and independence of each of its organs.B.C. In Ram Jawaya Kapoor v.C.E. government again approached to the supreme court for appeal against the order of high court and the supreme court modified the order of High court and in its interim order and directed the Government to apply the alleged rule for both the .S. as unreasonable and contrary to the principle of equality16 here court intervene in the policy decision of the government. However the only check on judicial power is the selfimposed discipline of judicial restraint.C. High court rejected the formula of “best of five” holding the classification between students of S. Recently the Maharashtra government passed a regulation for the increase of result of S. Nowadays this doctrine is shaken by the judicial review and judicial activism. This regulation was challenged by the parents of the student who were studying in the C. right to equality. State of Punjab14the Indian constitution had not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of different parts or branches of the Govt. have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption. by one organ or part of the state. of functions that essentially belongs to another.S. however it was not approved by the other judges or in subsequent cases by the Supreme Court.separation of power is a part of basic structure of the constitution. and C. students and to curb the menace of students suicide in he wake of unexpected results. Boards.S.E. providing education in Maharashtra state in the High court of Bombay on the ground of violation of fundamental rights i. Similarly in Asif hamid v. because neither the powers can be kept in water tight compartments nor can any government can run on strict separation of powers. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. executive and judiciary have to function within their own sphere as demarcated under the constitution.S. No organ can usurp the functions assigned to another.e. it provides for the “Best of five’ formula according to which the percentage of the students are to be calculated on the basis of only those five subjects in which the students have secured the maximum marks.S. and I.E. state of Jammu & Kashmir15 Legislature.B. Therefore this doctrine cannot be liberally applied to any modern government.

Because the statement of marks are already distributed among the students and now it is not practically possible to deduct those marks or to prepare a fresh statement of marks. subsequently they were asked to perform the duties of tractor drivers. Which was earlier applied by the supreme court in Golaknath v. Similarly in Suman Gupta v. to distribute the lands under land reform scheme was challenged before the supreme court on the ground of violation of fundamental right19 Justice Subba Rao of the supreme court held such distribution of land as unconstitutional but apply its decision prospectively and stated that it is not practically possible to collect the land which are already distributed to the farmers or for the welfare of the state therefore it is desirable in the interest of justice to apply the decision with prospect5ive effect and held that after the date of this decision government cannot acquire the property of any person and parliament doesn’t have the power to amend the fundamental right. The appellant in the present case appointed the respondents as malis on daily wages. therefore here also supreme court applied the doctrine of prospective overruling and held that the government must not apply the impugned policy from next academic year. therefore High court ought to have apply the doctrine of prospective overruling. State of Jammu and Kashmir20 The respective state government reserved certain seats in medical colleges for the students residing in the particular state on reciprocal basis.S.E. Aravali Golf club v.S.17 In such kind of cases court must have to exercise a self imposed restraint.State of punjab18 in this case the policy of the govt.C. this policy of state was challenged on the ground that it discriminate among the students on the ground of place of birth21 The supreme court rejected the policy on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed their substantial education. In Divisional Manager. though there was no post of tractor drivers in the . and I. Chander Hass and Another22Supreme court warned the High court for its over activism.C. and now it is not in the interest5 of justice to cancelled their admission. Therefore by using the doctrine of prospective overruling in the above to cases Supreme court maintained the balance between judiciary and other organs of the government.students of S. It can also be maintained by using the self restraint by the judges.

The appellant contested the suit on the ground inter alia. Union of India23wherein one Advocate filed a public interest litigation challenging the “Agreement 123” i. Creation and sanction of post is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function. the courts cannot take upon themselves the power of creation of post. similarly In Madhu Holmagi v.establishment. They were continued to be paid wages for the post of mail . In this court dismissed the petition and also imposed a cost of Rs 5000 on the petitioner stating that it is an abuse of court proceeding. The court cannot direct the creation of post.after A few years appellant started paying them wages of tractor driver on daily wage basis.e. the direction of the first appellate court and the single judge to create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court further said that the creation of a post is an executive or legislative function and it involves economic factors. The respondents then filed a civil suit claiming regularization against the post of tractor driver. A single judge of high court upheld the judgment of the first appellate court. The appellant club then filed the appeal before Supreme Court by special leave before the Supreme Court the club submitted that there was no post of tractor driver. Hence. Though they continued to work for about a decade as tractor drivers. Indo-US nuclear treaty proposed to be entered by the Indian government. Allowing the appeal the Supreme Court held that since there was no sectioned post of tractor driver against which the respondents could be regularized as tractor driver. and direct creation of posts in any organization. that there was no sanctioned post off tractor driver hence there was no question of appointing the plaintiff on the post of tractor driver accepting that plea the trial court dismissed the suit. However the first appellate court reversed the order of trial court and directed the defendants to get the post of tractor driver sanctioned and to regularize the plaintiff on that post. there was no question of regularizing the respondents in the said post. and therefore. Because the question raised by the petitioner is a . their services were regularized against the post of mail and not as tractor driver. petitioner contended that court must have to scrutinize the all documents relating to the agreement123 and must have to prevent the Indian government from entering in to the nuclear deal.

question of policy decision, which is to be decided by the parliament and not by the judiciary. Conclusion Constitution of India provides for the establishment of three organs i.e. judiciary, executive, and legislature each organ has its own area of functioning. However constitution does which organ is superior to another, in this context the relation between judiciary, executive, and legislature became complex from last few decades. The legislature and judiciary are acting like an assembly and they want supremacy over each other, it should be noted that the absolute balance of powers between the different organs of the government is an impracticable thing in practice and the final say must belong to one of them. The constitution of India tried to adopt the middle path between the American system of judicial supremacy and the English principle of parliamentary supremacy. For this judiciary was empowered with power of judicial review, so that it can determine the constitutionality of executive and legislative actions but at the same time the judiciary was not empowered to review wisdom of legislative and executive policies. 1 Judicial Activism In India: G.B. Reddy : Gogia Law Agency: Hydrabad: First Ed:2001 2 See infra note 20 3 Principles of Administrative Law: M.P. Jain& S.N .Jain: Wadhwa Nagpur :Fifth Ed. 2007 4 Article.1 Scetion.1 of the U.S. Constitution 5 Article.1 Scetion.2 of the U.S. Constitution 6 Article.1 Scetion.3 of the U.S. Constitution 7 198 US 45(1905) 8 38US479:14 L Ed 2d 510 (1965) 9 Divisional Manager, Aravali Golf club v. Chander Hass and Another 2008(1)SCC683 at para37

10 Ibid at para-38 11 Article-50 of Constitution of India, The state shall take steps to separate the judiciary from the executive in the public services of the state. 12 AIR 1975 SC 2299 13 AIR 1973 SC 1469 14 AIR 1955 SC 549 15 AIR 1989 SC 1899 16 Times of India 14/7/2010 at p.1 17 ibid 18 AIR 1967 SC 1643 19 Right to property was a fundamental right under Article 19 (1) (f) at the time when Golaknath v. state of Punjab was decided . which was later on repealed by 44th constitutional amendment in the year 1978 20 AIR 1983 SC 1235 21 Article 15(1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them 22 2008(1)SCC 683 23 2008(6) ALL MR 94

Rule of law From Wikipedia, the free encyclopedia

Mosaic representing both the judicial and legislative aspects of law. Woman on throne holds sword to chastise the guilty and palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies armor of righteousness and wisdom.[1] This article is part of the Politics series Politics
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The rule of law is a legal maxim which provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law (rex lex), a feature of Roman Law, Nazi law, and certain other legal systems. The phrase has been used since the 17th century, but the concept is older. For example, the Greek philosopher Aristotle said, "Law should govern".[2] One way to be free from the rule of law is by denying that an enactment has the necessary attributes of law. The rule of law has therefore been described as "an exceedingly elusive notion"[3] giving rise to a "rampant divergence of understandings".[4] At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.[5]

Contents [hide]

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• • • • • •

1 History o 1.1 Antiquity o 1.2 Middle ages o 1.3 Modern times 2 Categorization of interpretations 3 Status in various jurisdictions o 3.1 United States o 3.2 Asia 4 Organizations and scholarly works o 4.1 International Commission of Jurists o 4.2 United Nations o 4.3 International Bar Association o 4.4 World Justice Project o 4.5 Albert Dicey o 4.6 Joseph Raz 5 In relation to economics 6 In schools 7 In conflict with natural law 8 See also 9 Notes 10 External links

[edit] History Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey,[6][7] development of the legal concept can be traced through history to many ancient civilizations, including Ancient Greece, Ancient China, ancient Mesopotamia, and Ancient Rome.[citation needed] [edit] Antiquity In Western philosophy, the Ancient Greeks initially regarded the best form of government as rule by the best men, such as Plato's idealized philosopher king.[8] Plato nevertheless hoped that the best men would be good at respecting established laws, and he explained why: Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.[9]

Under the Roman Empire. if it is advantageous to place the supreme power in some particular persons.[19] . the principle was further entrenched by Montesquieu in The Spirit of the Laws (1748).[15] [edit] Middle ages In Islamic jurisprudence rule of law was formulated before the twelfth century. so that no official could claim to be above the law. the sovereign was personally immune (legibus solutus).[16] However. but those with grievances could sue the treasury.[2] According to the Ancient Roman statesman Cicero."[10] During the Roman Republic. controversial magistrates might be put on trial when their terms of office expired. there is none which they have accounted more dear and precious than this.. to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them.[11][12][13][14] In contrast. members of the school of legalism during the 3rd century BC argued for using law as a tool of governance. but they promoted "rule by law" as opposed to "rule of law". they should be appointed to be only guardians. "We are all servants of the laws in order that we may be free.. Rex (1644).[18] Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex. and not by any uncertain or arbitrary form of government.More than Plato attempted to do. Later. meaning that they placed the highest officials above the law. Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.. Aristotle advocated the rule of law: It is more proper that law should govern than any one of the citizens: upon the same principle. John Locke also discussed this issue in his Second Treatise of Government (1690). a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law.[6] In Ancient China. but to Islamic religious law in the form of Sharia law.[8] In other words. by signing Magna Carta. and the servants of the laws. the House of Commons said: Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors. the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to. this was not a reference to secular law.[17] [edit] Modern times In a petition to James I of England in 1610. kings and queens of this realm. In 1215 AD. not even the caliph. The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law").

and formalists hold that the law must be prospective. Shklar. In addition to the formal and substantive interpretations of the term "rule of law". the notion that no one is above the law was popular during the founding of the United States. a society in which government officers have a great deal of discretion has a low degree of "rule of law"."[20] In 1780."[24] According to the functional view. the .is that under the rule of law the law is preeminent and can serve as a check against the abuse of power. like the Worldwide Governance Indicators. the law is king.In 1776. the formal view contains no requirements as to the content of the law. and the functional approach."[25] [edit] Status in various jurisdictions The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. but nevertheless this phrase has in the past had specific and important meanings. For as in absolute governments the King is law. and in particular the quality of contract enforcement. and there ought to be no other. but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. most views on this subject fall into three general categories: the formal (or "thin") approach. even when flexibility may be preferable. Other than that.[24] The rule of law is thus somewhat at odds with flexibility. and have characteristics of generality. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.[26] Research. defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society. another interpretation is the functional definition..[23][24] The "formal" interpretation is more widespread than the "substantive" interpretation. whereas a society in which government officers have little discretion has a high degree of "rule of law". according to political science professor Li Shuguang: "The difference. the substantive (or "thick") approach.[24] The ancient concept of rule of law can be distinguished from rule by law. for example Thomas Paine wrote in his pamphlet Common Sense that "in America. well-known. "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use". which is consistent with the traditional English meaning that contrasts the "rule of law" with the "rule of man..[22] Among modern legal theorists.. John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men. so in free countries the law ought to be king. and certainty."[21] [edit] Categorization of interpretations Different people have different interpretations about exactly what "rule of law" means.[23] This formal approach allows laws that protect democracy and individual rights. the law can serve as a mere tool for a government that suppresses in a legalistic fashion. Under rule by law. equality. According to political theorist Judith N.

Constitution adopted a particular interpretation of the "rule of law. the Justices of the Supreme Court. as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. [27] [edit] United States 2005 map of Worldwide Governance Indicators.[29] and the executive branch also has various discretionary powers including prosecutorial discretion. yellow (50th75th percentile)." and if so. the federal government does have considerable discretion: the legislative branch is free to decide what statutes it will write.police and the courts. All government officers of the United States." and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten .S. as well as the likelihood of crime or violence. orange (25th-50th percentile). and all members of Congress. Percentile rank indicates the percentage of countries worldwide that rate below the selected country. Colors range from dark green (90th-100th percentile) to light green (75th-90th percentile). For example. Scholars continue to debate whether the U. Likewise. the judicial branch has a degree of judicial discretion."[26] Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries. including the President. These oaths affirm that the rule of law is superior to the rule of any human leader. which one. which attempts to measure the extent to which agents have confidence in and abide by the rules of society. pledge first and foremost to uphold the Constitution. rather than being "defined by formal or substantive criteria. pink (10th-25th percentile) and red (0th10th percentile). as seen in the map below.[28] At the same time. Law Professor John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding.

One study indicates that throughout East Asia. because a rule of law is important to foreign investors and to economic development.That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. however unjust. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China.[30] Law Professor Frederick Mark Gedicks disagrees. a member of the Asian Human Rights Commission. which advocated good governance as rule by leaders who are benevolent and virtuous. "Laws may be unjust. Constitution believed that an unjust law was not really a law at all. the police force is an organized crime gang. In Thailand. writing that Cicero." George Mason agreed that judges "could declare an unconstitutional law void. oppressive or pernicious. and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. and the framers of the U. "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges. may be dangerous. and Legalism. Cambodia.[33] According to Awzar Thi. they would be under the necessity as judges to give it a free course. The influence of one school of thought over the other has varied throughout the centuries. the longest constitutional text in the history of the world has governed that country since 1950. across the continent there is a huge gulf between the rule of law rhetoric and reality.S. In Cambodia. the rule of law in Thailand. may be unwise. may be destructive. which advocated strict adherence to law. the transition to a market economy has been a major factor in a move toward the rule of law. and if so whether that spillover will enhance prospects for related values such as democracy and human rights. Augustine.and vague criteria.[35]. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?[34] In countries such as China and Vietnam. Thomas Aquinas. only South Korea. judges are proxies for the ruling political party…. In India. which did not come plainly under this description. the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. and most of Asia is weak or nonexistent: Apart from a number of states and territories."[37] . But with regard to every law. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion.[36] According to Indian journalist Harish Khare."[32] [edit] Asia East Asian cultures are influenced by two schools of thought. Confucianism.[31] James Wilson said during the Philadelphia Convention in 1787 that. Japan. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well.

institutions and entities.[41] The Security Council has held a number of thematic debates on the rule of law. avoidance of arbitrariness and procedural and legal transparency. separation of powers. leaving much discretion in the hands of bureaucrats.[38] [edit] Organizations and scholarly works Many organizations and scholars have advocated for the rule of law. and have taken positions regarding which interpretation of that concept they prefer. equality before the law. however.[44] and the protection of civilians in armed conflict. This was the Declaration of Delhi. legal certainty. an international gathering of over 185 judges. and that it implies social. equally enforced and independently adjudicated. measures to ensure adherence to the principles of supremacy of law.Japan had centuries of tradition prior to World War II during which there were laws.[39] [edit] United Nations The Secretary-General of the United Nations defines the rule of law as:[40] a principle of governance in which all persons. are accountable to laws that are publicly promulgated. and legislation in Japan tended to be terse and general. but they were not a central organizing principle for society. and which are consistent with international human rights norms and standards.[42] and adopted resolutions emphasizing the importance of these issues in the context of women. public and private. suggest that the rule of law requires legislative power to be subject to judicial review.[43] children in armed conflict. The Declaration of Delhi did not. meeting in New Delhi and speaking as the International Commission of Jurists. peace and security. with renewed interest since 2006 and has adopted resolutions at its last three sessions. and law professors from 53 countries.[45] The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda. As the twenty-first century began. accountability to the law. as well. including the State itself. economic and cultural conditions conducive to human dignity. [edit] International Commission of Jurists In 1959. The General Assembly has considered rule of law as an agenda item since 1992. They declared that the rule of law implies certain rights and freedoms. made a declaration as to the fundamental principle of the rule of law.[46] . and they did not constrain the powers of government. that it implies an independent judiciary. the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States. participation in decision-making. It requires. fairness in the application of the law. lawyers.

these are all fundamental principles of the Rule of Law. independent.[edit] International Bar Association The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:[47] An independent. stable. and reflect the makeup of the communities they serve. Dicey popularized the phrase "rule of law" in 1885. the right to a fair and public trial without undue delay. The process by which the laws are enacted. and whether legal institutions protect fundamental rights and allow ordinary people access to justice. and covers a variety of dimensions of the rule of law — such as whether government officials are accountable under the law. Access to justice is provided by competent. The WJP Rule of Law Index is composed of 10 factors and 49 sub-factors.[6][50] Dicey emphasized three aspects of the rule of law: (1) no one can be punished or made to suffer except for a breach of law proved in an ordinary court. (2) no one is above the law and everyone is equal before the law regardless of social. The Rule of Law is the foundation of a civilised society. The government and its officials and agents are accountable under the law. publicized. are all unacceptable. equality of all before the law. The laws are clear. and enforced is accessible. and judicial officers who are of sufficient number. or political status. strict protection of confidential communications between lawyer and client. 2. and efficient. 4. V. arbitrary arrests. secret trials. [edit] World Justice Project As used by the World Justice Project —a non-profit organization committed to advancing the rule of law around the world— the rule of law refers to a rules-based system in which the following four universal principles are upheld:[48] 1. The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. and (3) the rule of law includes the results of judicial decisions determining the rights of private persons. fair. The IBA calls upon all countries to respect these fundamental principles. It establishes a transparent process accessible and equal to all. attorneys or representatives. have adequate resources. fair. administered. and ethical adjudicators. including the security of persons and property.[51] . It ensures adherence to principles that both liberate and protect. impartial judiciary. economic. a rational and proportionate approach to punishment. intimidation or corruption in the electoral process. cruel or degrading treatment or punishment. a strong and independent legal profession. indefinite detention without trial. Accordingly. and protect fundamental rights. It also calls upon its members to speak out in support of the Rule of Law within their respective communities. the presumption of innocence.[49] [edit] Albert Dicey British jurist A. 3.

and in this last respect he shares common ground with the constitutional theorists A.[edit] Joseph Raz In 1977. Friedrich Hayek and E. whereas the rule of law generally "is not to be confused with democracy. P. to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations.[54] . Some of Raz's principles are as follows: • • • • • • • • That laws should be prospective rather than retroactive. According to Raz. in contrast to corruption by private actors. no man may be denied justice. The availability of an effective court system. as lack of awareness of the law prevents one from being guided by it. The standards of constitutional economics can be used during annual budget process.[52] [edit] In relation to economics One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The independence of the judiciary has to be guaranteed. V. Dicey. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch. The rule-of-law movement cannot be fully successful in transitional and developing countries without a answer to the question: does the rule of law matter for economic development or not?[53] Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks. and if that budget planning is transparent then the rule of law may benefit. Laws should be stable and not changed too frequently. equality (before the law or otherwise). The courts should be accessible. the validity of these principles depends upon the particular circumstances of different societies. There should be clear rules and procedures for making laws. Thompson. The principles of natural justice should be observed. The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law. the influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies. and such a framework includes government spending on the judiciary which in many transitional and developing countries is completely controlled by the executive. The courts should have the power of judicial review over the way in which the other principles are implemented. human rights of any kind or respect for persons or for the dignity of man". justice. is a key element for the success of the rule-of-law endeavor. particularly those concerning the right to a fair hearing.[52] Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion.

The Sudbury School is an example of a school where laws are always promulgated in writing. printed."[59] EXECUTIVE DISCRETION AND ARTICLE 356 OF THE CONSTITUTION OF INDIA: A Comparative Critique K. Germany. the term “rule of law” has been used primarily in the English-speaking countries. Hurd raises the example of a battered woman who rightly believes that there is a strong probability that her husband will eventually attempt to kill her and her children unless she preemptively kills him. electronic or otherwise. organized society. distribute or publish the work or part of it. Joseph(1) Readers are reminded that this work is protected by copyright. If the law does not permit the acquittal of those who claim selfdefense in the absence of an imminent threat of harm. then the woman must be punished. and it is not yet fully clarified even with regard to such well-established democracies as. and careful records are kept of the body of precedents surrounding each rule. in any form. Heidi M. electronically or printed. While they are free to use the ideas expressed in it. for arbitrary or capricious authority to step in. Jayasudha Reddy and Joy V. Readers are permitted to make copies. or Japan.The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. or "what will become of the rule of law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case to which it applies and to disregard it whenever it is inferior to the rule that they would fashion. they may not copy. There is no opening. including within schools. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy. Denmark. however small. except for reasonable quoting. France. clearly indicating the source. To date. for instance. for personal and classroom use.[55] [edit] In schools The rule of law is generally acknowledged to be a cornerstone of orderly. Sweden. .[56][57][58] [edit] In conflict with natural law Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law.

Conclusion Notes Appendix I: Specific sections of Part XI of the Constitution of Malaysia Appendix II: Article 356 1. The development of Article 356 3.2 Drafting Committee of the Constituent Assembly 3. R.4 The Governor's obligation to explore alternatives 4. Having just gained independence after a long and continuous struggle. If the members of the Drafting .Contents 1. Introduction Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse. the President is vested with tremendous discretionary powers. Thereupon the President makes a 'Proclamation of Emergency. The essence of the Article is that upon the breach of a certain defined state of affairs.1 The Government of India Act.1 Emergency powers of the President of the United States of America 7. 1935 4. 1987 4.2 Executive discretion under the Malaysian Constitution 8. Federalism in India 3. Failure to invoke emergency provisions 10.1 Background 4.3 An analogy between Article 356 and Sections 45 and 93 of the Government of India Act.5 The Proclamation of Emergency and the Governor's Report 5.' dismissing the State Legislature and Executive. During a state of emergency. the people of India would naturally have the greatest interest in preserving all the freedoms envisioned in a democratic society. the President concludes that the 'constitutional machinery' in the State has failed. Any legislation or constitutional provision that abrogates any of the basic principles of democratic freedom is anathema to most people and the more so to the people of the largest democracy in the world. Introduction 2. as ascertained and reported by the Governor of the State concerned (or otherwise). The current situation in India 9. The Sarkaria Commission Report. Judicial review 7.2 Rare use of Article 356 4. Bommai v. 1935 3.3 Avoiding disastrous consequences 4. Union of India 6. Comparative analysis 7. S.

and Article 356 was designed to preserve this integrity. But it seems that the remedial nature of the Article has been perverted to impose the domination of the Central Government upon a State Government that does not subscribe to its views. it would .' or an association of two or more states into one state. Babasaheb Ambedkar. . but what remains to be seen is whether it is being used at the cost of sacrificing the interests of democratic freedom. . though it should be in perfect subordination to the general authority of the union. its people a single people living under a single imperium derived from a single source. Central control over regional governments is essential for the integrity of nations that have federal systems of government. the country is one integral whole. for local purposes. but a distributed entity that derives its power from a single source . and objects of the federal authority are mere matters of discretion. along with James Madison and John Jay). In the words of Alexander Hamilton (the illustrious co-author of the Federalist Papers. however. 2.' then common sense suggests that it is only to deal with the direst of circumstances and nothing less.'(3) The similarity between the systems of government in the two countries.' He said: '. The definition of a confederate republic seems simply to be an 'assemblage of societies.Committee of the Constitution included a provision that permits a Government to dismiss a duly elected representative body of the people and suspend those freedoms in violation of even the crudest interpretation of a 'separation of powers.the Union. in a confederation the individual States retain most of their sovereignty and are only loosely bound together. Sovereignty and the powers of governance are distributed and shared by several entities and organs within the Indian constitutional system. where the individual States give up a significant portion of their autonomous rights to the Central Government in return for security and pursuit of common interests. Both governments exhibit a strong Union control. in contrast. . Federalism in India Federalism in India is at once similar and distinct from other federations like that of America. is remarkable.(2) Dr. by a constitutional necessity. Though the country and the people may be divided into different States for convenience of administration. stressed the importance of describing India as a 'Union of States' rather than a 'Federation of States. so long as it exists. So long as the separate organization of the members be not abolished. The extent. what is important is that the use of the word “Union” is deliberate . when describing the proposed Constitution of the Federal Government of the United States of America. modifications. . distinct in that it is not a group of independent States coming together to form a federation by conceding a portion of their rights of government. who chaired the Drafting Committee of the Constituent Assembly.

and leaves in their possession certain exclusive and very important portions of sovereign power.still be.(4) This is in essence how one would describe Center-State relations in India. makes them constituent parts of the national sovereignty. where the Union would exercise absolute control within the State. Therefore extraordinary powers to deal with these situations become necessary. would reveal that the danger of usurpation of authority by the Federal power would be smaller than the danger of degeneration of the federation into smaller factions that would not be able to defend themselves against external aggression. excepting provisions for certain emergency situations in the Constitution of India. Therefore the system of government in India can be considered to be 'quasi-federal' in nature. the State List. like the Achaean League or the Lycian Confederacy.(5) He believes that. in every rational import of the terms. 45. specific powers are divided into three lists . a systematic analysis of the constitutional development of this controversial piece of legislation is in order. It can be considered federal because of the distribution of powers between the Center and States and it may be considered unitary because of the retention of Union control over certain State matters. so far from implying an abolition of the State governments.the Union List. India has a vast and diverse population. The power contained in Article 356 is both extraordinary and arbitrary. or a confederacy. it is necessary for the individual States to sacrifice some of their powers to the Union. with a large number of people living in abject poverty. by allowing them a direct representation in the Senate. This fully corresponds. in fact and in theory.(7) He contends that a study of similar systems in ancient times. James Madison dealt extensively with the issues related with the relinquishing of sovereign powers by States to a Central (or 'federal') authority in the Federalist Papers. A close scrutiny of the history of its application would reveal that Article 356 is no exception. The proposed Constitution. and the Concurrent List (powers shared by both the Union and the States). 3. In fact. for the common good of all the members of a federal system.(6) He then goes on to examine in detail the danger this would pose to the residual powers that remain with the States (this issue comes very close to the heart of this paper). in as much as it is both federal and unitary. but it is an uncanny trait of extraordinary power that it tends to corrupt the wielder. an association of states.(8) This is precisely the rationale behind the distribution of power between the Union and the States in India. and also because of the constitutional provisions relating to emergencies when all powers of a State would revert to the Center. But before we turn to that. Extraordinary situations are not novel to the Indian political scene. specifically Federalist No. with the idea of a federal government. The development of Article 356 .

1935 This Act first introduced the concept of 'Division of Powers' in British India. But since there was very little faith lost between the British and the Indian people. that things were not happening in the way in which they were intended to happen in the Constitution. Babasaheb Ambedkar then pacified the members stating: 'In fact I share the sentiments expressed by my Hon'ble friend Mr.635 amendments tabled. will take proper precautions before actually suspending the administration of the provinces. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. exercised near absolute control over the Provinces. 1947. Article 355 states: 'It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.'(12) The word 'otherwise' in Article 356(1) was not included in the original draft.'(11) By virtue of this earnest advice given by the prime architect of the Indian Constitution.3. the British took precautions to keep a sufficient check on the powers given to the Provinces. A good Constitution must provide for all conceivable exigencies.' He added: 'I hope the first thing he will do would be to issue a clear warning to a province that has erred. it was to prepare a draft Constitution for India. upon the President. I hope the President. These precautions were manifested in the form of emergency powers under Sections 93 and 45 of this Act. It was an experiment where the British Government entrusted limited powers to the Provinces.(9) 3. Ambedkar.(10) When it was suggested in the Drafting Committee to confer similar powers of emergency as had been held by the Governor-General under the Government of India Act.473 amendments out of a total of 7. despite protests from members of the original Drafting Committee. In the course of about two years. who is endowed with these powers. Dr.1 The Government of India Act. a Drafting Committee was set up by the Constituent Assembly. Under the chairmanship of Dr. the Assembly discussed 2. If at all they are brought into operation. we can safely conclude that this is the very last resort to be used only in the rarest of rare events. stating that it was an open invitation to abuse the . 1935. under extraordinary circumstances.R. it was later introduced through an amendment. Therefore this Article is like a safety valve to counter disruption of political machinery in a State.2 Drafting Committee of the Constituent Assembly On August 29. B. many members of that eminent committee vociferously opposed that idea. where the Governor General and the Governor.

Article. cited above) imposed a duty upon the Center to ensure that the States are governed in accordance with constitutional provisions and that hence it would not be proper for the President to base his decision solely on the report of the Governor of the State. the Article was invoked on several occasions by the Center due to ambiguities in its wording.S. '. extent. was appointed in 1983 and spent four years researching reforms to improve Center-State relations. however. The report discourages a literal construction of Article 356(1). assuming executive powers. Any abuse or misuse of this drastic power would damage the democratic fabric of the Constitution. each and every breach and infraction of constitutional provisions. According to the Commission. irrespective of their significance. the executive and legislative powers of a State could be assumed by the Governor.3 An analogy between Article 356 and Sections 45 and 93 of the Government of India Act.(17) . . 4. 4. the government of the State cannot be carried on in accordance with the provisions of this Constitution .(13) 3. but empowers the President to take steps in this regard. 1935.2 Rare use of Article 356 The Sarkaria Commission recommended extremely rare use of Article 356. Sarkaria. cannot be treated as constituting a failure of the constitutional machinery. though he shall have to act on the report of the Governor or Ruler of the State. It was only in 1987 when the Sarkaria Commission submitted its report that part of the obscurity surrounding Article 356 was cleared. Dr.' is vague. acting at his discretion. . 1935 There are certain differences in the provision relating to the failure of the constitutional machinery under the present Constitution and the powers dealt with in Sections 45 and 93 of the Government of India Act.(15) The present Constitution. Article 356 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a State. and effect. does not intend to suspend the Constitution of a State.1 Background In spite of the precautions laid down in Article 356. although the passage. The Sarkaria Commission Report. .(14) Firstly. headed by Justice R. assuming legislative powers. It also empowered the Governor-General to deal with a similar situation in a Province (Section 93). The Commission. the 1935 Act empowered the Governor-General to deal with a failure of the constitutional machinery at the Center (Section 45). Ambedkar justified its introduction saying that Article 277A (now Article 355. .(16) The present Constitution has separated the two powers: the President. under Section 93 of the 1935 Act. and the Union Parliament. 1987 4. The Commission observed that. Secondly.

(22) Every Proclamation of Emergency is to be laid before each House of Parliament at the earliest. the report recommends that the Governor request the outgoing Ministry to continue as a caretaker government.(23) The State Legislative Assembly should not be dissolved either by the Governor or the President before a Proclamation issued under Article 356(1) has been laid before Parliament and the latter has had an opportunity to consider it. these alternatives may be dispensed with only in cases of extreme emergency. when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a State. after reviewing suggestions placed before it by several parties. in specific terms that it is not carrying on the government of the State in accordance with the Constitution.(21) During the interim period. this may not be possible in a situation in which not taking immediate action would lead to disastrous consequences.The Commission. all attempts should be made to resolve the crisis at State level.(18) 4. If it is not possible for such a Government to be installed and if fresh elections can be held without delay. Before taking recourse to the provisions of Article 356. where failure on the part of the Union to take immediate action under Article 356 would lead to disastrous consequences. any explanation received from the State should be taken into account. in any case before the expiry of the two-month period stated in Article 356(3). The Commission's report recommends amending Article 356 suitably to ensure this.(19) 4. The report further recommended that a warning be issued to the errant State. provided the Ministry was defeated solely on a major policy issue. the Governor should explore all possibilities of having a Government enjoying majority support in the Assembly.4 The Governor's obligation to explore alternatives In a situation of political breakdown. Before taking action under Article 356. leaving the resolution of the constitutional crisis to the electorate. decided that Article 356 should be used sparingly. as a last measure. the caretaker government should merely carry on the day-to-day government and should desist from taking any major policy decision.3 Avoiding disastrous consequences According to the Commission's report.(25) 4.(20) The Governor should then dissolve the Legislative Assembly.(24) The report also recommends using safeguards that would enable the Parliament to review continuance in force of a Proclamation.5 The Proclamation of Emergency and the Governor's Report The report recommends appropriately amending Article 356 to include in a Proclamation material facts and grounds on which Article 356(1) is . individuals and organizations. However. unconnected with any allegations of maladministration or corruption and agrees to continue.

Rajamannar. given in paragraph 434 of the lengthy judgment deserves mention: (1) Article 356 of the Constitution confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the Government of a State cannot be carried on in accordance with the provisions of the Constitution. The satisfaction contemplated by the article is subjective in nature. eminent jurist and former Solicitor-General of India. However.(26) The Governor's Report. In the words of Soli Sorabjee. containing a precise and clear statement of all material facts and grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356. The views of Sri P. S.invoked. Union of India S. it is observed in the report. the power is really that of the Union Council of Ministers with the Prime Minister at its head. 5. R. should be a 'speaking document. the summary of the conclusions of the illustrious judges deciding the case. (2) The power conferred by Article 356 upon the President is a . Bommai v. R.(27) It will be seen from this peremptory examination of the important passages of the Sarkaria Commission Report that its recommendations are extensive and define the applicability and justification of Article 356 in full. Bommai case. would make the remedy of judicial review on the grounds of mala fides more meaningful and the check of Parliament over the exercise of this power by the Union Executive more effective. Under our Constitution. Union of India was a landmark in the history of the Indian Constitution. which moves the President to action under Article 356. concur broadly with the views of the Sarkaria Commission. former Chief Justice of the Madras (Chennai) High Court. 'After the Supreme Court's judgment in the S.V. But it is unfortunate that the principles and recommendations given by them are disregarded in the present day and that actions have been taken that are prima facie against the letter and spirit of the Constitution of India.'(28) The views expressed by the various judges of the Supreme Court in this case concur mostly with the recommendations of the Sarkaria Commission and hence need not be set out in extenso. R. This. who headed the Inquiry Commission by the State of Tamil Nadu to report on Center-State relations. Bommai v.' The Commission's report also recommends giving wide publicity in all media to the Governor's Report. it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed. It was in this case that the Supreme Court boldly marked out the paradigm and limitations within which Article 356 was to function.

They are. . In such a case. Similarly. Since the Proclamation lapses -. (4) The Proclamation under clause (1) can be issued only where the situation contemplated by the clause arises. it must be held. The existence of material . In such a situation. if the Proclamation is approved by both the Houses within two months. repeal or modification by the Government/Legislative Assembly or other competent authority. however. (6) Article 74(2) merely bars an enquiry into the question whether any. Until such approval. In case both Houses of Parliament disapprove or do not approve the Proclamation. the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation. if the Legislative Assembly has been dissolved after the approval under clause (3). what advice was tendered by the Ministers to the President.conditioned power. There is no room for holding that the President can take over some of the functions and powers of the State Government while keeping the State Government in office. the Government (which was dismissed) does not revive on the expiry of period of the proclamation or on its revocation. the Government has to go. The recommendations of the Sarkaria Commission with respect to the exercise of power under Article 356 do merit serious consideration at the hands of all concerned. and if so. Government which was dismissed revives. The Legislative Assembly.which may comprise of or include the report(s) of the Governor . having regard to the overall constitutional scheme that the President shall exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before. It is not an absolute power. The dissolution of Legislative Assembly is not a matter of course.and is not retrospectively invalidated . the Legislative Assembly does not revive on the expiry of the period of Proclamation or on its revocation.the acts done. which may have been kept in suspended animation gets reactivated. The satisfaction must be formed on relevant material. the Proclamation lapses at the end of the two-month period. (3) Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of Article 356. subject to review. orders made and laws passed during the period of two months do not become illegal or void. There cannot be two Governments in one sphere. (5) (a) Clause (3) of Article 356 is conceived as a check on the power of the President and also as a safeguard against abuse.is a pre-condition. (b) However.

the court cannot interfere so long as there is some material which is relevant to the action taken. it does not partake the character of advice.It does not bar the Court from calling upon the Union Council of Ministers (Union of India) to disclose to the Court the material upon which the President had formed the requisite satisfaction. the Court has the power to declare that acts done. the Union of India has to produce the material on the basis of which action was taken. it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. It cannot refuse to do so. orders and laws. When called upon. Even if the material is looked into by or shown to the President. repeal or modify such acts. (8) If the Court strikes down the proclamation. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. orders passed and laws made during the period the Proclamation was in force shall remain unaffected and be treated as valid. Its enquiry is limited to see whether the material was relevant to the action. it will be decided on its own merits in accordance with the provisions of Section123. Such declaration. shall not preclude the Government/Legislative Assembly or other competent authority to review. however. The President cannot impose Central rule on a State at his whim. the Minister or the official concerned may claim the privilege under Section 123. 6. If and when such privilege is claimed. Judicial review The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute. Even if part of the material is irrelevant.(29) Thus it can be seen from the conclusions of this Bench of the Supreme Court that the President's power under Article 356 is not absolute or arbitrary. The material on the basis of which advice was tendered does not become part of the advice. In such a case. It may happen that while defending the Proclamation. removes the cloud on the reviewability of the action. if it seeks to defend the action. without reasonable cause. The deletion of clause (5) [which was introduced by the 38th (Amendment) Act] by the 44th (Amendment) Act. (7) The Proclamation under Article 356(1) is not immune from judicial review. The court will not go into the correctness of the material or its adequacy. because the power under Article 356(1) is a conditional . Article 74(2) and Section 123 of the Evidence Act cover different fields.

Union of India. where it is possible the existence of satisfaction can always be challenged on the ground that it is 'mala fides or based on wholly extraneous and irrelevant grounds. nature of the right. just because the Proclamation was in force at that time.(33) The Supreme Court.(32) Judicial review of the Proclamation under Article 356(1) was first tested in State of Rajasthan v.(30) It is bound to vary depending upon the subject matter. the Presidential Proclamation under Article 356 is subject to judicial review. From the decisions in the case of State of Rajasthan v. it is clear that there cannot be a uniform rule applicable to all cases. But unless the mala fides of the Presidential Proclamation is shown. Bharat Singh. and other factors. It has to be determined in the individual cases on the basis of justifiability. Comparative analysis 7. this power does not enjoy blanket immunity from judicial review. though limited. 7. At the same time. as ultra vires to the Constitution. So the controversy actually revolves around the scope and reach of judicial review. Union of India and Others. where the Supreme Court held that it was not precluded from striking down a law passed prior to a Proclamation of Emergency. has the power of judicial review on all actions emanating from or empowered by any constitutional provision. Union of India and the Bommai case. that it should not hesitate to perform its constitutional duty merely because it involves considering political issues. Though the power of the President under Article 356 concerns his political judgment and the courts usually avoid entering the political thicket. which is distinct from judicial review. The Supreme Court in this matter observed.(34) Thus we can safely conclude that. the Courts have been exhorted by the Supreme Court to avoid delving into the President's satisfaction for want of judicially manageable standards. This point is amply evident in the case of Minerva Mills and Others v.1 Emergency powers of the President of the United States of America The Constitution in a democracy can be considered a written manifestation .'(31) The relevance of judicial review in matters involving Article 356 is also emphasized in the Supreme Court judgment in re State of Madhya Pradesh v. it should restrict itself to examining whether the constitutional requirements of Article 352 have been observed in the declaration of the Proclamation and it should not go into the sufficiency of the facts and circumstances of the presidential satisfaction in the existence of a situation of emergency. being the ultimate interpreter of the Constitution. However. the court is entitled to examine whether the condition has been satisfied or not. In the exercise of the power of judicial review. inter alia.power. where the Supreme Court dwelt extensively on its power to examine the validity of a Proclamation of Emergency issued by the President.

the President's authority was to 'aid judicial authority. which have been assigned to it by the Constitution.(36) But instead Presidents (Chief Executives) have assumed that these emergency powers are an executive privilege. concurring in the judgment in the 1952 Steel Seizure case. or in any Department or Officer thereof. and are not vested directly in the President. that the granting of emergency powers by Congress is implicit in its Article I. outlined a practical test for the constitutionality of executive action: 1. Relyea. and militia powers. and hence the Constitution should be considered superior to any of the three organs of Government. armed forces. while curtailing liberties of individuals.(40) According to the Constitution.'(38) He further stated that. and the 'necessary and proper' clause empowering it to make such laws as are required to fulfill the executions of 'the foregoing Powers. or designed to use it for improper purposes. and in these only. Harold C. it usually means that the Federal Government as an undivided whole lacks power. and all other Powers vested by this Constitution in the Government of the United States. Therefore. So we can say that only Congress has such powers. his authority is at its maximum. but the two-year limit on military appropriations ensures that the House can disband the army if. section 8 authority to 'provide for the common Defense and general Welfare.'(39) According to Chief Justice Taney.' the commerce clause. for it includes all that he possesses in his own right plus all that Congress can delegate.of the will of the general public. When the President acts pursuant to an express or implied authorization of Congress. President Lincoln suspended habeas corpus and curtailed other individual freedoms such as free speech and private property. When Congress intervened and his actions were questioned. has pointed out: It may be argued. Article 1 § 8 of the US Constitution gives Congress the power to make rules and regulations to deal with and provide for emergencies. A seizure executed by the President pursuant to an Act of Congress would be . the only power the President had was to 'take care that the laws shall be faithfully executed. For example. its war. it cannot be assumed that any power that has not been expressly granted by the Constitution is implied. may he be said (for what it may be worth) to personify the federal sovereignty. however. the president used.'(37) It was Chief Justice Taney who pointed out that '[the] president is commander in chief. it would seem.' not executing them himself or through officers appointed by him. in their judgment.(41) Justice Jackson.'(35) These powers. during the Civil War. he responded: 'It is believed that nothing has been done beyond the constitutional competency of Congress. If his act is held unconstitutional under these circumstances. during national emergencies only the 'habeas corpus clause' can be suspended by Congress and the President. In these circumstances. are for Congress to grant.

This judicial remedy in the original jurisdiction was available to the Supreme Court under the Judiciary Act of 1789.supported by the strongest of presumptions and the widest latitude of judicial interpretation. or like disaster not reasonably subject to anticipation. in the form of a petition for a writ of mandamus. When the President acts in absence of either a congressional grant or denial of authority. at least. for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. as a practical matter. congressional inertia.' Though the situations of emergency envisaged in the American context differ from those in the Indian context. Chief Justice Marshall ruled that the original jurisdiction of the Supreme Court was established by the Constitution and could not be enlarged or reduced by any means other than constitutional amendment. 2. if not invite. but there is a zone of twilight in which he and Congress may have concurrent authority. 3. Madison. and therefore he held that the Judiciary Act of 1789 was unconstitutional. In denying the writ. any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.(43) In this case. The power of judicial review was established by the Supreme Court as early as 1803 in the matter of Marbury v. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution. or in which its distribution is uncertain. his power is at its lowest ebb. James Madison. and the burden of persuasion would rest heavily upon any who might attack it. indifference or quiescence may sometimes. there is definitely a commonality as to the magnitude of events qualifying as an emergency. Therefore. a suit was brought against the then Secretary of State. measures on independent presidential responsibility. enable. furthermore. Thus it can be seen that the judiciary does have the right to question executive authority with respect to national emergencies and. When the President takes measures incompatible with the expressed or implied will of Congress. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. a Supreme Court ruling defined an emergency as 'urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire. he can only rely upon his own independent powers. that any dispute arising thereof is considered to be 'judicially reviewable. flood.'(44) This ruling concurs with the rare invocation of .(42) This gives rise to the aspect of questionability of executive exercise of powers. for what is at stake is the equilibrium established by our constitutional system. In this area. In 1934.

The extent of their invocation and use is also contingent upon the personal conception which the incumbent of the Presidential office has of the Presidency and the premises upon which he interprets his legal powers. was of the opinion 'that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. It was the National Emergencies Act (50 U.emergency rule in India according to the Indian Constitution.'(46) He also believed that 'it was not only his right but duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Apart from the above two views on presidential emergency powers.'(45) And it was President Theodore Roosevelt who 'declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. Apart from these permanent powers.'(49) This view is more in accordance with the situation in India. The President of the United States has some powers that are permanently available to him for dealing with emergencies. The National Emergencies Act of 1976 prescribes formal procedures for invoking these authorities. The next President of the United States. This is similar to powers available to the President of India as the Supreme Commander of the Armed Forces. 1601-1651) by which the President was asked to 'declare formally the existence of a national emergency and to specify what statutory authority. the authority of a President is largely determined by the President himself. President William Howard Taft. there is a variety of standby laws which are statutory provisions that have been delegated by Congress to the Executive . activated by the declaration. In the last analysis.S. every power exercised is by specific delegation and should not be assumed to be implied unless explicitly denied. The underlying principle is that all three organs of government in a democracy derive their authority to act for the common people from the Constitution and. there is one authority who is of the opinion that 'emergency powers are not solely derived from legal sources.'(50) In the Indian context. accounting for their use and regulating their . hence. A good example of this is the Defense Production Act.that convey special emergency powers once the President of the United States of America has formally declared a national emergency. the only interpreter of the Constitution is the Supreme Court and no other person or body has a right to interpret it. where executive powers must have express authority from a specific constitutional provision. originally adopted in 1950 to prioritize and regulate the manufacture of military materials. would be used.C. . . and provided Congress a means to countermand the President's declaration and the activated authority being sought.'(48) Taft concluded: 'There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest .'(47) This is exactly the opposite to the Indian context.

which regulates its invocation and use. leaves it primarily to the judgment of the Governor of the State. the scope of the stand-by powers of emergency of the President of the United States is national in character. unforeseen. in the form of the 'Governor's Report. to decide that a situation of emergency has arisen. This is in concurrence with the Sarkaria Commission Report's recommendations to resort to Article 356 only if not doing so would lead to 'disastrous consequences. in the form of the well-known 'otherwise' term in Article 356.sudden. These can be equated to the clauses of Article 356 (of the Indian Constitution). this is analogous to our finding that the Indian Constitution. The second aspect according to Corwin is potential gravity .(52) The first is the temporal character of national emergency . Hence. The advantage in the American instance is obvious. though it prescribes symptoms and criteria for qualifying an emergency. This can be compared to the Drafting Committee and Sarkaria Commission's envisaged 'rarest of rare circumstances' application of Article 356 in India.' and to presidential discretion. viz. The extension of Article 356 in gradual time intervals concurs with the 'unknown duration' aspect of a national emergency in the United States. This aspect is personified in the very first clause of Article 356: 'a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution.' The third aspect is perception . This aspect is a combination of other aspects and adds a qualifier. and of unknown duration.' The striking difference between emergencies as envisaged in the American Constitution is that they pertain solely to national emergencies. The fourth aspect of a national emergency according to Corwin is the element of response to a sudden situation that cannot always be dealt with according to rule and that requires immediate action. This has its advantages and disadvantages.(51) The aspects of an emergency condition as put forward by Edward Corwin reflect characteristics strikingly similar to Article 356 of the Indian Constitution.activation and application. even if the situation affects a part of the country or a particular State.(53) Out of concerns arising from the continued use of emergency powers by the Chief Executives long after the situation of emergency has passed (specifically the continued existence of President Truman's 1950 national emergency proclamation long after the conditions .who discerns a phenomenon of emergency? Corwin's conclusion is that the American Constitution is guiding but not conclusive. whereas the scope of the powers under Article 356 of the Indian Constitution is restricted to particular States. even if the emergency is regional in character.a dangerous and life-threatening situation. that there is no existing active rule that can counter the situation. it gives the President wider latitude in mobilizing the whole country to deal with an emergency situation in one part. The disadvantage is that national emergency powers curtail individual rights at a national level.

these powers are largely concentrated in the area dealing with emergency provisions. life. and. the 'Special Committee on the Termination of the National Emergency' was chartered in June of 1972. known as the Yang di Pertuan Agong. Malaysia.later reconstituted as the 'Special Committee on National Emergencies and Delegated Emergency Powers' .(54) The recommendations of the Special Committee and a series of congressional debates culminated in the 1976 enactment of the National Emergencies Act. Public opinion in the United States of America is active enough to act as a restraint against executive excesses. The checks and balances prescribed under the National Emergencies Act. 1950. This situation was in contrast to the provisions of Article 356(3) and (4) of the Indian Constitution. has a constitutional structure very similar to that of India: a bicameral division of Parliament and a Westminster model of the separation of powers. whereas the Indian Constitution is secular. and 1971) were in effect. theoretically. the Committee established that four proclamations (those of 1933. 7. This is partially compensated by the vigilance of judicial activism. The only difference is the equivalent of the President . whereas public opinion in India is yet to become such a substantive force. which stipulates checks and balances against the potential of prolonged impositions of arbitrary powers of discretion of the Executive. the regulation of emergency powers of the Executive in the United States of America and in India are pretty similar. as was pointed out by Poh-Ling Tan. required under Article 356 of the Indian Constitution. It further provided a procedure for future declarations and their congressional regulation. the Malaysian Constitution recognizes Islam as the country's official religion.prompting its issuance had disappeared). being a former British colony. The Yang di Pertuan Agong can absolutely suspend fundamental rights like the liberty of person.a monarch. At that time. In a legislative sense. In Malaysia. The Act in essence returned all standby emergency powers to dormancy two years after the Statute's approval. The Special Committee . the freedoms of speech. it is a totally different story altogether. which rendered ineffective the four existing proclamations of emergency. and an independent judiciary. expression. 1970. Practically. are similar to the controlled method of escalation provided by the extensions of proclamations in graded time intervals. and movement in a State (or the country).ascertained that no process existed for automatically terminating the four outstanding national emergency proclamations. requiring a new proclamation to activate standby extraordinary powers of the President. Lecturer at the Faculty of Law at Queensland University .2 Executive discretion under the Malaysian Constitution The Malaysian Constitution could be considered the other end of the spectrum of executive discretionary powers. with an overlap between the Executive and the Legislature.

of Technology, Australia, in her paper entitled 'Human Rights and the Malaysian Constitution Examined through the Lens of the Internal Security Act 1960.'(55) In this paper, Poh-Ling Tan also underlines the severe restrictions on the powers of judicial review of executive discretionary powers by the Apex Court and the rank disregard for all theories on the separation of powers shown by the Executive in the dismissal of the Lord President of the Supreme Court, in 1988, followed by the dismissal of two Supreme Court judges.(56) This is in stark contrast to the absolute level of the independence of the judiciary in India and the unquestioned authority of the Supreme Court of India as the supreme interpreter and guardian of the Constitution. The history of constitutional emergency in Malaysia started in 1948, before the country's independence, when the British Government declared a state of emergency, preceding a 12-year communist insurgency, when 11,000 people were reportedly killed and the British High Commissioner assassinated.(57) Since independence in 1957, the new government has made its first Proclamation of Emergency in 1964 due to a conflict with Indonesia.(58) Despite the cessation of the Indonesian threat, the Proclamation was never revoked.(59) The second Proclamation of Emergency by the Government of independent Malaysia, issued in 1966, was restricted to the State of Sarawak, to deal with the constitutional impasse caused by the dismissal of the Chief Minister of Sarawak.(60) This Proclamation again was never formally revoked. The third Proclamation, which was nationwide, was issued in 1969 to deal with election-related rioting and racial violence. Several sections of the Constitution were suspended, restricting individual liberty. In spite of the restoration of normalcy and the Legislature, this Proclamation, like its predecessors, was never revoked.(61) Another political standoff in the State of Kelantan, due to nonalignment of interests between the Central and State leaderships, resulted in the fourth Proclamation of Emergency in 1977.(62) The circumstances preceding this Proclamation - the Union or Central leadership suspending a State Government where it is not able to impose leadership aligned to it - is reminiscent of the Proclamation of Emergency in the State of Uttar Pradesh, in India, which will be discussed in more detail in the next section. This situation of overlapping Proclamations of Emergency in Malaysia is constitutionally possible, as was pointed out by Ramdas Tikamdas in a paper presented at the 2002 Workshop of the Research School of Pacific and Asian Studies, at the Australian National University, on 'National Security and Constitutional Rights in the Asia Pacific Region: The Malaysian Experience.'(63) Article 150(2A) of the Malaysian Constitution clearly states that the Yang di Pertuan Agong may issue a Proclamation even when a previous Proclamation is in operation.(64) This is similar to the overlapping Proclamations before the passing of the National Emergencies Act in 1976 in the United States of America and, again, in

sharp contrast to the provisions in the Indian Constitution. Another major difference is that presidential satisfaction as to the existence of a situation of emergency is not entirely exempt from judicial review under the Indian Constitution, as was pointed out above, whereas satisfaction of the Yang di Pertuan Agong enjoys a high degree of immunity from judicial review under Article 150(8)(a) of the Malaysian Constitution.(65) It is difficult to analyze the total impact of executive discretionary powers under the Malaysian Constitution and of laws passed under the protection of Proclamations of Emergency without leaving the domain of Constitutional Law and transcending into the domain of Human Rights Law. Although both are interwoven and, to a certain degree, interdependent, it would be extraneous to the purposes of this discussion. It would suffice to say that this might be a good example to prove why it is dangerous to take an ad hoc approach to constitutional development and legislation, i.e. without analyzing the full spectrum of its ramifications. 8. The current situation in India The present situation in India shows that the 'dead-letter' provision - as Dr. Ambedkar hoped it would be - has become a frequently invoked, not-so-dead Article; it has been activated more than a hundred times till today.(66) The National Commission to Review the Working of the Constitution (NCRWC), which was established on February 22, 2000, on the basis of a joint resolution of the Government of India, Ministry of Law, Justice and Company Affairs (Department of Legal Affairs), submitted its extensive report in March 2002.(67) In its analysis, the NCRWC stated that in at least twenty out of the more than one hundred instances, the invocation of Article 356 might be termed as a misuse.(68) It is difficult to believe that, during his tenure as the Governor of the State of Uttar Pradesh, Romesh Bhandari made any real effort to install a popularly elected government or to conduct a constitutionally mandated floor-test to test the strength of the Legislative Assembly in the State for identifying a majority party before prompting the application of the Article by the President.(69) After the fall of the Mayawati Government in the State of Uttar Pradesh, it might have been justifiable to impose President's Rule. But it was also necessary to hold fresh elections as soon as possible. The mala fides of the Union Executive in preventing the assumption of office by an unfavorable political entity became clearly manifest in Governor Bhandari's actions and the decision of the United Front Government at the Center, to re-impose President's Rule in Uttar Pradesh. The worst damage may possibly have been done through the office of the Governor, because the Governor cannot be held responsible for his or her actions. H. M. Seervai pointed out that the Governor can be removed only by the President and that the President acts on the advice of the Council of Ministers; hence the Governor is in office pretty much at the pleasure of the Union

Executive.(70) This may act as a bias whenever the Governor's duty requires him to go against the desires of the Union Executive. In its report, the NCRWC recommended that the President should appoint or remove the Governor in consultation with the Chief Minister of the State. This may act as a restraint on the misuse of power by the Office of the Governor.(71) Another example of misuse of Article 356 was the imposition of President's Rule in the State of Gujarat from September1996 to October 1996, following the incidents of violence indulged in by members of the Gujarat Legislative Assembly. Soli Sorabjee pointed out that violence within the Assembly cannot be treated as an instance of failure of the constitutional machinery; it would otherwise become very easy for malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the Assembly and thereby prompting improper invocation of Article 356.(72) The correct procedure to be followed in such a situation is to pass suitable legislation for disqualifying the guilty legislators. 9. Failure to invoke emergency provisions On the other extreme of misuse of Article 356 was the failure of the Union Executive - which was of the same political belief as the Government of Narendra Modi in Gujarat - to invoke Article 356 during the carnage following the Godhra train incident on February 27, 2002, in the State of Gujarat. To quote the words of Fali Nariman, noted lawyer and nominated member of the Upper House (Rajya Sabha) of the Indian Parliament during a parliamentary debate: 'Vital statistics tells us that there are more than 100000 persons in refugee camps and more than 30,000 people have been chargesheeted. Are these figures not enough to compel the Government to take action under articles 355 and 356?'(73) Fali Nariman also rightly pointed out in an interview with a newspaper correspondent that the Constitution may not have envisaged a situation where an emergency has arisen in a State where the ruling party is of the same political persuasion as the one at the Center and, hence, the Center might be biased against dissolving that government by invoking Article 356. He also pointed out that the word 'otherwise' in the text of Article 356 becomes instrumental in such a situation to allow the President to act without waiting for the 'Governor's Report.'(74) 10. Conclusion It is evident that there is a lack of effective safeguards against the abuse of Article 356 of the Indian Constitution. The safeguard of 'parliamentary approval' - outlined in Article 356(3) - of a Proclamation under Article 356(1) could be biased because the Party that is in power at

the Center generally dominates Parliament by a majority vote. Furthermore, even a vote in Parliament declaring a particular imposition (or failure to impose) of President's Rule to be wrongful cannot undo the damage already done. However, the repeal of Article 356 is not advisable because the Indian polity is rife with crises and there has to be some contingency against a constitutional deadlock in a State. The NCRWC also advised against the repeal of Article 356, stating that this would create an imbalance in Union-State relations in upholding constitutional governance throughout India and that in many more instances than not the use of Article 356 was inevitable.(75) Another option is to introduce further checks on the exercise of power under Article 356, by amendment. Even this is not advisable because it defeats the very purpose of the Article of dealing expeditiously with emergencies of constitutional failure in a State. Therefore, the most practical course left open may be to let history take its course. Eventually, the public opinion in India, we fervently hope, will awaken to the fact that Article 356 may veritably have become a noose that is slowly tightening around the neck of democracy in India, suffocating the right of the people under the Constitution. In the meantime, to nurture budding public opinion we do have a resource not to be underestimated, which is the power of judicial review of the Supreme Court, which has on more than one occasion shown that it is a power to be reckoned with. So we will have to suffice for now with occasional outcries against the Union Executive unsheathing or failing to unsheathe, at its sweet pleasure that double-edged sword called Article 356.

Notes 1. K. Jayasudha Reddy completed her first degree in Law from Indian Law Society's Law College, University of Pune, India, and completed her Master of Laws in U.S. Legal Studies at the University of Connecticut School of Law, USA. Jayasudha was a scholar at the Hague Academy of International Law in the Netherlands, in 2001, and has been working in the area of Immigration and Asylum Law in Connecticut, USA. Joy V. Joseph completed his first degree in Law from Indian Law Society's Law College, University of Pune, India, and was admitted to the Bar Council of Maharashtra and Goa, in India, in 1999. While at the University of Pune, Joy researched Constitutional Emergencies. He completed his Master's degree in Business Administration at the University of Connecticut School of Business, USA. Presently, he works on the development of econometric forecasting models at Marketing Management Analytics in Wilton, CT. The authors express their gratitude to Dr. Robert Birmingham, Professor of Law at the University of Connecticut, for his advice and for reviewing sections of this paper relating to the American Constitution and to Mr.

Prathish Prabhakaran, Attorney-at-Law, Consulta Juris, Mumbai, India, and Gayatri Jachak and Eram Khan, University of Pune, India, for their help in researching material relating to Indian Constitutional Law cited in this paper. The views expressed in this paper are the personal views of the authors, unless where expressly mentioned otherwise. Any questions and concerns about this paper can be addressed to the authors at: jjoseph@business.uconn.edu and jayasr@hotmail.com. 2. National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the Constitution, II, ¶ 2.1 (2002), at http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm (last visited Feb. 22, 2004). 3. National Commission to Review the Working of the Constitution, Report, I, ¶ 8.1.2 (2002), at http://lawmin.nic.in/ncrwc/finalreport/volume1.htm (last visited March 21, 2004). 4. Alexander Hamilton, The Union as a Safeguard Against Domestic Faction and Insurrection, The Federalist No. 9, Independent Journal, Nov. 1787. 5. James Madison, The Alleged Danger from the Powers of the Union to the State Governments Considered, Independent Journal, Jan. 1788 at http://memory.loc.gov/const/fed/fed_45.html (last visited Feb. 22, 2004). 6. Id. 7. Id. 8. Id. 9. National Commission to Review the Working of the Constitution, supra note 2, at ¶ 2.1. 10. First Day in the Constituent Assembly, at http://parliamentofindia.nic.in/debates/facts.htm (last visited Feb. 22, 2004). 11. National Commission to Review the Working of the Constitution, supra note 2, at ¶ 2.2. 12. India - Constitution, at http://www.oefre.unibe.ch/law/icl/in00002_.html (last visited Feb. 22, 2004). 13. D.D. Basu, Commentary on the Constitution of India (5th edn. 1990). A graphic record of this debate is also available at http://www.tribuneindia.com/1998/98nov08/sunday/head.htm (last visited Feb. 22, 2004). 14. National Commission to Review the Working of the Constitution, supra note 2, at ¶ 2.2. 15. Id. 16. Id. 17. The Sarkaria Commission Report, ¶ 6.3.23 (1987). 18. Id. at ¶ 6.8.01. 19. Id. at ¶ 6.8.02. 20. Id. at ¶ 6.8.04. 21. Id. at ¶ 6.8.04.

22. Id. at ¶ 6.8.04. 23. Id. at ¶ 6.8.05. 24. Id. at ¶ 6.8.06. 25. Id. at ¶ 6.8.07. 26. Id. at ¶ 6.8.08. 27. Id. at ¶ 6.8.09 and ¶ 6.8.10. 28. Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept. 21, 1996. 29. S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297, ¶ 434. 30. State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361. 31. S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297, ¶ 434. 32. State of Madhya Pradesh v. Bharat Singh, A.I.R. 1967 SC 1170; Centre for International and Comparative Human Rights Law, States of Emergency Database, Queen's University, Belfast at http://www.law.qub.ac.uk/humanrts/emergency/india/ind6.htm (last visited Feb. 22, 2004). 33. State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361. 34. Minerva Mills and Others v. Union of India and Others, A.I.R. 1980 SC 1789; Centre for International and Comparative Human Rights Law, States of Emergency Database, Queen's University, Belfast; http://www.law.qub.ac.uk/humanrts/emergency/india/ind6.htm (last visited Feb. 19, 2004). 35. Harold C. Relyea, National Emergency Powers, 2001 CRS Report for Congress 2, http://www.usembassy.it/pdf/other/98-505.pdf (last visited Feb. 20,2004). 36. Daniel Farber, Lincoln's Constitution 18 (2003). 37. Id. at 118. 38. Id. at 119. 39. Id. 40. Id. 41. Id. at 146. 42. Youngstown Co. v. Sawyer, 343 U.S. 579 (1952), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579 (last visited Feb. 19, 2004). 43. Robert W. Langran, Presidents versus the Court, at http://www.supremecourthistory.org/myweb/77journal/langran77.htm (last visited Feb. 20, 2004). 44. Harold C. Relyea, supra note 35, at 4. 45. Id. at 1. 46. Theodore Roosevelt quoted in id. at 2. 47. Theodore Roosevelt quoted in id. at 2. 48. William Howard Taft quoted in id. at 2. 49. William Howard Taft quoted in id. at 3 50. Albert Sturm quoted in id. at 3. 51. Id. 52. Id. at 4.

Id. 63.anu. National Commission to Review the Working of the Constitution. supra note 55. at ¶ 1. 3.. Seervai. Soli Sorabjee. supra note 3. at Fn.1. 2004). Belfast. 67. 2004). at ¶ 8. Id. 22. Constitutional Law of India.edu. 2002). at http://rspas. 55. at http://www. S. Supplement to the Synopsis of Debates (May 2.. supra note 3. Id. This could be further extended for another six months by resolutions of the Houses of Parliament. 64. 24.expressindia. 69. at Fn.1. Id.R. HC Order Speaks of Bhandari's Haste.qub. 24. ¶ 434. National Commission to Review the Working of the Constitution. 26. See full text cited in Appendix I. States of Emergency Database. 22.com/ie/daily/19980226/05750654.uk/humanrts/emergency/malaysia/mal9.law. Express India.htm (last visited Feb. 2004). Id. vol.rtf. 24.icj.ac. Centre for International and Comparative Human Rights Law. at . 1996). section 'Article 150 . 62. 1998. 70. Id. 65. Bommai v. 56. Ramdas Tikamdas. Union of India. Human Rights and the Malaysian Constitution Examined through the Lens of the Internal Security Act 1960 (2001). 22. The duration ('continuance in force') of a Proclamation of Emergency under Article 356(3) and (4) is two months unless approved by resolutions of both Houses of Parliament. Feb.pdf (last visited Feb.anu. and would still cease to be in operation after a period of six months from the date of the last resolution. See Appendix I. at http://www. Poh-Ling Tan. 58. 61.M. 54.html (last visited Feb.14.rtf. 59. Id.2004). at http://www. at Fn.edu. (1994) 3 SCC 1. 68. at ¶ 8.au/pah/human_rights/papers/2001/Tan. H. at http://rspas. 72. supra note 28. 57. Press Trust of India. Id.Emergency (Overlapping Emergencies)' (last visited Feb.2. 60. 3103 ( 4th edn. 22. 73.53. Queen's University. Ahmadi J. A detailed analysis of the constitutional structure of Malaysia and the issues regarding the independence of the Malaysian judiciary can be found in a report published by the International Commission of Jurists. 2004). Rajya Sabha. Poh-Ling Tan.16.au/pah/human_rights/papers/2002/tikamdas. 296-297.org/IMG/pdf/malaysia. National Security and Constitutional Rights in the Asia-Pacific Region: The Malaysian Experience. 66. at 8. section 'Numerous regressive measures since 1957' (last visited March 21. 71.

or the security of.html.htm (last visited Feb.in/rsdebate/synopsis/195/s02052002.indianexpress. States of Emergency Database. Indian Express. at http://www. Queen's University. any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Articles 5. 74. Manoj Mitta. organised violence against persons or property.ac. 2004).html (last visited March 25. or to cause a substantial number of citizens to fear. or would apart from this Article be outside the legislative power of Parliament. or (d) to procure the alteration. Appendix I: Specific sections of Part XI of the Constitution of Malaysia Special powers against subversion. If NHRC Indicts Modi. Belfast.qub. 10 or 13. 75.com/ie20020331/op1. 77. of anything by law established. otherwise than by lawful means. organised violence. National Commission to Review the Working of the Constitution. or (e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof. 9. or (f) which is prejudicial to public order in.http://rajyasabha. 2002. the Federation or any part thereof. at ¶ 8. (1) If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons. whether inside or outside the Federation (a) to cause. 2004). and . 22. March 31. 2004). and acts and crimes prejudicial to the public and emergency powers 149. at http://www. He Must Be Sacked.law.ch/law/icl/in00002_.nic.oefre. From the International Constitutional Law website.uk/humanrts/emergency/malaysia/mal4.18. 22. Centre for International and Comparative Human Rights Law. supra note 3. or (b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation. or (c) to promote feelings of ill-will and hostility between different races or other classes or the population likely to cause violence. at http://www. 76.htm (last visited Feb.unibe.

150. in either House of Parliament. he may promulgate such ordinances as circumstances appear to him to require. if not sooner repealed. shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance. or the economic life. or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event. or public order in the Federation or any part thereof is threatened. and the power of the Yang di-Pertuan Agong to promulgate ordinances under Clause (2B) may be exercised in relation to any matter with respect to which Parliament has power to make laws. whether or not there is a Proclamation or Proclamations already issued by the Yang di-Pertuan Agong under Clause (1) and such Proclamation or Proclamations are in operation.Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill. and shall continue in full force and effect as if it is an Act of Parliament until it is revoked or annulled under Clause (3) or until it lapses under Clause (7). if not sooner revoked. (2A) The power conferred on the Yang di-Pertuan Agong by this Article shall include the power to issue different Proclamations on different grounds or in different circumstances. (2) A law containing such a recital as is mentioned in Clause (1) shall. or the proportion of the total votes required to be had. but without . cease to have effect if resolutions are passed by both Houses of Parliament annulling such law. (2) A Proclamation of Emergency under Clause (1) may be issued before the actual occurrence of the event which threatens the security. the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action. but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article. regardless of the legislative or other procedures required to be followed. or the economic life. he may issue a Proclamation of Emergency making therein a declaration to that effect. (3) A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and. (2B) If at any time while a Proclamation of Emergency is in operation. (1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security. except when both Houses of Parliament are sitting concurrently. (2C) An ordinance promulgated under Clause (2B) shall have the same force and effect as an Act of Parliament.

nor shall any provision of this Constitution or of any written law which requires any consent or concurrence to the passing of a law or any consultation with respect thereto. and Article 79 shall not apply to a Bill for such a law or an amendment to such a Bill. or language. (7) At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force. and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency. notwithstanding anything in this Constitution make laws with respect to any matter. if it appears to Parliament that the law is required by reason of the emergency. any law made while the Proclamation was in force. to the extent that it could not have been validly made but for this Article. (4) While a Proclamation of Emergency is in force the executive authority of the Federation shall. while a Proclamation of Emergency is in force. except as to things done or omitted to be done before the expiration of that period. (6A) Clause (5) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays. nor shall Clause (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion. citizenship. extend to any matter within the legislative authority of a State and to the giving of directions to the Government of a State or to any officer or authority thereof.prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B). or with respect to any matter of native law or custom in the State of Sabah or Sarawak. no provision of any ordinance promulgated under this Article. (5) Subject to Clause (6A). shall be invalid on the ground of inconsistency with any provision of this Constitution. Parliament may. (8) Notwithstanding anything in this Constitution - . shall cease to have effect. (6) Subject to Clause (6A). notwithstanding anything in this Constitution. any ordinance promulgated in pursuance of the Proclamation and. or which restricts the coming into force of a law after it is passed or the presentation of a Bill to the Yang di-Pertuan Agong for his assent.

(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground. (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. or (iv) the continuation in force of any such ordinance. is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution. in whatever form. on any ground. the President may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State. (9) For the purpose of this Article the Houses of Parliament shall be regarded as sitting only if the members of each House are respectively assembled together and carrying out the business of the House. (iii) any ordinance promulgated under Clause (2B). (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation. question or proceeding. on receipt of a report from the Governor of a State or otherwise. (ii) the continued operation of such Proclamation. and (b) No court shall have jurisdiction to entertain or determine any application.(76) Appendix II Article 356 Provisions in case of failure of constitutional machinery in States(77) (1) If the President. regarding the validity of (i) a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1). including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State: .

the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. except where it is a Proclamation revoking a previous Proclamation. (3) Every Proclamation under this article shall be laid before each House of Parliament and shall. the Proclamation shall. but no such Proclamation shall in any case remain in force for more than three years: Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States. cease to operate on the expiration of a period of six months from the date of issue of the Proclamation: Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament. but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period. cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause. continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate.Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court. and if a resolution approving the Proclamation has been passed by the Council of States. or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. the Proclamation shall cease to operate at the expiration of thirty days from the date on which the . (4) A Proclamation so approved shall. unless revoked. but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period. unless revoked. (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

As a representative of the Indian judicial system.House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People: Provided also that in the case of the Proclamation issued under clause (1) on the 11th day of May.G. I am grateful for the opportunity to speak here today. Sitting justices of the United States Supreme Court as well as eminent academics have taken strong positions to justify or oppose the citation of foreign precedents in constitutional cases. Illinois (October 28. as the case may be. 2008) By Justice K. Balakrishnan. a resolution with respect to the continuance in force of a Proclamation approved under clause (3) for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either House of Parliament unless (a) a Proclamation of Emergency is in operation. 1987 with respect to the State of Punjab. At the outset it must be clarified that reliance on foreign precedents is necessary in certain categories of appellate litigation and adjudication. Chief Justice of India -------------------------------------------------------------------------------------------Ladies and Gentlemen. For instance in litigation . at the time of the passing of such resolution. The topic that I am supposed to speak on has been very contentious amongst the legal community in the United States. in the whole or any part of the State. 1987 with respect to the State of Punjab. the reference in the first provision to this clause to 'three years' shall be construed as a reference to five years. THE ROLE OF FOREIGN PRECEDENTS IN A COUNTRY’S LEGAL SYSTEM Lecture at Northwestern University. the most appropriate thing for me to do is to present an ‘outsider’s view’ of this debate and then briefly comment on how foreign precedents have been treated by the higher judiciary in India. (5) Notwithstanding anything contained in clause (4). in the whole of India or. and (b) the Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned: Provided that nothing in this clause shall apply to the Proclamation issued under clause (1) on the 11th day of May.

the actual location of the parties in different jurisdictions makes it necessary to cite and discuss foreign statutory laws and decisions. Furthermore. Hence. domestic courts are called on to engage with foreign precedents in fields such as ‘Conflict of Laws’. Courts are also required to look into the text and interpretations of international 1 .pertaining to cross-border business dealings as well as family-related disputes.

All of us will readily agree to the observation that constitutional systems in several countries. In later years the provisions of the International Covenant on Civil Political Rights (ICCPR) and the International Covenant on Economic.instruments (i. In the early years of the United Nations system a period which saw decolonisation in most parts of Asia and Africa.1 Much of this constitutional 1 See generally: Bruce Ackerman. The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) which was adopted in 1953 also became a source for doctrinal borrowing by the emerging constitutional systems.e. Social and Cultural Rights (ICESCR) have also emerged as reference-points for such constitutional borrowing. It is in this regard that some leading American judges and academics have expressed their opposition to the reliance on foreign law – especially when the same has been done to interpret Constitutional provisions in a liberal manner. many new Constitutions incorporated mutually similar provisions by drawing from ideas embedded in international instruments such as the United Nations Charter and the Universal Declaration of Human Rights (UDHR). treaties. 83 University of Virginia Law Review 771-797 (1997) 2 . However. declarations) if their respective countries are party to the same. ‘The Rise of World Constitutionalism’. conventions. the room for debate arises in respect of the citation of foreign precedents to decide on questions pertaining to domestic constitutional law. especially those belonging to the Common-law tradition have been routinely borrowing doctrine and precedents from each other.

N. Since the 1990’s. 214-231 . the Soviet-led bloc followed a divergent path by prioritizing collective socio-economic objectives over basic individual rights. ‘Human Rights: A worldwide dialogue’ in B. (eds.transplantation that has taken place through the means of international instruments has also exported certain distinct features of the United States Constitution – such as a bill of rights. ‘judicial review’ over legislation and limits placed on governmental power through ideas such as ‘equal protection before the law’ and ‘substantive due process’. Kirpal et. It is only natural that the newly created constitutional systems have sought to learn from long-established ones such as those of the United States of America. the dismantling of communist rule in the former USSR and Eastern Europe has prompted a new wave of constitutionalism. with several countries adopting written constitutions that provide for basic civil-political rights enforceable through judicial means.Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press. Supreme but not Infallible. 2000) at p.2 2 See generally: Clair L’Hereux-Dube. While this transplantation of constitutional doctrines was predominant in the case of most newly liberated countries in Asia and Africa. al.).

Sujit Chaudhary. In these jurisdictions. ‘Globalisation in search of In recent years.3 Anne-Marie Slaughter used the 3 3 . 108 Yale Law Journal 1225 (1999). Canada.See generally: Mark Tushnet. New Zealand and India have become the primary catalyst behind the growing importance of comparative constitutional law. the decisions of Constitutional Courts in common law jurisdictions such as South Africa. reliance on foreign precedents has become commonplace in public law litigation. ‘The possibilities of Comparative Constitutional Law’.

through ‘vertical’ means. 3 Chicago Journal of International Law 429 (2002) 4 Refer: Anne-Marie Slaughter. In a much-cited article published in 1994. 4 . ‘The typology of transjudicial communication’.e. such comparative analysis is considered especially useful in relatively newer constitutional systems which are yet to develop a substantial body of case-law. 29 University of Richmond Law Review 99-137 (1994) expression ‘transjudicial communication’ to describe this trend. i.justification: Toward a theory of Comparative Constitutional Interpretation’.e. through ‘horizontal’ means. Martha Nussbaum. ‘Introduction to Comparative Constitutionalism’. This also opens up the possibility of domestic courts relying on the decisions of other supranational bodies in the future.4 she described three different ways through which foreign precedents are considered – namely: • Firstly. For example. when domestic courts refer to the decisions of international adjudicatory institutions. irrespective of whether their countries are parties to the international instrument under which the said adjudicatory institution functions. • Secondly. the decisions of the European Court of Human Rights (ECHR) and European Court of Justice (ECJ) have been extensively cited by courts in several non-EU countries as well. For example. the Constitutional Courts set up in Canada and South Africa have frequently cited foreign precedents to interpret the bill of rights in their respective legal systems. when a domestic court looks to precedents from other national jurisdictions to interpret its own laws. In common law jurisdictions where the doctrine of ‘stare decisis’ is followed. i. 74 Indiana Law Journal 819 (1999).

In recent years. Virginia [2002]. 5 . where insights from foreign jurisdictions may insert a fresh line of thinking.S. For example. Courts in several European countries freely cite each other’s decisions that deal with the interpretation of the growing body of European Community (EC) law. they should also be free to refer to the understanding and application of the same in other national jurisdictions. While reference to evolving international human rights norms and decisions of international adjudicatory institutions is accorded a certain degree of legitimacy in most liberal constitutional systems. much of this resistance has been expressed in respect of the U. It is reasoned that if judges can directly refer to applicable international obligations.e. Simmons [2005]. • Thirdly. when a domestic court may cite the decision of a foreign court on the interpretation of obligations applicable to both jurisdictions under an international instrument.Comparative analysis is also a useful strategy to decide hard constitutional cases. Supreme Court’s decisions in Atkins v. through ‘mixed vertical-horizontal’ means – i. there has been considerable opposition to comparative analysis in constitutional cases in the United States. Texas [2003] and Roper v. In examining these three means of ‘transjudicial communication’ one can easily discern that references to foreign law contemplate both international and comparative law. Lawrence v.

361 (1989) • In Atkins v. • In Lawrence v. there has been a prominent dissonance over the citation of foreign precedents between liberally inclined judges such as Justice Stephen Breyer and Justice Antonin Scalia who is known to hold conservative positions.S. 186 (1986) 8 543 U.9 For several years.5 the majority opinion ruled against the constitutionality of the death penalty for mentally-retarded offenders. For instance in Stanford v. 558 (2003) 7 478 U. With the overruling of this case in Roper v. the majority had ruled in favour of the death penalty for juveniles and Justice Scalia had rejected arguments pointing to the abolition of the same in several Western European countries.S. Texas [2003]. Simmons [2005].S. 304 (2002) 539 U. 551 (2005) 9 492 U.5 6 536 U.7 wherein it was had held that there was no fundamental right to engage in consensual sodomy. Kentucky [1989]. Simmons. while overruling a previous decision on the point given in Stanford v. Kentucky [1989].6 the majority opinion held that the criminalisation of consensual homosexual conduct violated the ‘Due Process’ clause enshrined in the Fourteenth Amendment. Virginia [2002]. Hardwick [1986)]. In the process the Court overruled a previous decision given in Bowers v.S.8 the majority ruled against the constitutionality of administering the death penalty to juvenile offenders. and pointed to the international disapproval of the same. [2005]. Justice Scalia reiterated his opposition to the 6 .S. • In Roper v.

S.10 For an academic opinion surveying the use of foreign law by the U.11 As per my understanding there have been three distinct objections made against the citation of foreign precedents in constitutional cases.10 where the majority opinion delivered by Justice Anthony Kennedy referred to several international instruments as well as foreign decisions to rule against the constitutionality of the death penalty for juvenile offenders.. both of whom indicated their opposition to the citation of foreign precedents during the U. Senate hearings for the confirmation of their appointments. See: Steven G. The first objection is derived from the ‘separation 7 . 56 American University Law Review 553 (2007) citation of foreign precedents in his dissenting opinion.S. With the passing away of Chief Justice Rehnquist and the retirement of Justice Sandra Day O’Connor. Rahdert. the Bush administration expectedly preferred to replace them with judges holding conservative inclinations. and Justice Samuel Alito Jr. the balance in the US Supreme Court has tilted in favour of conservatism. ‘Comparative Constitutional Advocacy’. 47 William and Mary Law Review 743 (December 2005) 11 Cited from: Mark C. Since the delivery of that opinion. Calabresi and Stephanie Dotson Zimdahl. Supreme Court. Constitution was read expansively by way of reliance on foreign materials. ‘The Supreme Court and foreign sources of law: Two hundred years of practice and the juvenile death penalty decision’.S. Justice Scalia’s viewpoint has found more support with the appointment of Chief Justice John Roberts Jr. In the said opinion the right against cruel and unusual punishment enumerated in the Eighth amendment of the U.

Arguments have also been made to the effect that reliance on foreign precedents is an example of 8 12 Arguments based on the ‘exceptionalism’ of the American society and polity have been put forward in the following article: Steven G. Justice Scalia has argued that while it is acceptable to discuss and rely on foreign law in a legislative process such as the framing of a Constitution.of powers’ doctrine. The legislature is also free to borrow from foreign statutes and precedents in shaping domestic laws. It is argued that under the doctrine of ‘Separation of Powers’. • The second criticism draws from the idea of ‘exceptionalism’ or the unique status of the United States amongst the comity of nations. rule of law. a democratic tradition. This argument based on the idea of ‘separation of powers’ doesn’t appear to hold too much water since one of the principal functions of judges in a constitutional court is to protect the countermajoritarian safeguards enumerated in the Constitution – for instance the rights of religious minorities.12 This ‘exceptional’ status is asserted by referring to several social. He has also invoked the ‘Originalist’ approach to constitutional interpretation by observing that the framers did not intend any reliance on foreign sources. ‘A shining city on a hill: American Exceptionalism and the Supreme Court’s practice of relying on foreign law’. It is vehemently asserted that the framers of the United States Constitution aimed to establish a polity which was a radical departure from the political institutions of the ‘Old World’ and that the American system is meant to lead the way for other countries and not vice versa. The ‘unelected’ judiciary does not have a role to play in incorporating legal prescriptions which have originated abroad. • The first objection is based on the reasoning that since foreign judges are not accountable to the electorate or any public agency. In this regard. since it is a body constituted by the electoral process. The enforcement of these international obligations is subject to a further check by way of legislative approval. economic and political features prevalent in the country – such as constitutionalism. Calabresi. respect for private property and a popular culture which promotes enterprise. Very often the understanding of these safeguards can benefit from an evaluation of how similar provisions have been interpreted and applied in other jurisdictions. indigenous groups and affirmative action for historically disadvantaged communities. the incorporation of foreign law by way of entering into treaties or international diplomacy is a function that clearly lies in the executive domain. reliance on their decisions amounts to an anti-democratic exercise. the same should not be done by the judiciary. individual liberties. 86 Boston University Law Review 1335 (December 2006) ‘judicial elitism’ which is often at odds with the opinions of the majority of the common people. since there is no mention of this idea in the constitutional text. the second one invokes the ‘exceptionalism’ of the Constitutional system of the United States and the third criticism is based on the idea that reliance on foreign precedents expands judicial discretion. respect for .

This line of reasoning is rather rhetorical since any country in the world can 9 .morals and progress.

• The most credible objection pertains to the expansion of ‘judicial discretion’. there is a tendency to arbitrarily cite decisions favourable to their personal viewpoints.claim such an ‘exceptional’ status for itself. Such a consequentalist approach to decisionmaking is considered to be one which dilutes the discipline and rigour expected of a common law judge who should give due regard to the doctrine of ‘stare decisis’. Instead. A much better formulation of this idea is that different countries face different socio-political circumstances and the resolution of constitutional questions must address the local conditions rather than relying on foreign law. We should be careful not to confuse the debate on the citation of foreign precedents as one which corresponds to a political divide between conservative and liberals. judges would be free to indulge in ‘cherry-picking’ for justifying their decisions rather than engaging in a rigorous inquiry into domestic precedents. Another significant question is whether it is acceptable to rely on foreign decisions as ‘tie-breakers’ in hard constitutional cases. Chief Justice John Roberts Jr. has observed that if judges are allowed to freely rely on foreign precedents. it should be viewed from the standpoint of ensuring the integrity of the judicial process. Furthermore. Lawrence and Roper have raised apprehensions of a distinct liberal bias in the invocation of international and comparative law. This is of course linked to the argument that foreign decisions should not be discussed while confronting the unique socio-political conditions 10 . the decisions in Atkins. In such a scenario.

Judges in India routinely cite precedents from U. 33(3) The American Journal of Comparative Law 505-526 (Summer 1985) in each country. climate change. there is no reason to suppress the judicial dialogue between different legal systems which build on similar values and principles. In any case. 75 Fordham Law Review 921 (November 2006) as comparative sources as part of creative strategies to read in previously unenumerated norms into the ‘protection of life and liberty’ guaranteed under Article 21 of the Indian Constitution. Reliance on foreign precedents has been a vital instrumentality for the Indian Supreme Court’s decisions which have extended constitutional protection to several socio-economic entitlements and advanced causes such as environmental protection. there is a concomitant trend towards convergence in the domestic constitutional law of different countries. law of the sea and cross-border investment disputes among others. In this era of globalization of legal standards. but there is no reason why constitutional courts in these countries should not benefit from each other’s experiences in tackling them. gender justice and good governance among others. especially those from law reviews published by American Universities. A domestic court’s citation of a foreign precedent may result in an approval or distinction from the fact situation before it.13 There is also a distinct tendency on part of Indian Courts to refer to academic writings. a foreign precedent should only be assigned persuasive value and cannot be relied on when it clearly runs contrary to existing domestic law. a practical question arises as to the relative weightage to be assigned to decisions from different foreign jurisdictions. American Constitutional Law has been a source of inspiration and doctrinal borrowing for many liberal constitutional systems that were created after it. ‘Borrowed Ideas: On the Impact of American Scholarship on Indian Law’. For instance. Smith. ‘Making itself at home: Understanding foreign law in domestic jurisprudence – The Indian case’. ‘Constitutions as ‘Living Trees’? Comparative Constitutional Law and interpretive metaphors’. war crimes. 24 Berkeley Journal of International Law 218 (2006) 14 See: Rajeev Dhavan.14 It is obvious that the mere citation of a foreign decision does not imply that a domestic court is bound to follow the former. Indian Courts have looked to international as well 11 15 See: Vicki Jackson. As I will proceed to illustrate later in this speech.15 • Another factor which sows the seeds for more ‘transjudicial communication’ is the increasing internationalisation of legal education.A. Before describing this trend in further detail. If foreign precedents are indeed considered.S. • With the ever-expanding scope of international human rights norms and international institutions dealing with disparate issues such as trade liberalisation.13 See: Adam M. It is true that the socio-political conditions prevailing in different jurisdictions will pose legal problems particular to them. I have been made to understand that the leading law schools in Europe as well as the United States are increasingly drawing students from more and more . It is at once surprising and disappointing to learn of the extent of distrust of foreign precedents amongst some prominent members of the legal community in the U. Courts besides other foreign jurisdictions and international law.S. it will be useful to examine the various structural factors that encourage ‘transjudicial communication’.

12 .

countries. practitioners and law students all over the world can readily browse through materials from several jurisdictions. the growth of the internet has radically changed the picture. commercial online databases such as the LexisNexis and Westlaw among others have ensured that judges. especially for postgraduate and research courses. • Access to foreign legal materials has become much easier on account of the development of information and communication technology. To take the example of India. When students who have benefited from foreign education take up careers in their respective country’s bar and judiciary. The diversity in the classroom contributes to cross-fertilisation of ideas between individuals belonging to different jurisdictions. • The ever-increasing person-to-person contacts between judges. Such easy access to international and comparative materials has also been the key factor behind the emergence of internationally competitive commercial law firms and Legal Process Outsourcing (LPO) operations in India. lawyers and academics from different jurisdictions have been the most important catalyst for ‘transjudicial communication’. until a few years ago subscriptions to foreign law reports and law reviews was quite expensive and often beyond the reach of many practitioners and judges as well. This takes place in the form of personal 13 . The decisions of most Constitutional Courts are uploaded on freely accessible websites. However. they bring in the ideas imbibed during their education. hence enabling easy access all over the world. Furthermore.

in Bloemfontein. in Abuja. That colloquium resulted in the declaration of the Bangalore Principles which deal with how national courts should absorb international law to fill existing gaps and address uncertainties in domestic law. both international and national. In February 1988. England (1992). and in Georgetown. Fundamental human rights and freedoms are universal. The modern Indian legal system is often described as a colonial inheritance.” Despite considerable opposition from various quarters. They find expression in constitutional and legal systems throughout the world. 1999 Australian Journal of Human Rights 27 17 The subsequent Commonwealth judicial colloquia were held in Harare. The participants affirmed there commitment to the principles that had been declared in the 1988 colloquium as well as the deliberations in subsequent colloquia held in different commonwealth countries. in Banjul. in Balliol College. ‘The challenge of Bangalore – Making human rights a practical reality’. judicial colloquia and conferences devoted to practice areas as well as academic discussions. ‘Domestic Implementation of International human rights norms’. Refer: Lord Lester of Herne Hill. Bhagwati. Lord Lester. Justice Michael Kirby. While there are numerous examples of such person-to-person interaction. This also creates compelling reasons for constitutional courts in different jurisdictions to look to each other’s decisions. Nigeria (1991). a notable example is that of an initiative taken by the Commonwealth Secretariat in association with INTERIGHTS (International Centre for the Legal Protection of Human Rights).16 Special emphasis was laid on the handling of unenumerated norms so as to strengthen the ‘rule of law’ and constitutional governance. Zimbabwe (1989). the Bangalore principles have gradually found wide acceptance with judges in many jurisdictions looking towards the growing body of international human rights law to streamline their domestic laws. In December 1998. they are anchored in the international human rights codes to which all genuinely democratic states adhere. their meaning is illuminated by a rich body of case law. The Gambia (1990).16 The text of the principles has been reproduced in: Michael Kirby. Oxford. South Africa (1993). the Commonwealth Judicial Colloquium on the ‘Domestic Application of International Human Rights norms’ was again held in Bangalore. The growth of constitutionalism will be better served with less resistance to the increasingly important discourse of comparative constitutional law. It is precisely this role of precipitating social transformation which has been actively played by the Supreme Court of India.17 It may be useful 14 Guyana (1996). Justice Mohammed Haleem and Justice Ruth Bader Ginsburg. 3 European Human Rights Law Review 273-292 (1999) to refer to the first principle which was part of the restatement and further development of the 1988 principles: “1. the first Commonwealth judicial colloquium held in Bangalore was attended by several eminent judges from different countries – among them being Justice P.N. It is through this framework of recognizing a growing international consensus on the understanding of individual as well as group rights that judges in constitutional courts can lead the way in engineering socio-political reforms in their respective countries. meetings. but 15 .

Bhagwati’s dissenting opinion) 22 Secretary. under Article 372(1) the pre-independence laws were persisted with to the extent that they were consistent with the fundamental rights.19 restraints on foreign travel.N.18 Kharak Singh v. Union of India. AIR 1980 SC 898 (majority opinion approving of death penalty in ‘rarest of rare’ cases). From the outset.20 the constitutionality of the death penalty21.. Canada and Australia. United States of America. Article 41(c) mandates respect for international law but does not directly mention foreign law. However. State of Uttar Pradesh & Ors. Union of India. AIR 1995 SC 1236 (Question pertained to government’s authority to restrain private parties from acquiring rights to broadcast cricket matches) some significant changes were made with the adoption of our Constitution in 1950. broadcasting rights22 and prior restraints on 16 . AIR 1982 SC 1325 (Justice P. AIR 1973 SC 106 (Challenge against governmental limits on import of newsprint) 20 Maneka Gandhi v. Our framers consciously chose to include a bill of rights under Part III of the Constitution of India and made them enforceable through the means of ‘judicial review’ enumerated in Article 13 and the ‘right to seek remedies for violation of fundamental rights’ under Article 32. Union of India & Ors.18 freedom of press. The opinions of foreign courts have been readily cited and relied on in landmark constitutional cases dealing with questions such as the ambit of the right to privacy.. AIR 1963 SC 1295 (Unauthorised police surveillance was considered as violative of ‘right to privacy’) 19 Bennett & Coleman v. Information & Broadcasting v.. AIR 1978 SC 597 (Challenge against government’s refusal to issue passport to petitioner) 21 Bachan Singh v. Courts in independent India have frequently relied on decisions from other common law jurisdictions. Cricket Association of Bengal & Ors. the most prominent among them being of the United Kingdom.

reasonableness and non-arbitrariness. tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity. Reliance on foreign law was instrumental to the unfolding of both of these ‘activist’ strategies. Section 39(1) of the South African Constitution declares that: When interpreting the Bill of Rights. decisions and laid down the position that governmental action was subject to scrutiny on multiple grounds such as fairness. The two strategies in question are the device of Public Interest Litigation (PIL) and the creative expansion of the ‘protection of life and liberty’ enumerated under Article 21 of the Constitution of India. The experience of considerable reliance on foreign law in the early years of a Constitutional Court’s existence has also been shared with the constitutional courts created in South Africa and Canada. In fact. 18 . the same can be said to have subsided to an extent in recent decades with the evolution of a body of domestic precedents.23 24 Since the late 1970’s the higher judiciary in India has also taken on an activist role. In a society beset with poverty. the dilution of common law requirements such as ‘locus standi’ as well as the grant of innovative remedies such as a ‘continuing mandamus’ to executive agencies were original creations of Indian judges.publication. This is so on account of the continuous increase in the caseload before our higher judiciary. This decision heavily drew from U. especially to extend legal protection to the interests of the weak and underprivileged sections of society.it was important for the Supreme Court of India to re-invent its role. Rajagopal v. AIR 1995 SC 264 Chapter 2. but considerable reliance was also placed on the practices evolved through ‘Class Action lawsuits’ in the United States. In respect of Public Interest Litigation (PIL).23 24 R.25 a case concerning restrictions on the issue of a passport to the petitioner. the Indian Courts had applied the lower threshold of ‘procedure established by law’ to evaluate the validity of governmental action that curtailed personal liberty. State of Tamil Nadu. Prior to this decision. the Supreme Court of India read in the ‘substantive due process guarantee’ into the language of Article 21. in quantitative terms the citation of foreign cases at present is the highest ever in the history of our court. In Maneka Gandhi v. By enumerating the theory of ‘inter-relationship between rights’ a foundation was laid for the creative expansion of the ambit of Article 21. Union of India. (b) must consider international law. it is in the expansion of the understanding of Article 21 that comparative analysis has played a significant role. illiteracy and entrenched social discrimination based on criteria such as caste. It has fashioned two general strategies to expand access to justice and deliver effective remedies to those parties who would otherwise be unable to move the Constitutional Courts on account of lack of financial resources and limited awareness about their legal entitlements. equality and freedom. and (c) may consider foreign law. a court. While reliance on foreign precedents was considerable in the early years of the Supreme Court of India. the South African Constitution has an express provision which mandates the consideration of international as well as foreign law in interpreting its’ bill of rights. religion and 17 25 AIR 1978 SC 597 gender .S. However. However.

Home Secretary.26 27 AIR 1978 SC 802 AIR 1981 SC 928 28 AIR 1980 SC 1579 29 AIR 1979 SC 1360 In M. Hoskot v. the Court reinforced this entitlement in Khatri v. In Hussainara Khatoon (IV) v. lower court judges were directed to personally inspect their jurisdictional prisons once a week. State of Bihar. State of Bihar.H. The idea of ‘substantive due process’ was interpreted so as to imply that free legal services were an ‘imperative processual piece of criminal justice’ implicit in Article 21. A few years later.27 wherein it held that the state could not plead lack of financial resources as a ground for not extending legal services to indigent persons.29 the Supreme Court took cognizance of news items and directed the release of ‘undertrial’ prisoners who had been in custody for periods longer than the maximum permissible sentences for their 19 .26 the Supreme Court explicitly relied on American decisions to hold that indigent persons were entitled to receive free legal services. Reliance was also placed on a British parliamentary white paper entitled “People in Prison”. take remedial measures and provide grievance mechanisms that were easily accessible to all prisoners. receive complaints from individual prisoners. The decision in Sunil Batra v. State of Maharashtra. Delhi Administration (II)28 prominently invoked academic Edward Corwins’s writings on the Eighth amendment (‘right against cruel and unusual punishment’) in order to implement reforms in prison conditions. In the said judgment.

Union of India. 47 (1919) 33 AIR 1995 SC 264 alleged offences.S.30 31 AIR 1986 SC 515 [1989] 2 SCC 574 32 Particular reliance was placed on the ‘Clear and present danger’ test for placing restraints on speech that was developed in Schenck v.31 the Court ruled that the censorship of a film which criticised the policy of caste-based reservations in public employment was inconsistent with the principle of freedom of expression.32 Similarly. With the dilution of the requirement of ‘locus standi’ in Public Interest Litigation (PIL) more and more voluntary sector organisations have moved the higher judiciary in India.33 American cases were cited to reject the constitutional validity of ‘prior restraints’ placed on the publication of a convict’s biography which detailed relations between some politicians and criminals.30 the Supreme Court held that the imposition of a tax on the publication of newspapers violated the constitutional right to freedom of expression. State of Tamil Nadu. In Rangarajan v. which also incorporates freedom of the press. In Indian Express Newspapers v. Jagjivan Ram & Ors and Union of India. the Indian Courts have repeatedly cited decisions related to the First Amendment to the U.S. in R. again relying heavily on English and American case law. seeking constitutional remedies to guarantee civil liberties as well as socio-economic 20 . With regard to the extent of ‘freedom of speech and expression’. United States. Rajagopal v. Constitution. 247 U.

In many cases the focus has been on the implementation of existing rights but the Indian Supreme Court has also invoked international and comparative sources to expand the ambit of these rights. in Virender Gaur v. The Court has ruled that the ‘protection of life and liberty’ under Article 21 of the Indian Constitution. should be understood in conjunction with Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Universal Declaration of Human Rights (UDHR).. State of Haryana. steady. Union of India. State of Andhra Pradesh & Ors. (AIR 1994 Kerala 308) the Court relied on a 1984 U. Union of India. AIR 1989 SC 2039 36 J. Likewise. Mehta v. Resolution to reiterate that the right to a wholesome environment was implicit in Article 21 of the Indian Constitution.. State of Bihar. Continuing with the same trend. i.N. in Law Society of India v. In a series of decisions invoking international legal materials.34 35 Olga Tellis v.38 it was reiterated that Article 21 includes a right to a clean environment. In M.34 health35 and education36. the Court has articulated and expanded the ‘right to a healthy environment’ as an extension of the right to life and personal liberty. AIR 1993 SC 2178 37 AIR 1991 SC 420 38 (1995) 2 SCC 377 39 (1987) 2 SCR 530. Bombay Municipal Corporation & Ors. Unnikrishnan v. gender justice and good governance.e. In Subhash Kumar v.C. AIR 1986 SC 180 Parmanand Katara v. and subtle method of extinguishment of the quality of life. The NGO’s (Nongovernmental organisations) have raised important questions that have also had a bearing on causes such as environmental protection.was violative of the right to life.39 the Court discussed several provisions of the 1972 United Nations Stockholm 21 . Fertilizers and Chemicals Travancore. severe pollution . entitlements such as housing.37 it was held that a slow.P.

There is no doubt that due consideration of the constitutional experience in other countries adds depth to the adjudication of domestic constitutional questions. For instance.40 wherein several incumbent ministers and serving bureaucrats were alleged to be involved in money-laundering. in India the importation of international and comparative law has been part of a conscious strategy of social transformation wherein previously disadvantaged groups have been made aware of their basic rights. As would be evident to all of you by now. The voters’ right to information was understood as flowing out of the ‘freedom of speech and expression’ on the premise that an informed choice was necessary for a meaningful exercise of ‘free expression’ through the act of voting. setting. In Vineet Narain v. judges should be cautious against giving undue weightage to precedents decided in entirely different socio-political settings. even though the same was merely a declaration and did not impose any domestic obligations. The invocation of international and comparative law has also been significant in the Indian judiciary’s efforts to improve accountability in public life. However. reliance was placed on the ‘Beijing Statement of Principles of the Independence of the Judiciary’ and the International Covenant on Civil Political Rights (ICCPR).42 the Supreme Court of India directed that candidates seeking election to legislative bodies at all levels were bound to disclose their educational. the arguments made against the citation of foreign precedents in India are substantially different from the debate in the U. State of Rajasthan. Union of India. and directed the establishment of the Central Vigilance Commission (CVC) an institution akin to the English ‘Director of Prosecutions’ for investigating governmental corruption and wrongdoing. However.43 This litigation originated on account of the gang-rape of a social worker and the Court proceeded to frame guidelines for the prevention of and redressal for sexual harassment at the workplace. in the early years of 23 . In the United States there is considerable opposition to the recognition of international human rights norms when they tend to curtail popular opinions on contentious issues. financial and criminal antecedents for the information of the electorate. Union of India41 and Association for Democratic Reforms v. the practice of referring to international instruments and foreign decisions cannot be carried on in an undisciplined manner. In People's Union for Civil Liberties v. However. Hence. In these cases.S. the Court explicated seven principles of public life. This act of ‘judicial legislation’ was prompted by the absence of any statutory law on the point and extensive reliance was placed on the provisions of the Convention for Elimination of all forms of Discrimination Against Women (CEDAW). Union of India. 22 43 (1997) 6 SCC 241 In the realm of gender justice it is important to mention the decision in Vishaka v. the citation of foreign precedents is a routine practice in constitutional litigation in India.40 41 AIR 1998 SC 889 AIR 1997 SC 568 42 (2002) 5 SCC 294 Conference on Human Environment.

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Libertarian Perspective. 5.1. 2. Scheme of Study.4.Various Strands of Socialist Thinkers. 2. Nature of Equality and Justice. 2. American Paradigm. 4. 3.Liberal Theory of Equality : John Rawls. 13 1.2.Marxian Radicalism. 2. . Theories of Equality.3. Competing Claims. 2. 3. Indian Case for Correcting Injustices. Chapter. 2. Common Grounds of Distributive Justice. Equality and Its Bases.II : Equality Justice and Affirmative Action : Theoretical Considerations.CONTENTS Page Chapter – I : Introduction 3 1.

65 . Varna System : The Classificatory Principle.Merit Argument.III : Indian Panorama of Equality and Justice : Ancient and Modern.4. 5. 4. 2.Reservations in Jobs (Government Services) 4. 4.Preferences in Resource Distribution. 4.3.Reservations in Legislative Bodies.5. 4.1.Efficiency Argument.4. Deterioration of the Varna System into Rigid Caste System Post Independent India : A New beginning. 4.1. General Observations. 4. 36 1.Balkanisation Argument. 4.2. Chapter.Reservations in Educational Institutions. 3.2.Rights Argument. Context of Indian Socio-Political Governance. Chapter.A. Affirmative Action Programmes : Jurisprudential Basis 4.S.4. 4.3.Action Plans and Amelioration Programmes.IV : Equality and Affirmative Action in U.

2. Policy vs Rights Approach. Competing Arguments. 5. Concluding Observations. List of Cases. 79 1. A Peep in to the History of Slave System. 3. Chapter. 4. Death of “Separate but Equal” Doctrine and Protective discrimination. 2. Bibliography List of Articles from Journals and Periodicals 91 93 95 . Group Rights vs Individual Rights. Benign Discrimination on Provisions.V : Evaluations and Conclusions. 4. Towards Equality. 3. Social Pathology : Caste and Race.1.

I Introduction .CHAPTER .

. In fact Aristotle treated justice as synonym of equality.Chand and Company. Equality and Justice are the words of passion and power. distributive justice and corrective justice.Seervai. To be just is to be equal and to be unjust is to be unequal. 1989. money. It is generally accepted that it is indeed one of the most deeply rooted conventions of contemporary political thought that the existence of inequality is a legitimate provocation to social criticism. New Delhi. Vol-XII Sir David Ross 1966 Reprint. H. 34[3] A. Indeed in Greek the word Equality means justice. 32[1] They were the watchwords of the French Revolution. Distributive justice is manifested in the distribution of the honour. resulting in the declaration of the rights of men. he wrote Justice is equality as all men believe it to be quite apart from any argument. Book V Chapter VI. In the works of Aristotle. and other things which fall to be divided among those who have a share in them. Justice is integrally related to equality. “men are born equal and always continue free and equal in respect of their rights”33[2] American declaration of Independence too declared in the same vien that “we hold these truths to be self evident that all men are created equal. In his Nichomchean Ethics.M.Kapoor. 1989. issued by the National Assembly of France after the fall of Bastille. 32[1] 33[2] Constitution of India. Declarations of the Rights of Man. Bombay.M. 1789. It has also been the distinguishing characteristic of modern civilization that Equality should not merely be an abstract ideal but a politically aggressive idea. N. 35[4] Ethica Nicomchea. Principles of Political Science. Equality and justice are synonymous.34[3] And it was with this general trend of politico-legal process the world over in the mind that the founding fathers of Indian Constitution accepted and adored equality as one of the basic organizing principles of Indian Constitution when it was brought into force in 1950.1. S .Tripathi. 35[4]Aristotle talks of two kinds of Justice. Equality and Its Bases.C. He then identifies justice in this area as some sort of equality among those who have to share the common grounds of honour.

155.37[6] But this precept of treating like cases alike and different cases differently is incomplete as it lays down no standard for determining the likeness or differences and developing such criteria of relevance has occupied the philosophers for centuries. aparthied system of South Africa. Affirmative action programme are the tools to remove the present and continuing effects of past discrimination. 36[5] 37[6] Aristotle. According to Aristotle equality means that things that are alike should be treated alike and things that are unalike should be treated unalike. Either one talks of the segregation of blacks in United States of America.Hart. educational and economic backwardness. New Delhi. H. Democracy. AIR 1993.Sawant. Oxford University Press. Such measures as protective discrimination or reservations are adopted to remedy the continuing ill effects of prior inequalities stemming from discriminatory practices against various classes of people which have resulted in their social. Injustice arises when equals are treated unequally and also when unequals are treated equally. Ibid.39[8] It also addresses the infirmities caused due to purposeful societal discrimination and attacks the perpetuation of such injustices.A. i. The varying needs of different people coming from different classes or sections of population require differentiated and separate treatment.Justice is an ethical standard of virtue in social and public relationships and consists in observance of rules of equality. The Concept of Law. or the plight of low caste people of India. Para 23. to lift the limitations in access to equal opportunities which has been impeding the access of the classes of people to public offices and administration. exploited and deprived for the reasons beyond their control. 39[8] Justice P. 1992. HLA Hart calls this precept as a central element of the idea of justice. Equality and Freedom.B.36[5] Indeed everybody is not equal by nature. SC 477. (1961) p. Prof.e. in Indira Sawhney v. attainment or circumstances. all have suffered the same fate. 38[7] Upendra Baxi.L. A whole lot of people have been discriminated against and slavery and serfdom justified on this or that ground right since the dawn of civilization in the east and the west. Union of India.38[7] Experiences of the past show that arbitrary differentiation have been made for the characteristics which are beyond the control of individuals and groups and such individuals and groups have been exploited for the purpose of ensuring the dominance of certain groups or class of individuals. . Justice requires equitable and just distribution of social goods and resources or burdens and benefits but that has not been the case in the past.

Fundamental Rights and Socio-economic Justice in Indian Constitution (1969) for detailed analysis of caste system. Castes. Caste and Class in India. However this ideal of egalitarianism did not come about in a day or two rather it was the culmination of a long process of change in the traditional pattern of a medieval caste ridden society.42[11] Since the society as a whole was responsible for the handicaps resulting from societal arrangements such as caste structures and group suppressions and these handicaps 40[9] Varna system was the Traditional way of classifying people. Old and the New (1969). The founding fathers of Indian constitution were aware of the prevailing miserable and appalling conditions of backward groups who had remained far behind and segregated from national and social mainstream and had continued to be socially oppressed and economically exploited for centuries due to various types of disabilities. the indigenous reforms and western influences. It is with the lofty aim of alleviating the sufferings of the underprivileged and exploited sections of Indian society.S. therefore has embraced equality as the cardinal value against the background of elaborate valued and clearly perceived inequalities. 41[10] KPK Shetty. 1992. 42[11] Marc Galanter. economically condemned to live the life of penury and want and educationally coerced to learn the family trade or occupation and to take to education set out for each caste and class by society. 41[10] A doctrinaire insistence on formal equality would in fact aggravate and perpetuate inequality. Indian Case for Correcting Injustices.2. Two factors basically worked as catalysts in the process. N. Ghurye. See G.40[9] The Varna System of the early vedic period distorted and turned into a rigidified hierarchical caste system continued to be stubborn fact of social life and was the factor for introduction of preferential policies in pre and post independent India. These changes were in fact the culmination of a long drawn process of transformation in the traditional pattern of caste ridden society.Tripathi Bombay (1967) Andre Betielle. According to their occupation . Law and Society in Modern India. for details see chapter III Indian Panorama of Equality and Justice Ancient of Modern. into a modern egalitarian society based on individual achievement and equal opportunity for all that the protective discrimination programme was devised under Indian Constitution. Independent India . Oxford University Press. . They believed that in a caste ridden society like ours where due to the historical reasons certain castes and classes were for decades socially oppressed. and for reconstruction and transformation of hierarchical society emphasizing inequality. in Ancient India.M.

Equality. But has it succeeded in achieving the target it has set before itself 53 years ago ? If yes to what extent ? If not why not ? shall be some of the questions to be explored in this work. a system which boasts of more than 5000 years history and continued civilization and a hoary past. To this day legends known to the humblest Indian recall the names of shadowy 43[12] Dr. Reservation and Discrimination in India. and it is doubtful whether his Greek counterpart had any but the vaguest ideas about the glory of Periclean Athens. In each case there had been an almost complete break with the past. court cases street violence and social unrest. Basham puts it. It may also be noted that scheduled castes. but raring to rise into a economic powerhouse of the world with convincing democratic credentials. now mired in the underdevelopment and medieval hierarchical social order. the peasant of Egypt or Iraq had no knowledge of the culture of his forefathers. legislatures and in the local self governing institutions.L. Reservations in jobs. scheduled tribes. On the other hand. better known as Panchayati Raj Institutions for scheduled castes. As A. . and claimed not to have fundamentally changed for many thousands of years.were relevant differences among men. Mesopotamia and Greece. have been experimenting with the protective discrimination programmes of unprecedented variety. in that its traditions have been preserved without a break down to the present day. scheduled tribes and other backward classes are a whole cluster of thousands of castes spread over length and breadth of the country.43[12] India the biggest democratic system of the world. Its civilization is very old and has to its credit many distinction.Constitutionally authorised preferences and protective discrimination created a lot of confusion and conflicts leading to heated debates. As has been seen that India had a hoary past and an elaborate socio-political system. the earliest Europeans to visit India found a culture fully conscious of its own antiquity – a culture which indeed exaggerated that antiquity. 1985. “the ancient civilization of India differes from those of Egypt . other backward classes and now women has been a grand experiment by any standard. compensatory treatment for the socially and historically disadvantaged groups was justified whenever these differences stood in the way of equal access to basic advantages enjoyed by other citizens . Deep and Deep Publications. in educational institutions. with a thousand million plus population and mindboggling variety. Until the advent of the archaeologists. Parmanand singh. New Delhi. An important thing to be noted in Indian context is that the kind of equality and justice with protective discrimination programmes in its tag which have been experimented upon during last half a centruy or so are of western vintage.

Roopa and Company. The British Parliamentary system of government was the only system with which the then generation of political leaders was reasonably familiar with. Administrative. while wholly lacking in economic. the colonial administration had more than two scores of major reform packages involving legislative.Basham. and the orthodox Brahman in his daily worship repeats hymns composed even earlier. Orient Longman. N.chieftains who lived nearly a thousands years before Christ. 1990 Rajni Kothari. When finally the Independence of India Act 1947 was passed . India has had a complete break with its institutional practices with the advent of British era.D. In India . Starting with the Charter of 1726 to the Government of India Act 1935. And therefore came into effect the Republican Constitution of India 1950 with Parliamentary form of Government and common Law system of British vintage. What is sought to be attempted here is to have a glimpse of the Ancient Model of India’s socio-political governance reflecting on the concept of equality and justice and then present modern India’s march towards egalitarianism with the help of the tools .New Delhi. How the western Political Institutions and concepts . and the consequent colonisation of the land resulted in India becoming a kind of experimental laboratory for testing the efficacy and validity of various politico-legal institutions and concepts of the west. This might provide a better insight into the issues and problems modern India is grappling with. In fact the oldest continuous cultural traditions of the world.L. That system has continued to this day and is so well grounded in Indian soil today. Judicial and Land reforms. concepts and institutions first experimented and developed in the western soil and sought to be implemented in Indian situations. however on political plain. . technological and organizational resources of the latter. India. with an open political system which is called upon to undertake functions that even the comparatively developed western political systems have been hesitant to undertake. Hyderabad 2002. one can feel that continuity of the past so distinctly.45[14] 44[13] 45[14] A Wonder that was India. A. However what is at stake is the concept of Justice and Equality which had their full play in various hues and colours in post Independent India. With the charter of Queen Elizabeth of 1600 authorising East India company to trade with the countries of the east and far east.”44[13] The interesting thing to be noted in this context is that though at the social plain. India has …. wrapped in local indigenous philosophy have functioned is a matter beyond the scope of this study.

The shrinking of the world has in this respect become a painful circumstance for India as it has bequeathed to it social and political belief system without the concomitant material and institutional props that are needed for stable and consistent change. the integrity of an historical culture and the great solidarities that were built through religious and social movements that were characteristically Indian had for long acted as buffers against an inherently fissiparous situation. 1992.47[16] understanding these traditions and diversities might provide fresh insights into the intractable problems of the modernising tendencies. the non western societies have taken over the ideological urges and social aspirations of the western societies without either the time the latter had to deal with primary issues of legitimacy or the economic and intellectual resources that were built up before they broadened their political base to include mass functions. Competing Claims. without at the same time destroying its age old traditions and diversities. In India. the legacy of a long tradition.46[15] The dillemas that India face today in terms of politico-legal issues should be seen in the perspective of a system called upon to perform the uphill tasks of modernization with open political system lacking in economic technological and organizational resources and wholly devoid of the means and instrumentalities and sometimes even necessary authority to put the power to effective use for solution of the pressing issues. 3. in the Introduction to Marc Galanter’s “Law and Society in Modern India” Oxford University Press.Historically speaking. Rajiv Dhavan. . Since the politico legal developments of India are to be seen in the context of an ancient land slowly seeking to incorporate into its womb the best elements of the culture of modern world. That is why an attempt is made to have an understanding of the ancient paradigm of India’s sociopolitical governance and then present the perspective of modernising institutions of socio-political system. The social system is undergoing profound change and has entered a process of continuous fluidity and fragmentation. 46[15] 47[16] Rajni Kothari. Ibid.

. about protective discrimination in post –independent India. by affording opportunities for participation and well being. emotions run high. pro and anti type of opposite camps. that preference induce in others an awareness that the beneficiary groups are participants in Indian life whose interests and views have been taken into account and adjusted to. preferences serve as a stimulus and catalyst of enlarged efforts for their uplift and inclusion. that preferences permit forms of action that promote pride. that preferences compensate for and help to offset the accumulated disablement resulting from past deprivations of advantages and opportunities. thereby promoting the social and political integration of these groups into Indian society. promoting their placement in strategic locations and emphasising the national commitment to remedy their conditions. 12. preferences enhance the capacity of the beneficiary groups to undertake organised collective action. self respect. 1992.n. and the entire socio-political system appears to be divided into two. Those favouring the preferential policies would give an array of beneficial effects such as that preferential policies provide a direct flow of valuable resources to the historically deprived ones in larger measure than they would otherwise enjoy. 49[18] Marc Galanter. nobody listening to the sane advice from the other side. There are competing claims and demands from equally competing equalities. op cit f. preferences stimulate the acquisition of skill and resources needed to compete successfully in open competition.49[18] The other side does not have dearth of arguments too. preferences contribute to national development by providing incentives. preferences promote feelings of belongingness and loyalty among the beneficiaries. sense of achievement and personal efficacy that enable the beneficiaries to contribute to national development as willing partners. providing opportunities and incentives and promoting their awareness and self consciousness. In Law and Society in Modern India.48[17] that. that by cultivating talents. Oxford University Press. Marc Galanter .There have been lot of confusion. that by reducing tangible disparities among groups and directing attention to mundane rather than ritual development of a secular society and that. that by broadening opportunities. opportunities and resources to utilise neglected talent. that compensatory policies provide for participation in decision making by those who effectively represent the interest of that section of the population which would otherwise be unrepresented or neglected . that by increasing the visibility of the beneficiary groups. they would argue that the resources are enjoyed by a small group of the intended beneficiaries and do not benefit 48[17] Pursuing Equality in the land of Hierarchy : An assessment of India’s Policies of Compensatory discriminatin for his historically disadvantaged groups.

1994. S. that by projecting an image of comprehensive governmental protection and preferment. preferences obstruct accurate representation of their interests. Board of Education. that preferences frustrate others by what they consider unfair favouritism and educate them to regard the beneficiaries as separate elements who enjoy their own facilities and have no claim on general public facilities. note 11. that preferences place an unfair handicap on individuals who are deprived of opportunities they deserve on merit. resources and attitudes that would enable the beneficiaries to prosper without special treatment. 50[19] According a survey conducted by Bar Council of India. that these arrangements created vested interests in their continuation.50[19] that by creating new interests which diverge from those of the beneficiaries. 4. 438 . preferences reduce their opportunities for common participation. 51[20] See Ajit Singh v. preferences lessen the capacity for organised effort on their own behalf. State of Punjab.53[22] thereby undermining secularism and that preferences impede development by misallocation of resources lowering of morale and incentive and waste of talent. preferences perpetuate invidious distinctions. Indian Judicial system which has sought to intervene and provide answers to this entire range of questions has looked for guidance on affirmative action policies all over the world specifically towards United States of America where similar kind of affirmative action policeis have been experimented and tested.Melvin Sharp. Reservations and its implications. 51[20]that preferences provide artificial protection which blunts the development and skills and resources needed to succeed without them.the groups as a whole . 3 and 4. pride. Spotts Wood Thomas Bolling v. ibid.54[23] 14th amendment of U. Marco Defunis v.. distributors Universal Book Traders New Delhi. that by emphasising the separateness of these groups. self sufficiency and personal efficacy. See Bar Council of India Review. American Paradigm. SC 75. aggravate their dependency and undermine their sense of dignity. that preferences subject these groups to manipulation by others. 53[22] Marc Galanter. that by making them dependent.52[21] allaying their concern and undermining initiative for measures on behalf of the beneficiary groups. 52[21] See Sukhdev Khanna. 90 percent of the compensatory policies benefits are cornered by 3 percent of the elite among the backwards. while discouraging the development of skills. New Delhi. 347 US 497 . 347 US 483. Allan Bakke. and Regents of University of California v. undermining self respect. C. Vol XVII. 1991. 54[23] Oliver Brown v. Jain Law Agency. AIR 1999. 1991. blunting the development of talent. preferences stir the resentment of others. charles Odegaard 416 US 312. that by recognising and stimulating group identity.

Constitution provides that “All persons born or naturalised in U. 1976. which prohibited in general terms discrimination against any person on the grounds of race colour or ethnic origin concerning any programme or activity receiving Federal Funds. Prentice Hall Inc Englewood Cliffs. positive use of governmental power to create possibility of real equality. 347 US 483. 56[25] Barnard Schwartz. It may be worth noting that in view of article 15 (4) and 16 (4) in Indian Constitution. The guarantee under this amendment is aimed at removal of undue favour and individual or class privileges on the one hand and the hostile discrimination . and the states where in they reside.American Constitutional Law. Congress joined the movement to eliminate segregation by enacting Civil Rights Act in 1964. and subject to the jurisdiction thereof are citizens of U. 55[24] Mason and Beany. However this discrepancy between its ideals and its treatment of Black people began to be corrected around 1950s and most notably in 1954. A decade after Brown. the Bakke type decision and the debate that took place in its wake is not that legally US 265.56[25] Despite the existence of equal protection clause under 14th amendment racial discrimination had continued in the U. These actions while not producing true equality or even of opportunity socially dictated the next step. liberty or property without due process of laws nor deny to any person within its jurisdiction the equal protection of laws. merely removed the legal and quasi legal forms of racial discrimination. These attempts have been viewed as mandating affirmative action programmes using racial classification. The decision of the United States Supreme Court in Allan Bakke and the debates that took place in its wake have further re-inforced the constitutionality of the Affirmative Action Programme in U.S.55[24] No state shall make or enforce any law which shall abridge the privilege and immunities of citizens of U. The decision in Brown 57[26] overturning Plessey (equal but separate doctrine) foretold that all publicly enforced sponsored or supported racial discrimination was beyond the pale. New Jeresy. that equal protection was not a bounty but was their Birthright. . 1978. American Constitutional Law. oppression or inequality on the other. 57[26] Oliver Brow et al v. et al. United States Supreme Court came strongly against the segregation of blacks in schools. Boad of Education of Topika.S.S. 98 Law Edition 873. The first step as reflected in the decisions of the Courts and Civil Rights laws of the Congress. nor shall any state deprive any person of life.S. up to mid 20th century.S.

In fact the U. which was much like the reasonable basis classification being employed by the Indian Supreme Court right since the Gopalan and Champakam Dorairajan cases. AIR 1976 SC 490. This particular issue shall be taken up in chapter III in a bit elaborate manner. A rider may be added here. N. Supreme Court upheld a classification in favour of a female Naval Officer by applying rational basis test in this case. lest the context be forgotten. which is far more difficult to handle in view of India’s varied and many hued culture. Society owed its existence to those who are unable to work. however the kind of place equality enjoys in the American and 58[27] 59[28] State of Kerala v. The declaration of 1793 in article 21 states that public assistance is a sacred debt. for the blacks and Negroes. Ballard Case59[28] as illustrative of the high judicial bunch in understanding the classificatory clue to promotion of employment of equality.S. judges and policy makers as the group or community oriented concept of equality is in harmony with the Indian Constitution and culture. French equivalent of affirmative action programme in United States or in India is the concept of Fraternity . Though the system of equality that has been followed in the fifth Republic has served the French mentality so well.Thomas. Reference may be made to Justice Krishna Iyer’s pronouncements in Thomas decision 58[27] that repairing the handicaps of the blacks in America was comparable to the problems of repairing the handicaps of the Harijans in India. 419 US 351 (1974) . which is directed towards helping the poor and the disadvantaged members of society. Girondin proposal for rights contained the statement that equality consists in everyone being able to enjoy the same rights. but the context of “ historical injustices” is absolutely different in India from that of United States of America and the plight of Blacks is different in many respects from the plight of Schedule castes and Schedule tribes in India.relevant for Indian jurists. Similarly justice Iyer referred to Schlesinger v.S. A word about French Constitutional scheme of protective discrimination would not be out of place here. judicial pronouncements and academic and philosophical discussions in the United States are referred to and indeed they are helpful in understanding many a complex and complicated issues of India’s protective action programme. that though the affirmative action programmes for the historical injustices in India is roughly comparable with the remedial measures being adopted in U. suffice is to say here that the dynamic of civilizational context is absolutely different in Indian Context from that of America. peculiar and contradictory as it is. however the heated debates .M.

as to how do they work upon the affirmative action programmes. Deep and Deep Publications 1985. Men differ obviously and profoundly in almost every respect.H.61[30] Nature has not created all men equal. 60[29] How do various systems really design and plan their resources would be an interesting point and one of the main foci of this study. Nature has endowed men with different with different capacities in satisfying them. Cole put it. Scheme of The Study. whose success does not depend merely upon the existence of provisions of preferences. Absolute equality or what some would call it natural equality is an impossible ideal . in mental ability and creative equality. Equality. 60[29] 61[30] Parmananda Singh. designing and provision for sufficient resources. The present study aims at looking at three systems. It has been noted above that equality is not the fact of life. Equality does not in any case imply identity of reward for efforts. Reservation and Discrimination in India.Indian system is unlikely to be achieved in French system. general acceptability of such schemes both by the recepients and those excluded and above all upon the capability and political will to make the schemes work with minimum tensions and resentments. It must however be noted that Affirmative Action Programme(as they are called in U. No one with the eyes in his head can or will deny the existence of these human differences. India. . equality in its popular sense is inconceivable.S. 5. A Guide to modern Politics. “Radically unlike in strength and physical powers. United States of America and France.) or the Protective Discrimination Programmes (as they are called in India) are some of the schemes of preferences. They are as G. either in socio-political debates or constitutional litigation in Conseil Constitutionnel. It may also be noted in this context that the affirmative action programmes are only one of the means of promoting equality for the oppressed and underprivileged sections of society. in both the capacity and willingness to serve the community and perhaps most radically of all in power of imagination. rahter their success depends upon the careful planning .Inequality is an inescapable natural fact and it has to be accepted by society. Nature has itself created such vital differences between men that no power can make and keep them equal. which evidently are the compensatory measures for historical deprivations and come out with some comparative conclusions of the similarities and differences amongst them.D. Nature has not willed that all men should be equal .

And chapter V shall attempt to present a comparative evaluation of Indian. A Grammar of Politics. this chapter shall also cover the present model of socio-political governance under Indian constitution reflecting on the concept of equality and justice.Therefore saying that men are born equal and always continue to be so. With this purpose and perspective in mind the second chapter.Laski.62[31] In such a situation picking up this or that group for compensatory discrimination itself is a difficult task. Are these justifications in consonance with the principles of justice and equality ? Or do they suffer from some limitations ? Whether these justifications have universal applications ? or do they suit the needs of certain politico-legal system alone ? Would be some of the questions to be explored in this work. Chapter III shall present the panoramic view of Ancient India’s socio-political governance and how the concepts of equality. justice and affirmative action programmes or protective discrimination have been viewed in India. is an erroneous a statement as saying that the surface of the earth is level. . following this introductory chapter. better known as Reservation system in India. Starting from Plato and Aristotle to Hart and Dworkin. 62[31] Harold J. philosophers have sought to provide justificatory arguments for classifying people or a section of population for special treatment. The quest for identifying the relevant criterion for differantiation have occupied philosophers for centuries . and American preferential treatment of historically disadvantaged sections of population. shall attempt a theoritical insight into the concept of equality justice and affirmative action programme. As has been indicated above . Chapter IV shall have a brief overview of the equality and affirmative action programme of United States of America. and France.

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. But it is only in a society marked by large measure of economic equality that such varieties were likely to find their expression and due need of appreciation.. The expression “Equality” is incapable of a single definition. S.CHAPTER.II Equality. Annual Number March 1991. Although he urged that social policy be directed to suppress to increasing equality.no one desires to be rich. economic equality or equality of consideration for all persons or equality of opportunity. Nature of Equality. he never intended to convey the idea that it should suppress varieties of individual character and genius. viz. that an egalitarian distribution is a necessary pre-requisite to any meaningful freedom and development. Mill realized the importance of encouraging the widest possible diversities of mind and taste. 63[32] There are those who while being indifferent to or even dismissive of one aspect of equality are deeply committed to another aspect of it. rather others. But while there are some that argue that an egalitarian distribution is inimical to freedom and development there are some that insist on precisely the opposite. as it is a notion of many shades and connotations and has been viewed by Philosophers from many different angles. There is a variety of ways to express the idea of equality and different writers tend to emphasize some forms of equality.64[33] 63[32] Alexis De Toqueville said that men have greater passions than for liberty. J. 1. as of overriding importanceequality before law. 64[33] Pulin B Nayak. equality of basic human rights. For example most schools of thought in fact cater to the view that complete equality would be difficult to come by. Justice and Affirmative Action : Theoritical considerations. It is a paradox that the more anxiously a society endeavours to secure equality of consideration for all its members the greater will be the differentiation of treatment. He argued that the best state for human nature is that in which while no one is poor. “On Equality and Distributive Justice” Economic and Political Weekly.

1995 69[38] Rashdall Hastings. education and free time68[37]. to say that what is recognized as being of value in one person must be recognized as being of same value in another. Rashdall advances the principle. Bernard Williams. such as utility. However Walzer (1973) has emphasized. But at the level of societal arrangements. therefore. Blackwell. Justice and Equality. In a “ Companion to Contemporary Political Philosophy” Edited by Robert Goodin and Philip Petit. By Michael Walzer. all men deserve to be given certain kinds of treatment. Oxford 1995.that men are equal. work. that it ought in some cases to exist. “the idea of Equality is used both in a statement of fact or what purport to be a statement of fact. . and in a statement of political principles. New Delhi 1993. The Theory of Good and Evil. They have a right to certain kinds of equal treatment in crucial aspects of their lives. It is in this later sense that the notion of equality belongs to the sphere of values. but honour.65[34] According to Bernard Williams.69[38] He takes it to be self-evident. to name a few of the commonly examined concepts. that every human being is of equal intrinsic value and is. He. Nor have most philosophers wanted an equality which is total. of individual circumstances. All of these refer to what we might call equality. at a wider level one may legitimately be concerned with the notion of equality involving not just wealth and power. It is in moral judgements to the effect that equality is a good.67[36] Indeed there are few words that admit of such wide meanings and interpretations as that of equality. equality before law and equality of treatment. entitled to equal respects as an exact expression of the Christian ideal of brotherhood. points out that the principle does not require that every person be given an equal share of wealth or of political power but rather equal consideration in the distribution of ultimate good. and that this is so in spite of the obvious ways in which men are unequal in strength. though not in all. or inequality. 78 Ethics 10. to be an analytical judgment. in “A companion to Contemporary Political Philosophy” edited by Robert Goodin and Philip Petit. 223-224. Oxford. Economists usually focus on the notion of equality of income. there are important notions of equality of opportunity. however. Functionalism. (1907) Vol I. or aims that men should be equal. wealth or some measure of individual well being. Edited by Upendra Baxi.It is no doubt frequently asserted that all men are born equal. The Idea of Equality. Oxford University Press. Equality and Freedom. regardless of obvious differences between one man and another. (1967). Blackwell. The claim that men are equal is a claim that in fundamental respects. 67[36] Democracy.66[35] as at present they are not. provided it is really the same 65[34] 66[35] Dallmayer. talent and intellect. 68[37] Complex Equality. but there is no unanimity as regards the common attributes which makes them equal.

n. but the intrinsic worthiness or every human being. “the Idea of Equality” in “A Companion of contemporary Political Philosophy. rank. that “justice as fariness rests on the assumption of a natural right of all men and women to equality 70[39] 71[40] Ibid. a good legislator by one at least equal in talent for legislation. Dworkin reaches the same conclusion. and that is the case with every human being. priceless. skills. arbitrary inequality. or rather.70[39] This meaning of of equality was clearly identified by Immanuel Kant in “Fundamentals of Principles of the Metaphysics of Morals”. He who affirms the principle of human dignity in this sense respects equality.thing that is implied in the assertion that it has value. Dignity here connotes not pride or manner. This very thought is expressed in the now commonplace remark that the dignity of every human being must be respected. They are purely formal but they do offer guidelines on how to distribute the good once its nature is known. A good cook may be replaced by a better cook. commodities that satisfy human wants and needs have a market value. What is implied by the principle of equal respect for all persons is impartiality in the treatment of all men. admits of no equivalent. No man he asserts. may be said to have emotional or imaginative value. on the other hand. . talents. and. it is a quality intrinsic to his being. has a right to anything unconditionally except the right to be equally considered. it rules out inequality. See Bernard Williams. But as a person. op cit f. property or beliefs. What appeals to human taste. is above all value. for what has relative merit may. without regard to his intelligence. therefore. page-147-148. But as men they do not have relative merit. inequality not justified by the requirements of social well being.6. and in the restricted sphere of conduct we may and often must appraise their relative merit. in so far as it has that merit. AO. So. cannot of themselves solve practical moral problems. even in the absence of need. or some other general and rational principle in the treatment of individuals. Such axioms. Whatever has a value can be replaced by something else which is equivalent in value. be replaced by another like entity with equal or greater merit.71[40] Analysing Rawls’ theory of Justice. no human being can possibly be replaced by another. One may be better cook than another or a better student or legislator. They are invaluable. But some things in the world cannot be measured on any scale of values. What entitles him to a place in this sphere is simply his having human dignity. has a dignity. when he distinguished the possession of value from the possession of dignity. he agrees. The rights of man are all ultimately resolvable into the one supreme and unconditional right –the right to consideration. whatever.

75[44] Harold Laski. All barriers of birth. He goes on to say that “ Rawls’ most basic assumption is not that men have a right to certain liberties that Locke or Mill thought important. first of all. 1991. Thus according to Dworkin. that special privileges of all kinds should be abolished. There should be. Thus human beings already possessed this right when they agreed on the two principles of justice enunciated by Rawls. Harvard University Press. My vote in the election of the representatives is as valuable and potential as that of any other.73[42] These inequalities and privileges persists even in our own times. A Grammar of Politics. The idea of equality has. unless I enjoy the same access to power 72[41] Reservation Crisis in India. This right according to Rawls is owed to human beings as moral persons. 1997.72[41] Looking at the concept of Equality from a common man’s point of view.C. the principle of equality was originally. Bar Council of India Trust. Principles of Political Science. Right to equal concern and respect is the most fundamental right of all the rights. creed and colour should be removed so that no one suffers from any kind of social or political disability. New Delhi. a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice. and follows from the moral personality that disntinguishes humans from animals. S Chand and Company. sex. therefore grown out of the idea of privileges. refers to the conditions created in society by a limited number of privileged people.of concern and respect. This right is more abstract than the standard conceptions of equality that distinguish different political theories . Kapoor. It means that I am entitled to the enjoyment of all those social and political privileges to which others are entitled. Also see Taking Rights Seriously by Ronald Dworkin. because.74[43] This class of vested interests makes the fulfilment of their private desires the criterion of the public good. Inequality. Equality means. but that they have a right to equal respect and concern in the design of political institutions. in short. 74[43] Ibid. 73[42] A. . caste. who have always dominated the State and used its power for their own purpose. no difference between man and man and whatever rights inhere in another by virtue of his being a citizen must inhere and to the same extent in me as well. It permits arguments that this more basic right requires one or another of these conceptions as a derivative right or goal. as such. Universal Book Traders. New Delhi. wealth. a common man’s protest against the gross inequalities created by the superior claims of the nobility in ancient societies. 1984. I can also become the recipient of any office of the State for which I may be eligible. 75[44] To refuse any man access to authority is a complete denial of his freedom.

means that whatever conditions are guaranteed to me. liberals. dynamic and changeable. In this section we shall have a brief look as to how various political ideologies theorise the concept of equality to show that though the thinkers of all hues look at it from different perspectives. However. libertarians. There can be no equality in a society where a few are masters and rest are slaves. He accepts his place in society. I live in am atmosphere of contingent frustration. 1. in the form of rights. 1. It is this element of justice that leads to the adoption of policies on affirmative action programmes. that aim at the realisation of pluralists society and diversity in politics. The chief characteristic of a right is its equalitarian basis. Fabians and Marxists. Demands of justice compels the state system to resort to the protective discrimination kind of policies and that precisely forms the jurisprudential basis of benign discrimination. since liberalism has been a very amorphous concept. but there is surprising unanimity in their line of thinking and almost all of them come to some common conclusions ending up in talking. Theories of Equality. in terms of justice to all individuals and groups. economics religion and cultural . there is nothing like a liberal theory of Equality.as others. The principles of equality. be guaranteed to others and that whatever rights are given to others shall also be given to me. One who lives in an atmosphere of frustration has neither any inspiration in life nor any incentive for it. It is in this way that the faculty of creativeness is lost and men or a class of men become “animate tools” which Aristotle described as the characteristic of the natural slave. let’s have a look at their viewpoints about equality. We shall cover. though they will have different perspectives in their conceptions of justice. He accepts his place in society. shall also in the same measure. Strictly speaking. accordingly.1 Liberal Theory of Equality : John Rawls. But before we talk of the common conclusions and common concerns amongst philosophers of various hues. representing a system of ideas. implying almost a compelling passion for liberty. as a permanent condition of his life. which accident of birth has given him.

79[48] The difference principle holds that in order to treat all persons equally. For Rawls basic liberties have priorities over other primary goods and each person is to have an equal right to the most extensive basic liberties compatible with a similar liberties for others. Though we find an espousal for equality of all in Locke. 1972. on the question of bringing about greater equalities. . More specifically. He observes. income and wealth. they might themselves occupy. 1972. Rawls makes a persuasive case for a conception of justice that would improve the chances of the least advantaged members of society. Pulin B Nayak “On Equality and Distributive Justice”.77[46] Rawls has identified what he had called primary social goods.76[45] Rawls argues that the principles of justice are those that would be chosen by free and rational individuals if they had to choose behind a veil of ignorance as to what position in society. society must give more attention to those with fewer native assets and those born into the less favourable social positions. allow a person to achieve ends he could not rationally comtemplate otherwise. these inequalities are to be somehow compensated for. According to him.life. the rule would obviously be more egalitarian than the Utilitarian principle. powers. it would not be far of the mark to say that John Rawls represents that face of liberalism which vies for realization of equality of all individuals emphasizing on the care of the least privileged. Since the Rawlsian prescription is geared exclusively towards improving the lot of the worst off members of society. John Rawls. Economic and Political Weekly. Rawls is very clear in his approach that undeserved inequalities call for redress and since inequalities of birth and natural endowment are undeserved. 76[45] 77[46] Oxford University Press. There are things that every rational man is presumed to want including rights and liberties.. “Greater intelligence. Rawls calls this “the difference principle”. 79[48] A Theory of Justice. opportunities. and the basis of self respect.P. The idea is to redress the bias in the direction of equality. Rawls is for ensuring an equitable distribution of primary goods . whatever may be one’s system of ends. Mill and Greene.100. “A theory of Justice”. Bentham. Oxford University Press. though he concedes that the attempt would face several difficulties. Having ensured basic liberties. March 1991. primary goods are the ncessary means.78[47] He then goes on to propose an index of primary social goods. 78[47] A Theory of Justice. wealth and opportunity for example. maintains Rawls. In other words inequality is only justified if it results in the poor being better off in the social dispensation. Annual Number. however in modern times the most forceful argument has been developed by John Rawls in his seminal work.

Rawls writes. A Companion to Contemporary Political Philosophy. The two conceptions of equality proposed by Rawls together make a case for the elimination of substantial inequalities. income and wealth are not valued under utilitarianism as physical units. some of which will almost certainly give higher status or prestige to those who are more favoured and equally as it applies to the respect which is owed to persons irrespective of their social position. is “Fetishist”. which is owed to human beings as moral persons. “some writers have distinguished between equality as it is invoked in connection with the distribution of certain goods. Amartya Sen in a incisive piece. and there is another. since utilities are reflections of one type of relation between persons and goods. Equality of the first kind is defined by the second principle of justice (difference principle) which regulates the structure of organisations and distributive shares so that social cooperation is both efficient and fair. on the ground that the notion of Primary goods. Rawls further emphasises that the natural basis of equality explains its deeper significance and it is defined by such natural duties as that of mutual respect. p/511. but in terms of their capacity to create human happiness or to satisfy human desires. to have an entirely goods oriented framework provides a peculiar way of judging advantages. rather than taking advantages to be a relationship between persons and goods. 80[49] 81[50] Ibid. “Rawls takes primary goods as the embodiment of advantages. “Equality of what” 81[50]criticises Rawls . 80[49]The later is defined by the principle of justice whereby each person is to have an equal right to the most basic liberty compatible with a similar liberty for others. op cit f. Even if utility is not thought to be the right focus for the person-goods relationship.” Utilitarianism or more particularly welfarism does not have this fetishism. Indeed the difference principle admits of inequalities to the extent that the well being of the worst off member can be ensured to be maximised. . 6. more fundamental one.It must be noted that Rawls thinks of primary social goods as embodying one of the two conceptions of equality. For example. But equality of the second kind is fundamental”. but they would not lead to elimination of all inequalities.n.

From this he went on to argue that if we treat equally. who are unequal.Futher. 1. the first requirements is that we free ourselves from the belief in factual equality. Libertarian perspective on equality has been articulated in the most forceful manner by F. people seem to have very different needs varying with health. But. We may continue to use this hallowed phrase to express the ideal that legally and morally all men ought to be treated alike. London. all individuals.Hayek. constitution of Liberty . but not both at the same time. Chicago University Press. in fact.Nozick. but overlooking very widespread and real differences. temperament and even body size (affecting food and clothing requirements). the result must be inequality in their actual position.82[51] In the context of assessing utilitarian equality. longevity. If people were basically very similar then an index of primary goods might be quite a good way of judging advantage. Sen emphasises that the primary goods approach seems to take little note of the diversity of human beings. then the utitlitarian concerns with maximising the sum total of utilities would push us simultaneously also in the direction of equality of utility levels. Basil Blackwell. A corresponding remark can be made about the Rawlsian difference principle. and we can achieve either the one or the other. . Thus utilitarianism could be rendered vastly more attractive if people really were similar. 84[53]Nozick 85[54]and Letwin86[55] amongst others. Milton Friedman. (1960) 85[54] Anarchy State and Utopia by R. in his substantial work “the constitution of liberty” emphatically states. Oxford (1974) 86[55] Against Equality. Mc Millan London (1983) 87[56] Constitution of Liberty. Routeledge and Kegan Paul.A. Hayek therefore goes on to conclude that equality before the law and material equality amongst individuals are in necessary conflict with each other. (1960) 84[53] Capitalism and Freeom. So what is involved is not merely ignoring a few hard cases. work conditions. But if we want to understand what this ideal of equality can or should mean. F. 87. (1960) p. Since equality before the law is regarded as a necessary prerequisite of a free society. Libertarian Perspective. it was argued that if people were fundamentally similar in terms of utility functions. 82[51] 83[52] Ibid.2. this would automatically result in material inequality. Judging advantage purely in terms of primary goods leads to partially blind morality.Hayek. that as a statement of fact it is just not true that all men are born equal.87[56] Therefore the only way to place them in an equal position would be to treat them differently.83[52] Friedman.A. location. climatic conditions.

Nozick and Letwin. It is one thing to acknowledge that in-equality is a consequences of the natural order.Hayek further argues that the boundless variety of human nature. Essentially the same kind of view is held by other libertarians. Suppose that each worker were paid the same annual wage. then some would earn more than others per annum. if they worked different number of years during their lives. wealth. Our objection is against all attempts to impress upon society a deliberately chosen pattern of distribution. then their lifetime incomes would be unequal. such as Friedman.88[57] That is. savings and investment etc. Its evolution has made it probably the most variable amongst all kinds of creatures. Thus any rule imposing equality on pay per hour. consumption. All this goes on to suggest that the quest for perfect equality in individual circumstances is bound to prove fruitless. because of ill health. whether it be an order of equality or of inequality. or other objective conditions. it would necessarily and inevitably create inequality in one or more of he other dimensions. And this is not all. year of life would necessarily impose inequality on pay realised during any other interval of time. This would imply that if workers were allowed freedom to choose the number of hours of work per annum. then their hourly wages would be unequal . I has been well said that biology. opportunity. . or whatever reason.By William Letwin (1983) Mc Millan London. confers on every human individual a unique set of attributes which give him a dignity he could not otherwise possess. owing to differences in health. if a government were to equalise any one material dimension of life. Hayek declares that a demand for equality is the professed motive of most of those who desire to impose upon society a preconceived pattern of distribution. Suppose for example government sets out to equalise pay by assuring each worker the same wage rate per hour of work done. the wide range of differences. expenditure. such as income. This will not tell us anything about the persons. but it is quite another to make a case for non intervention. Further. With 88[57] Against Equality. Suppose on the other hand that the government decrees to pay the same amount to each worker annually and if different workers worked different number of hours per year. with variability as its cornerstone. in individual capacities and potentialities is one of the most distinctive facts about the human species. work stoppage. Letwin for example argues that any egalitarian policy would necessarily be internally contradictory. or work effort.

B. Hayek writes. It may however be noted that the libertarian thinkers such as Hayek and Friedman who had recognised the difficulty of ensuring equality of individual circumstance have invariably at the same time argued for the elimination of moral or political inequality. equal annual pay may even within one lifetime produce remarkable inequality of wealth.Nayak. Further if inheritance is permitted then inequality of wealth and income may considerably intensify over time.42. It is presumed that each of these notions of equality goes towards enhancing individual freedom. The argument is that an equal world is inimical to growth and incentives89[58]. There is a fundamental presumption here that inequalities must be tolerated if they result from differences of personal effort and merit and not as the result of different opportunities. Most importantly. “The rapid economic growth that we have come to expect seems in a large measure to be a result of this inequality and to be impossible without it. 2. among other related notions. with some far ahead of the rest. individuals would in general. In a similar context. respond in different ways to perform risky activities than would involve greater disutility.n. Most of the relevant discussion of this issue has therefore centred on equality of opportunity and equality before the law. Hayek contends that new things often become available to the greater part of the people only because for some time they have been the luxuries of the few. Progress at such a fast rate cannot proceed on a uniform front but must take place in echelon fashion. p. Thus if a government were to ensure equality with respect to some variable then individuals will in fact end up differences with regard to some other variable or variables. While it is not necessary to over-emphasise the point that complete equality is impossible to achieve. F.Hayek.A. “to be consistent with both the principle of individual freedom and personal responsibility and 89[58] 90[59] P. knowledge is a vital part of the process of progress and knowledge and its benefits can spread only gradually and the ambitions of the many will always be determined by what is as yet accessible only to the few. op cit f. or equality of results which would require action by the state to correct free market outcomes. in general entail differences in individual well being. constitution of Liberty. in a regime of uniform pay. then this would .different saving propensities. . it is worth noting that libertarians usually take the position that it is undesirable. The principle of equality of opportunity ensures that every person has an equal chance to do what he or she wishes and has the capacity for. If individuals were forced to perform these activities.” 90[59] After all. This is to be contrasted with the notion of equality of outcome. Harry Jhonsom ( 1975) has observed. On Equality and Distributive Justice.

Oxford 1988. Since one cannot ensure complete equality in individual circumstances one would have to conclude that equality in societal rules. Equality before law is equally important and necessary requirement for libertarian thinkers.the requirements of efficient economic organisation. But he was not merely questioning the practicability of this goal of equality. policy should concentrate on providing equality of opportunity rather than equality of measured income ex post results. In the writings of both Marx and Engels there are statements to the effect that equality is fundamentally a bourgeois idea. having no place in the statement of working class demands or objectives. one must ensure a substantial measure of equality in individual circumstance. . Marxian Radicalism. But in fact there are no explicit espousals of the notion of equality in Marx’s writings. Marx presupposes a society wherein “ the instrument of labour are common property and the total labour is cooperatively regulated. particularly economic equality. 1. The problem. equality of opportunity and equality before the law can only be strictly valid as a slogan. viz. It is a matter of considerable interest and importance that Marx was clear in his recognition of the impossibility of ensuring complete equality in individual circumstances. Basil Blackwell. and where the proceeds of labour belong undiminished with equal right to all members of society. he was in fact not even willing to acknowledge this as an ideal worth striving for. Marx does not conceal his preference for the notion of the abolition of all class distinctions as being the more 91[60] Agnes Heller.3. Labour and Human Needs in a society fo Associated Producers in Tom Bottomore (ed) Interpretation of Marx. It does not need to be overstressed that a rich man has a great advantage over a poor man when he is involved in the courts of law. however is that that in order to ensure any meaningful application of the above two principles. Since Marx was fundamentally against oppression in any form one would have expected him to argue for an egalitarian world. It is for this reason that Heller (1988) has observed that “Egalitarianism has no bitterer enemy than Marx himself”91[60].

in selected works by Karl marx and F Engels. after labour has become not only a means of life but life’s prime want. in the first phase of the communist system. the equality consists in the fact that measurement is made with an equal standard labour. or can labour for a longer time. one will in fact receive more than another . In fact precisely the opposite is the case. All the means of production are socially owned and the question of distribution in the sense of private 92[61] Karl Marx “Critque of Gotha Programme. 93[62] Ibid. Thus. one will be richer than another. and will be so precisely because it is a distribution according to equal right. after the productive forces have also increased with the all round development of the individual and all the springs of cooperative wealth flow more abundantly.relevant notion as compared to the objective of the elimination of all social and political inequality. with an equal performance of labour. one has more children than another and so on and so forth. According to him even the higher phase of communist society is not a world that is characterised by equality in individual circumstances.only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribes on its banners: “from each according to his ability to each according to his needs. after the enslaving subordination of the individual to the division of labour. He goes on to say. and so on. this “equal right is an unequal right for inequal labour. . “in a higher phase of communist society. right instead of being equal would have to be unequal. Marx goes on to say. Yet because one man is superior to another physically or mentally and so supplies more labour at the same time. According to Marx. has vanished. To avoid all these defects. one worker is married.93[62] After the first phase of communist society is over the principle of equal right to labour would give place to a system where labour not only becomes a source of livelihood but life’s principal need. Human beings are regarded as unique and separate individuals and an environment is provided where each person gives of his best and is allowed to partake of the social cake to the extent of his needs. and therewith also the antithesis between mental and physical labour. Progress Publishers. Moscow 1975.”94[63] Marx conceptualises the higher phase of communist society as a world of plenty where each person is allowed to consume as per his needs and contribute to the national cake to the best of his ability or capability.” 92[61] Thus distribution in the first phase of communism will inevitably be an unequal distribution. and hence an equal share in the social consumption fund. 94[63] Ibid. another not. “the right of the producers is proportional to the labour they supply.

Marxists have always taken a drastic redistribution for granted. Implicit in this idea is his belief that even though the rewards of the producers are not going to be exactly equal.Nayak. 1. he is for abolition of class distinctions. Therefore we shall have a brief look on the views of the Fabians . Various strands of Socialist thinkers : Fabians and Social Democrats. It is bit interesting to note that the way the concept of equality has developed and come to be understood in the democratic world today.95[64] It may not be possible or even appropriate to touch on the views on equality in diverse strands of socialist writings in view of the relevance of the topic. income differentials are not likely to be great because society will fulfill such social needs as education and health care and the education from the social product. The socialist thinkers though less radical in their approach. . Thus while Marx was not interested in pursuing the goal of equality in individual circumstance he was at the same time careful to emphasise the importance of equality in the sense of eliminating all class distinctions. op cit f. He says that with the abolition of classes in socialist society all social and political inequality arising from them would disappear.n.appropriation of income or wealth amongst individuals simply does not arise. Thus it would be seen that while Marx is indifferent to the elimination of all social and political inequality.4. This has been for them the central issue of public policy and to avoid this was to avoid all issues. for these needs grow considerably in comparison with present day society and it grows in proportion as the new society develops. and social democrats. 6. the socialist thinkers and writers of the past century and a half are among the strongest proponents of equality . have advocated the redistribution of income and wealth by one device or another. It is when the class distinctions are eliminated that social and political inequality arising from them would disappear of itself. which for him is of fundamental importance.B. Thus equality of status is established by doing away with the notion of private ownership of holdings altogether. 95[64] P.

They were all convinced that the institution of private property was the principal. “without regard to the vulgar irrelevancies of class and income”. .These were a small groups of intellectuals. Tawney made a powerful case for tailoring economic and social organisations to establish institutions to meet common needs. The original Fabian thinkers like Webb and Shaw.Tawney. Equality. particularly as a system that engenders abject poverty. Most of them did not share Marx’s belief that capitalism must inevitably collapse though they were careful to acknowledge that the system is prone to periodic slumps. wealth and social status. He emphasised the crucial role of education to make children “capable of freedom and more capable of fulfilling their personal differences”. inhuman working conditions. They in fact were struck by its spectacular long run growth and saw no reason to doubt that it would continue to reap the benefits of successive rounds of technological innovations. extolled the virtues of individual freedom and competition. and stark inequalities of income. By the 1930s they came to accept the necessity of mixed economy. yet paradoxically. He believed that it was the individuality in each person that ought to be emphasised and encouraged. and the source of most of its afflictions. inherited wealth and public goods. viz. and the equalisation of opportunities for all to secure certain basic goods and services. in his classic work. inheritors of the philosophical traditions of Bentham and Mill. “Equality” 96[65] made a forceful presentation of his equalitarian ideology. political and economic issues. Tawney lamented that the twin pillars of inequality.H. municipalisation and government regulation of industry. Socialism for most of these thinkers meant nationalisation. which would be a source of common enlightenment and common enjoyment. Unwin London (1964) Ibid. the removal of collectively imposed social and economic inequalities. health and other merit goods.H. 96[65] 97[66] R. Shaw. R. They were active and resourceful paphleteers and wrote on all manner of social.Tawney. all shared Marx’s moral outrage at the evils of capitalism.97[66] and make them communicate with each other at an equal level. if not the sole cause of the malaise. such as education. that stood in the way of ensuring equality of opportunity were Britain’s hereditary curse. and believed these to be as important as the freedom of speech or the freedom of the press. most of them were not straight enemies of the established order and in fact were uncomfortable with the Marxian language of class war and revolutions. however. They shared a common conviction of the necessity of the state to intervene to take charge of the commanding heights of the economy and to actively participate in the provision of education. His concern was with fundamental equalities before the law. Offering one of the most perceptive critiques of the British class system.

They do talk about equality of opportunity and equality before law.98[67] 2. London (1976) . so that oppression and exploitation may be eliminated and all social and political inequality arising from them would disappear by itself.A. In the first phase of communism he envisages inequality emerging from the equal right to the labour. The argument is that an equal world is inimical to growth and incentives. 98[67] J. However. Marx’s view on equality it turns out. believing that some form of inequality is not only desirable for the purpose of long term growth. Social democrats and the Fabians are in favour of substantial measure of equality but they are not in favour of doing away with basic framework of free market capitalism. for it would thwart incentives and growth. Allen and Unwin. but also is part of the natural order of things. He would rather prefer to eliminate the class distinctions. The above discussion brings us into a position where we can draw some conclusions. that he is rather indifferent towards the idea of equality of individual circumstances. This led Schumpeter to argue that they were the kind of socialists who believed in the productive success of capitalism while they deplored its distributive consequences. While Rawls makes a substantial case for reducing inequalities. but in the final stage of communism he envisaged a world where equality in the sense of distribution of gods or income would cease to have meaning.As such a strong case for social justice was made out by Tawney. they could not extricate themselves from allowing the primacy of private ownership of the means of production to continue. in the sense of equal distribution of commodities and income. The rapid economic advance that we have come to expect seems in a large measure to be a result of … the unequal circumstances. First of all it is clear from the above that almost all thinkers from liberals to libertarians. and Marxists to social democrats agree on the point that equality of individual circumstances is an impossibility. Capitalism. and his difference principle allows maximum advantage to the worst off members of consistent with some inequality still remaining. He concedes that if inequalities benefit everybody by drawing out socially useful talents and energies. then they would be acceptable to all. Socialism and Democracy. Libertarians on the other hand are clear in their minds that equality in individual circumstances is not even desirable. Common Grounds of Distributive Justice. but equality in the sense commonly understood is clearly undesirable for them.Schumpeter. and this was the central issue to the hardcore thinking of Fabian and Social democrats.

H Tawney 100[69] is in favour of substantial redistribution and in particular public provision for education. Since State is an instrument. wherein all class distinctions have been abolished. R. for all children to make them capable of 99[68] 100[69] Taking Rights Seriously. A system is just if it takes care for the redressal of undeserved inequalities and since inequalities of birth are undeserved these inequalities are somehow to be compensated for. The principle of Equality of Opportunity is that every person has an equal chance to do what he wishes and has the capacity to do. They have centred their discussion on ensuring “Equality of opportunity and equality before law”. the state in the hands of Proletariate shall be the medium to be used against the bourgeois and other reactionary and counter revolutionary forces and affecting a radical redistribution of resources. Rawls talks of ensuring equality of opportunity.H. “My aim is to regulate inequalities that affect people’s life chances and not the inequalities that arise from the people’s life choices”. used by dominant class to suppress and exploit the dependant class. Rawls seeks to ensure a scheme of things what Prof Dworkin calls “endowment insensitive and ambition sensitive”99[68] dispensation. which are individual’s own responsibility. 1997 “Equality” by R. London (1931). wherein substantial measure of equality is guaranteed without doing away with the basic framework of market capitalism. because it ensures. Social Democrats are in favour of ensuring a system (A Just one). that fate of the people is determined by their choices and not by their circumstances.Unwin.Tawney.(though as has been noted everybody will have a different conception of justice) and etch out some kind of an arrangements for redistribution of resources. The presupposition is that this ensures justice and enhances individual freedom.Secondly almost all the thinkers make out a case for ensuring justice. It is not necessarily a system where equality prevails for “Equality” is fundamentally a bourgeois idea. having no place in the statement of working class demands and objectives. a just system is the one. Ronald Dworkin. Libertarian thinkers like Hayek and Friedman have recognised the difficulty of ensuring equality of individual circumstances. . In Rawlsian scheme of things the conception of justice ensures that the dispensation is designed in such a way that improves the least advantaged members of society. Harvard University Press. In fact Rawlsian justice is geared exclusively towards improving the lot of worst off members of society. For Marx. but at the same time they have argued for elimination of moral and political inequality.

19: 111-21. the later concept. i. life expectancy and reduce morbidity and infant mortality so as to enhance individuals capabilities has received froceful support in the writings of Amartya Sen. Philosophy and Public affairs.freedom and more capable of fulfilling their personal differences and enlargement of personal liberties. Amartya Sen emphasises this aspect in his advocacy of “Basic Capability Equality”. Through the discovery by each individual of his own and his neighbour’s endowment. Means versus Freedom. In fact the idea of distributive justice is not something new. This idea of equality under Indian Constitution.101[70] Under Indian Constitution. is further subdivided by him into Distributive justice and Corrective Justice. but in terms of the freedom they enjoy to choose between different ways of living that they can have reason to value” Public action to improve nutritional intake. Its central concern is to redress the bias of contingecies in the direction of equality. Justifications for affirmative action lies in the needs either to remove the grossly unjust inequalities in the system or to raise particular sections of the society to the level of human existence and assure them 101[70] Justice. He says that “individual claims are not to be assessed in terms of the resources or primary goods. thus. According to him justice is of two types-complete justice and particular justice. Either we call such policies as protective discrimination. Distributive Justice consists in proper allocation of reward to each person according to his worth and desert. emphasizes on the protective aspect of equality which has been the prime concern of most of the philosophers we have talked about above. from a prince to a pauper. . is aimed at achieving substantial equality by classifying the advantaged and disadvantaged and provide the disadvantaged ones with protective discrimination which has been specifically taken up in article 15 and 16. This discussion brings us to the idea of Distributive Justice. what is laid down in terms of equality is a twin concept. while the former ensures equal status to everybody. Aristotle himself talked about distributive justice.e. In a democratic world it is taken for granted that policies for the redress of severe social and economic disadvantages are in themselves desirable. on the conception of justice and equality. Whatever the differences of opinions amongst the philosophers of various hues. persons respectively hold. they would all suggest some or the other kind of distributive mechanism to shape the society in the mould of their philosophy. It thus looks beyond equality in purely formal sense. benign discrimination or preferential policies. they are the means for achieving the ideals of distributive justice. Particular justice. Such policies of distributive justice aim at different sectors of society and at the widest possible base. equality before law and equal protection of laws.

Vol XVII. Bar Council of India Review. i. New Delhi 1990. The fact that Constitution of India specifically provides for affirmative action programmes in an elaborate manner or that the Supreme Court of United States of America has held “Affirmative action Programmes” Constitutionally sanctioned. sex. that we now turn to in the next section..1 Merit Argument. in such matters as admission to institutions of higher education or appointment to the state services it will require that the candidates are selected on the basis of their individual merit. Leaving aside the general intricacies in the application of the principle.C. Affirmative Action Programmes : Jurisprudential Basis. etc.held for that purpose.102[71] They say that it also satisfies the justice precept of “treat like cases alike and diffferent cases differently” in so far as it provides a criterion of immediate relevance to the good to be distributed. Mishra. their ability in terms of achievement of certain grades or marks in an objective test-generally a test of intelligence plus knowledge.their due dignity. Here an attempt shall be be made to look into some of the more important questions and arguments and analyse their theoritical implications. 3. however there is no claim on our part that there are no other questions which have important theoritical implications. In fact the issue raises questions of great importance to the legal theory and philosophy and as such are required to be looked into a bit more fully and systematically. race. whether natural or acquired. caste. This principle assures the selection of the ablest persons from amongst a large number for the limited goods or 102[71] See V. It is these justifications for affirmative action. Though the attempt shall be to cover such questions or controversies rather exhaustively. Meritorian Principle dictates that social goods should be allotted on the basis of one’s merit on ability. has not put paid to the controversies dogging this issue. It has been seen in the introduction that the policies of compensatory discrimination raise a host of questions and arguments. Supporters of this principle claim that it assures best justice in so far as it allocates the rewards or goods on the basis of an objective criterion having nothing to do with such personal characteristic of an individual as his birth.e. 3. . colour.

in a society suffering from under population due to long term war or any other reason. enable another doctor to do a different medical job better. Harvard University Press.Singh.103[72] Thus the merit must vary according to the variations in the social objective. the thrust of his argument is that merit itself can be defined in such a way as to make way for particular kinds of persons in view of social demands and necessities. It also assures a strong society and its overall progress in so far as it provides incentive for hard work and the development of superior mental and physical capacities. then that black skin is by the same token “merit”as well. Dworkin. physical strength and not the grades in examinations may be the merit.opportunities available for distribution. What is merit after all ? Merit has no fixed or definite meaning free from variations. According to Prof. 1991. Production of more than one or two children may. but is controlled by them. or need for achievement or satisfaction. but for a police or defence job where predominantly physically strong men are needed.C.104[73] Prof . Reservation Crisis in India (Ed) V. values or needs and is bound to change with the changes in the latter. The notion of merit itself is subjective. Universal Book Traders. To whom 103[72] 104[73] M. or need. It is nothing but a criterion to achieve some pre-determined social objective or value or to satisfy certain perceived social need. Similarly. Dworkin does not say that merit is unimportant . It does not control the objective value. as a matter of regrettable fact. however. become a demerit in an overpopulated and underdeveloped society. If a black skin will.P.Mishra. Ronald Dworkin. One may take an example to illustrate the point in another manner. there is no combination of abilities and skills and traits that constitutes “merit” in the abstract. in “A Matter of Principle”. Suppose for example there are three boy claimants for one ticket of a cricket match show. It is indeed determined in terms of perceived social objectives. high grades or percentage of marks in educational examinations may be a merit for teaching assignment because the object is to have intellectually sound persons.1985. New Delhi. Bakke’s Case : Are Quotas Unfair. production of more children may be a merit and parent may be rewarded for producing more children because the society needs an increased growth of population. value. For example. . It appears to be a bit weighty argument but a closer examination reveals its weaknesses. this is because quick hands will enable him to serve the public better and for no other reason. if quick hands count as “merit” in the case of a prospective surgeon.

the boy with highest marks should get the ticket. First. A society may find that having met the ordinary common needs of the community. Secondly. goal. or the one who does not fall in either of these two categories but has demonstrated immense interest in cricket ? An answer to these questions would depend on what our ultimate objective are. as it needs the ones who can serve the day to day ordinary needs of the rural and tribal people and may accordingly decide that persons to these courses should not be admitted on the basis of intelligence alone. engineers or lawyers to meet the special needs. efficiency in public administration may be an end and to achieve that end standards that may ensure such efficiency may be set as merit. a society or the dominant group in a society may set such objectives or goals for which the members of that groups are most suitable and thus use the apparently objective looking criterion of merit to exclude other groups from the social good. Conversely. the ticket must go the third boy. since the merit is determined for serving the perceived social needs or values of the day. a society may find that it does not need as much intelligent and sophisticated doctors. it needs highly intelligent and sophisticated doctors. but also on the basis of their suitability to serve the rural and tribal people. if we want to encourage the effort and potential . On the face of it physical strength appears to be an objective criterion. or the one who has demonstrated exceptional potentiality to obtain better scores in future. For example. a warrior class or race in power may say that they need physically strong and well built men in all walks of public life and administration and accordingly all positions will be filled on the basis of physical strength or prowess. If we want to encourage talent and effort by rewarding it. satisfaction of such needs is the end and merit is simply a means to achieve that end.out of these the ticket should go on the basis of merit ? To one who has the highest score in the last examination. And if the society . but in fact it may result in constant and uniform exclusion of the under nourished and weak. Two general conclusions may be drawn from this discussion. since merit is dependent upon the value. particularly cricket. engineers or lawyers. And if we want to encourage sports. or the objective to be achieved. For example. To achieve that end it may decide that to these courses persons must be admitted solely on the basis of their intelligence measured through a pre-admission test or on the basis of marks or grades achieved in the previous school examination or both. the second boy must get the ticket.

for instance. Mishra’s Reservation Crisis in India. Thus the capacity to produce coarse but cheap cloth becomes a merit as against the capacity to produce high quality cloth. Suppose. Researches have established that intelligence is mainly determined by heredityspecifically that about 80 percent of variance in IQ scores is genetically determined. Eysenck says that “talent. One may quote a similar kind of an example. are largely innate factors. Thus while in the first case intelligence is the merit for becoming a doctor. Universal Book Traders. in the second rural or tribal poor background acquires priority over intelligence and becomes merit. In such a situation the enterpreneurs who can produce cheap cloth even if it is coarse should have priority.C. In addition to genetic factors. .These examples should leave no doubt that merit varies with the social needs. ability. over those who have highly sophisticated machinery and technical know-how to produce fine quality cloth beyond the common men’s reach. if a question of granting a textile industry license arises. talent is also conditioned by environmental factors and their interaction with genetic factors. It depends on a number of factors which one cannot influence in spite of one’s best efforts and lie beyond one’s control. 1991. it may decide that persons with rural or tribal or poor background only will be admitted to these courses or that preference will be given to them. A third point which requires to be noted about merit argument is that what we call merit or talent is not necessarily something which proves the superiority of one individual over another in terms of effort or dilligence. 105[74] Quoted in V. if the social environment is allowed to vary. but it wants that everyone must be clad even if the cloth is coarse. remarkable differences sometimes occur. engineer or lawyer. Prof. expectations and prospects. Finally IQ is also dependent upon motivation and motivation to a great extent depends upon social environment with shapes future hopes. a country is not interested in high class cloth. New Delhi. Even where heredity is the same as in identical twins. It changes with the context and is simply a means to achieve certain ends. and the remainder to environmental and their interaction with the genetic factors.finds that persons with urban or affluent background are not suitable for the job because of their unwillingness to serve the rural and tribal people as well as their attitude towards them. merit.105[74] This is clear from Jensen’s assertion that something between one half and three fourths of the average IQ difference between American Negroes and whites is attributable to genetic factors.

In both cases he is being excluded not by prejudice but because of a rational calculation about the socially most beneficial use of limited resources for medical education. he says “ It is true that blacks or jews do not choose to be blacks or jews. It is generally argued that affirmative action in favour of one group is discriminatory against others denied of the same benefits and that is itself denial of equality which is the right of every individual as an individual and not as a member of any group and therefore cannot be denied to him simply because he is labelled as a member of an advanced group etc. But it is also true that those who score low in aptitude or admissions tests do not choose their levels of intelligence. at least in the competition for any public benefit. that he would have been accepted if he had been more intelligent or made a better impression in his interview. Articulation of the Rights Argument poses some difficulties. or.2. Such arrangements is prima facie unjust in so far as it ensures perpetual advancement of the former and condemnation of the latter. 106[75] Bakke’s Case : Are quotas unfair. Rights Argument.As such if merit depends upon a number of factors beyond one’s control. 3. Every citizen has a constitutional right that he is not made to suffer disadvantages. religion. if he had been younger when he decided to become a doctor. If we cannot provide uniform conditions of living and development to all. Harvard University Press. And so he concludes that Allan Bakke is being sacrificed because of his race only in a very artificial sense because of his level of intelligence. and in exactly the same sense. By Ronald Dworkin. Prof. since he would have been accepted if he were more clever than he is. sex or colour for the purposes of classification of allocation of social goods ? We do not suggest that merit must outrightly be rejected as criterion of social justice. Dworkin blasts out the argument. 1985. he would have been accepted if he were the black. because the race or religion or sect or region or other natural or artificial group to which he is a member is the object of prejudice or contempt.”106[75] Certainly. in the case of other schools. because another individual is labelled as belonging to a backward group. in “A Matter of Principle”. we have no reason to prefer the advantaged over the disadvantaged. caste. But it is also true. . But those who argue that merit should be the sole and exclusive criterion should not forget to take into account the factors that constitute it. Commenting on Bakke’s claim that he was denied a seat in a medical school at Davis only because he was white and that he did not chose to be born as white. is it not as much suspect as a race.

members of that group are allowed to compete among themselves. Universal BookTraders. in the making of appointments to services and posts. i. 1991. a labour legislation safeguarding the interest of industrial workers does not take into account the non-industrial worker.(ii)Weighted individual equality or substantial individual equality and (iii)proportional group equality.e. For example. In practice. if one looks at the Constitution of India. With this view of Gregory Stanton . reservations of appointments or posts in favour of any backward class of citizens.Mishra’s Reservation Crisis in India.. particularly in the area of social welfare. one will find that the concept of group equality in so far as it speaks of special provisions for women and children and for any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. take into account groups and not the individual. we see that most legislations. arrangements by way of reservation of quota can be made to equalise the distribution of benefits between groups. And since within the group also there may be more claimants than the benefits to be distributed. if a group of people is shown to be under-represented or is systematically unable to compete on a formally equal basis with other groups for a job or educational opportunity or any other highly valued social good. and consideration of the claims of the members of scheduled castes and scheduled tribes. In view of these express provisions no one can assert that the right to equality is always an individual right. . Even in the absence of these provisions the concept of group equality should be acceptable to both as a matter of practice as well as of principle. proportional group equality means equality among groups. Here the principle of equality among equals applies not to individuals but to groups. The individual has been deprived of certain advantages because he belongs to a group and therefore for benefiting the individuals within that group some weightage has to be attached to the entire group. New Delhi. 107[76] While formal individual equality is a synonym of mathmatical equality in the sense that each man is to count for one irrespective of his characteristics and weighted equality contemplates weightage to be given to the individual handicaps. promotion of the educational and economic interest of the weaker sections of the people. The legislation proceeds on the assumption that the industrial workers as a class or group must be protected from the 107[76] As Quoted in V.Gregory Stanton takes the view that equality may have three but related concepts (I) Formal individual equality.C. though he may be more in need of such safeguards than the former.

March 1991. but in the meantime it can cause enormous harm to society and its institutions. Having freed themselves from the moral authority of their caste. On what grounds can individuals now claim distributive shares for themselves in the name of their caste after having repudiated their moral obligations to it ? He further argues that it is difficult to see how the idea that castes and communities have rights to proportionate shares in public employment can be made compatible with the working of a modern society committed to economic develoment and liberal democracy. for good or evil. The moral claims of castes over their individual members have weakened at all levels of society. but it does not do so any longer as a matter of right.oppression of a class of employers. Special provisions are similarly made on the ground of group characteristics or handicaps. In the traditional order . shattered for ever. . such individuals are now able to use it instrumentally for economic and political advantages. The persistent use of the language of rights in the public debate for and against reservations is bound to lead to an increase in the consciousness of caste. Similarly special treatment to veterans and their children in matters of job or admission to educational institutions is given as members of a group regardless of the disadvantage suffered by individuals. He argues that at a deeper level the caste system has changed fundamentally. Prof Andre Betielle. Samiksha Publications Bombay. or the village scavenger had a moral right to claim a share of the social product in the name of caste because each of them was bound by the moral authority of the caste of which he was a member. That moral authority has been. in an incisive article on “Distributive Justice and Institutional well being”108[77] articulates a critique of “group rights” argument. the industrialists. All parties to the debate say that they wish to dismantle the structure of caste.e.. and in that way to defeat the basic objective of affirmative action which is to reduce and not increase caste consciousness. and especially in the urban middle class where the battle over benign discrimination is being fought. the village priest or the village barber. It exists above all in the 108[77] Economic and Political Weekly. its legitimacy is a different thing altogether. The continued existence of caste is one thing. The attempt to invest the caste system with legitimacy by claiming that its constituent unites have rights and entitlements is bound to be defeated in the end. i. It will be safe to say that no caste today has the moral authority to enforce on its middle class members any of its traditional sanctions. It is true that caste continues to operate in many spheres of social life. But caste is not a material edifice that can be physically dismantled and destroyed.

they are deprived off an opportunity to overcome their disabilities caused due to exploitation and deprivations of hundreds of years.ty. The solution appears to be lying somewhere in between-.3. Where vast disparities either in Indian situations or in U. This leaves us in a peculiar situation. if the caste criterion is used for providing protective discrimination the caste divisions are enhanced and identity based on class or caste lines is underlined. For example. . Prof. M. “scheduled castes and tribes are descriptive of backwardness.. in Bar Council of India Review. 3. they are required to be redressed. Flexibility is the essence in the design and application of policies to redress disparities that have arisen because of many causes.the golden mean.Efficiency Argument. It is true that no classifications based on birth should ordinarily be supported by as the things today certain castes and backwardness are identical. New Delhi. How can we exorcise caste from public mind by deepening the sense in society that castes are entitled to their separate shares as a matter of right.Vol XVII.S. For thousands of years they have been treated as untouchables and denied the right of association with other members of the socie. The individual’s right to equality in this situation is given due recognition in so far as the members of the group can compete among themselves for the limited goods available for distribution or allocation. Further on the other hand if caste identities are overlooked in public employment and for admission in educational institutions of higher learning .consciousness of people-in their deep sense of divisions and separation on the one hand and of rank and inequality on the other.P. 1990.A. They have suffered all kinds of indignities and disabilities not as individuals but as membes of a group or caste and that entitles them to special treatment as members of a group without violence to the right of equality of the nonmembers. and nothing else. Singh109[78] attempts an explanation by saying that certain castes have been consistently excluded for thousands of years from the goods and opportunities which they would have certainly desired simply because they belonged to that caste. 109[78] Jurisprudential Basis of Reservations.

The entry of a less meritorious shall naturally affect the efficiency of the institutional system. but for the public at large and the society as a whole.M. are the vehicles which negotiate the arduous path of the community towards a better. universities. Even if we assume the paramountcy or primacy of efficiency.Shiva Rao. The Framing of Indian constitution. Bombay. Through that exercise we might find that for us integration and rectification of socially harmful deprivations and injustices are as. 1967.III N. consistently with the efficiency of administration in the making of appointments to services and posts in connection with the affairs of the union or the state. they also took care of the efficiency of public institutions and laid down a rider providing that the claims of members of the scheduled castes and scheduled tribes shall be taken into consideration. more systematic and healthy life. 110[79] See B. It was probably for this reason that when the framers of Indian Constitution provided for benign discrimination. If for the purpose of redressing grievances of the past. “Rome was not built in a day” . The social utility of public institutions has to be judged not just by the criterion of employment but a whole range of criteria among which employment cannot be the most important. hospitals. Indeed the institutions shape harness and channelise the collective energies of a people in their quest for a better tomorrow. their trials and travails and acquiring the shape useful for the social organism. Vol. pressing needs as efficiency. yet its importance has to be compared with and ultimately set against the significance of such other values as integration.110[79] It is therefore argued that the efficiency of public institutions is of paramount importance Though efficiency of public institutions is undoubtedly an important value insofar as it assures greater production and better services. Institutions of our socio economic life like. They are useful not just to the people to whom they provide employment. banks. And as it is said. . accumulating experiences of generations.It is implicit in the idea of benign discriminations that a less meritorious person is preferred to another who is more meritorious. we tend to undermine the efficiency of the public institutions. we would be doing unimaginable harm to the generations to come. That was the demonstrable perception of the constitution makers of the Indian reality and social needs which have not yet materially changed. posts and telegraph etc. the connection between the existing test for entry into the services and the efficiency of administration has not been empirically established. if not more. prevention of discrimination or eradication of stark social injustices. Institutions do not spring up all of a sudden.Tripathi. courts . they take generations and centuries in their evolution passing through ups and downs. laboratories.

.4.. if we envision a service state in which the millions are the consumers…. 47. Harvard or Standford or similar Indian Institutions are the major components of merit or suitability. Balkanisation Argument.In part the higher scores of others may reflect cultural disadvantages which are irrelevant to the business in hand.P. from the standards of the Indian people. Elitists.. It has been noted above that benign discrimination underlines class and caste differences and enhances the social divisions. that affirmative programmes are aimed to achieve a racially conscious society divided into racial and ethnic groups. By Marc Galanter.”113[82] The thrust of the whole argument is that the concept of efficiency should be related to our developmental needs and irrelevance or inadequacy of the existing test system to determine efficiency should be exposed. “The very orientation of our selection process is distroted and those like the candidates from the scheduled castes and scheduled tribes who. 113[82] Quoted by Prof M. 3. Nor is it clear that differences in the level of such talents are directly reflected in efficiency or inefficiency of administration… …. will speedily quicken the development needs of the country and a sincere dedication and intellectual integrity… . least suitable to run government and least meritorious to handle state business.111[80] “the translation of lower academic accomplishment into inefficiency in the administration is difficult to trace. each entitled as a group to some proportionate 111[80] 112[81] Law and Society in Modern India. in one sense.”112[81] In the words of Justice Krishna Aiyar of Indian Supreme Court. Sensitised heart and a vibrant head.According to Marc Galanter. from their birth. . more capability than those who have lived under affluent circumstances and are callous to the human lot of the sorrowing masses. have a traumatic understanding of agrestic India have.not degrees of Oxford or Cambridge. Oxford University Press. A similar kind of an argument has been made in United States of America.. tuned to the tears of the people. Ibid. whose sympathies with the masses have dried up are. which are already acute in Indian sociopolitical system. in part.n. It is not clear how well academic performance correlates with administrative talent. op cit f.Singh. in His Jurisprudential Basis of Reservations. 1989. the lower scores of beneficiaries may reflect a remediable lack of polish and experience rather than lack of native ability.

The extension of reservations first for the Scheduled Castes and scheduled tribes and then to Other Backward Classses. seeking to perpetuate the power of paternalistic Government. Prof Dworkin has sought to articulate the response to the Balkanisation argument in American context. whose moral and philosophical justifications leave little room for doubt. The communal virus which started with Ramsay Mc Donald award culminated in the partition of the subcontinent and generation of issues which remain unresolved to this day. boys and girls.(OBC) has already caused so much of heartburn and has led to ample amount of recriminations. Prof. Demands of Christians and Muslims for reservations. have started being made. divided into racial and ethnic sub nations. and the range and character of the lives that will be open to them. Bakke’s Case : Are quotas Unfair. All this leads to an acute kind of anxiety about the integrity of the country. Mass Harvard University Press. this is the inevitable and evident consequence of a history of slavery. They use strong measures to uplift the weaker and deprived or else they will fail. The tiny number of black doctors and other 114[83] Ronald Dworkin. The proponents of benign discriminations respond to this type of argument by terming it as a displaced argument trying to discredit the affirmative action programme. and no other feature of personality or allegiance or ambition will so thoroughly influence how they will be perceived and treated by others. Dworkin writes. careers or opportunities. They are black. which would rather dole out. . He dispels the fear that affirmative action programme are designed to produce balkanised America.others will characterise them. repression and prejudice. are not free to choose for themselves in what roles or as members of which social group.114[83] In India due to the history of partition and resulting massacre of around one million people. That turns the whole concept of benign discrimination into a political tool. 1985. but their ultimate goal is to lessen and not to increase the importance of race in American social and professional life. Even the history of the benign discrimination has not been a smooth one. though subdued at the moment.share of resources. which sustain and transcend the constitutional text and policy. “American society is currently a racially conscious society. Cambridge. the argument that benign discrimination tends to divide the people revives the history of tragedies of partition. reservations sops and divide the people than encourage people to stand on their own feet and compete in a world of excellence. in “A Matter of Principle”. Black men and women. And now the forwards too are demanding reservations. Their argument is that failure at the implementation front should not be the reason to discard the policy itself.

”115[84] According to Prof.n. varied and specific as they are. Unless all social groups are brought to an equal cultural plane. The expression economically backward or economic advancement has purposely not been used to avoid the inclusion of majority of rural 115[84] Ronald Dworkin. f. one link is a long and self fueling chain reaction. here in India. The policy is intended to help the historically disadvantaged groups to remedy the handicaps of prior discrimination impeding the access of classes of people to public administration. The second is calculation of a strategy: that increasing the number of blacks who are at work in the professions will . The first is a judgement of social theory: that the United States will continue to be pervaded by racial divisions mainly the prerogative of members of the white race. The Affirmative Action Programmes in the form of State advantages. in the long run reduce the sense of frustration and injustice and racial self consciousness in the black community to the point at which blacks may begin to think of themselves as individuals who can succeed like others through talent and initiative. However economic advancement naturally accompany the social and educational advancement. higher and lower social groups. whatever these consequences might be. the benign discrimination policies in America rests on two judgments. have been designed to end the serfdom of a whole section of the population in which it has fallen due to socio-religious and politico-economic reasons. The first step in this process is to bring the lower and backward social groups to the level of forward or higher social group. social intercourse amongst the groups will be an impossibility. in a society where there exists forward and backward. Employment and particularly the government employment promote social and economic advancement and provisions relating to protective discrimination precisely aim at achieving this goal. 52.professionals is both a consequence and a continuing cause of American racial consciousness. This argument perfectly fits in Indian situation as well. Affirmative action programmes use racially explicit creiteria because immediate goal is to increase the number of members of certain races in these professions. while others feel themselves systematically excluded from a professional and social elite. could be accepted with no sense of racial barriers and injustice. At that future point the consequences of nonracial admissions programmes. op cit. more elaborate. But their long term goal is to reduce the degree to which American society is overall a racially conscious society. . Dworkin. It must be noted in this context that article 15 (4) and 16 (4) specifically refer to social and educational advancement of disadvantaged groups.

the protective discrimination programme has been designed specifically to remedy social disadvantages by way of distribution of state advantages. It must. however. A constant endeavour has to be made that the theoretical justifications are matched by effective implementation. Under Indian Constitution. XXXXXXXXXXXX . be ensured that a fortunate few do not monopolize its benefits for ever.population which continues to groan under poverty conditions.

Initially the policy was introduced by the colonial administration to divide and rule the local people and perpetuate their authority. The ancient past has not certainly been a blameless one. so much so that even the Protective Discrimination system. Beginning with the Varna Vyavastha. constitutionalism and even modernisation could not not have much impact on it. live and organic and changes introduced from within or outside initiate a chain reaction in the socio-political life of a system and have cascading effect on the social scenario. Indian social system from the beginning of its inception has been witness to the changes of multiple dimensions. legal institutions. the Indian social system boiled down to caste structured system which has taken such deep roots that the education. political awareness. though the stated objective was to redress the inequality in public services. but his also does not justify Henry Maine’s dismissive remark that much of Ancient India’s wisdom consisted of ‘dotages of Brahmanical . however. Apparently a mechanism to maintain the balance of power amongst different sections of society. In the post independence period. This chapter is an attempt to trace the long journey of an ancient system to the present model of administering equality and justice. the set of policies of protective discrimination were adopted as a measure of social Engineering and for the upliftment of weaker and deprived sections of our society for the purpose of redressing the ills of the past and ushering in an egalitarian social order. The present set of policies too have more than 100 years history. economic development . when it was introduced under the Constitution of India had to be based on the discredited version of Caste System. It is due to this that we say that the roots of the present lie deeply buried in our past history. Times are not static. they change and so changes the life of a nation.CHAPTER . Social mores and ideals change from time to time in the backdrop of emerging social crises which create new problems and alter the complexion of the old ones. Socio-political order of any system in particular is dynamic.III Indian Panorama of Equality and Justice : Ancient and Modern.

1.superstitions’. the former are to be inferred from the later. Hindu constitutional writers have approached the problem of socio-political organisation from quite different point of view. it would be appropriate to understand the basics of it. which got distorted into a hierarchical caste structure. Mussorie. Similarly they discuss the duties of citizens from which we are to infer the extent of the control. elaborate. shall be taken up for the purpose of putting the things in perspective. The point is . complex and bewildering as it is . the burden of which is still carried by the deprived and exploited sections of the social system (III). and which ultimately became the base of the present protective discrimination programme under elaborate provisions of equality and justice under Indian Constitution(IV).S.Dhavan. India’s genius for accomodation can only be understood against the backdrop of this Dharmic order which holistically encompassed all of the society. on the contrary. . that the organising principles of Ancient India’s socio-political arena were not rights but the duties. it was comparatively a dynamic order unparalleled in the contemporary societies and since it still retains a lot of socio-political validity. the state could exercise over the citizen.116[85] This kind of an attitude towards ancient Indian traditions in law and justice represents the attempts made by the colonial administration to discredit the ideological foundations of Hindu hegemony of ideas. They usually describe not the rights of citizens but the duties of the state. realising the five kinds of debts he owes towards the system has to concentrate on his duties. Before we look at the ancient Indian paradigm of equality and justice. 1962. trying to understand the peculiar setting of Varna system and its rationale (II). bewildering as it may appear to a western mind. As such a few arguments. how and whether the inequalities were inherent in this system as has been made out to be ?Whether the system was inimical to individual liberty ? If yes what remedies were thought about the propounders of that system or they were simply insensitive about it ? If not how and why the deterioration set in reducing a whole section of population to thraldom and worthlessness and thus necessitating a programme of preferential treatment ? We will start by having a brief sketch of ancient India’s organising principles of socio-political governance (I). This social system was not certainly the rigidified hierarchical structure as it has been presented to be. without caring for the likely 116[85] S. Every individual being.S) as well. National academy of Administration. The present model. Context of Ancient India’s Socio-political governance. Indian Jurisprudence and the theory of State in ancient India. due to the structural complexities. It would be interesting to learn how the so called disadvantaged groups in Indian society willingly accepted their position as part of the Dharmic order of things . it would not be possible to cover the whole range of issues that form the part of the present discourse on Protective Discrimination. Printed Lectures. which have been debated in other politico-legal systems (especially U. we must understand the fact.

State as such for the Hindu system is not a necessary evil but a necessary benefactor. As such the ultimate goal of both the individual and the state.outcome. Richa Publishers. because it is only by actions without attachment that a man can attain the supreme”. so to say the Dharma of both entitities is “Yato Abhyudayh Nihshreyasah sa Dharmah”. complete. The conception of individual rights therefore could not be a major problem for political and jurisprudential thinking. . Individual on his part having the sense of obligation due to the five fold debt. Nandkishore Acharya.117[86] Another important point which is peculiar to a western mind and is required to be noted for a proper understanding of India’s jurisprudential tradition is that there is no essential conflict between individual and society or the state. State as such is indispensable for the progress and happiness of the individual. Such 117[86] 118[87] Shrimadbhagwadgeeta. The western tradition separates the civic and political life of the citizen from that of his moral and spiritual life and defines his rights as against the state which is assumed to be hostile to individual liberty.(Debts of the teachers and sages) Pitr Rin. Hindu tradition considers political duties of the citizens as part of his general duties (Dharma) and assumes that there is no primordial conflict between the state and citizen necessisating a clear cut definition of rights and obligations of both. something which ensures. The proponents of Hindu system had no presuppositions of the possibility of the suppression of the individual and therefore no pretentions were made to secure the rights of an individual. when we approach the conception of equality of citizens. They are Dev Rin.(Debt towards ones ancestors) Manusya Rin (Debt towards ones companions with whom one grows into a fully developed unit of the social system) and Bhut Rin (Debt towards the environment).e. Bikaner. the individual citizen is to be understood and defined from a holistic perspective and from the perspective of individuals goal in life. and the potential of the individual finds their fullest development is the duty of the state and as such the right of the individual . five kinds of debts. With this essential complementarity of the individual and the state under Hindu system. India.absolute and best of development is Dharma and therefore ensuring such an environment wherein the character. an individual owes to the social system. The purpose of the individual as well as that of the state is to take care of the personality of the individual and ensure its all round development . Dr. 2/47. “therefore perform your duty effeciently without attachement.(Debt of Gods) Rishi Rin. The Cultural Polity of Hindus. i. 119[88]he owed to the system as a whole could sacrifice himself for a bigger purpose.118[87] The very existence of the state is for the purpose of promoting all sided progress of the citizen. That’s how Geeta puts it.(1969) 119[88] According to Manusmriti (73/69).

the basic equality of the matter constituting the human body is recognised. the level of physical being.120[89] At this level human body is nothing but a vibrating pulsating mass of neurons. and devise the whole educational and cultural set up in such a way that the vicious propensities of the individual are curbed and the virtuous propensities are allowed and helped to flower fully. Vishnu Sharma) . Individual personality in the Hindu scheme of things is not considered to be unidimensional or unilinear.an individual whose personality character and potential are developed in a balanced manner shall in turn help in the evolution of the societal and state system and contribute his bit in the overall growth of a united entity. (Hitopadesh. At the other level. allowing every potential of every individual to develop. This is the level of consciousness. the character and the potential which an individual is born with. Aristotelian concept of applying equal laws amongst equals is no different from this. can never be the same for any two individuals . Psychological researches establish it that our mind is conditioned at a very early young age. It works on the basis of some established beliefs and set convictions. As such there is no difference between A and B. rather the system has to take care. At the physical level. call it state or society. i. What distinguishes the two are the means of experiencing the outer world. And the concept of equal protection of laws. having many layers of consciousness. India’s philosophic traditions aim at conditioning of human mind at an early age in such a way that man grows with a sense of gratitude and obligations towards all those forces which 120[89] Atmavat Sarvabhuteshu yah pashyati sah Panditah. No one individual is either a paragon of virtues or simply a bundle of evils. circumstances. State system has to recognise that no two individuals are similar in their natural propensities and therefore a uniform regimented system would not help every individual in achieving his fullest growth. This diversity of natural propensities is to be taken into consideration by the system providing for balanced development of any human individual . The system cannot simply think of providing similar educational facilities.e. On the contrary every individual person posseses a unique combination of virtues and vices. “ One who considers everybody (including the every creature of the living world) like his own self is the true knowledgeable person”. It is complex of various interacting factors. no two individuals are similar in any way whatsoever. Basic nature. under Indian Constitution speaks in the same vien.

legsilators. social and individual. which somehow impinges on the thought process of policy makers. 2. perpetuation and development of social system and contribute towards economic well being of the social organism are known as Vaishyas. It is for this reason that the complexion and texture of the philosophy of rights in Indian context is a bit different from that of the west and that has got to be understood for the proper understanding of India’s ancient jurisprudential thinking. This is called “Varna Dharma”. is known as Brahmin. judges and academicians. young age. 121[90]Looking at the social side of the individual. they either themselves or with the help of the labour perform their duties for re-inforcement . His ultimate ambition can be realised only in a well regulated social system wherein he has a definite place and a role to play. It represents the social side of Dharma and the individual side is represented by the Ashrama Vyavastha. Rajpal and Sons New Delhi. individual is not an absolute entity.nurture his elements and psychological personality. even today. Every individual has a certain definite place or status in the society and the duty he owes to the social system are based on this status. middle age and or old age etc. He is not allowed to develop the sense of conflict or dichotomy towards the system which he considers as complementary to his personhood rather than contradictory to it. S. which relates to various stages of individuals life. And those who find their fulfillment and expression in labour and services of others are known as 121[90] Dr. Eastern Religion and Western Thought.. Those who are efficient in economic planning and execution. Radhkrishnan. It is on the basis of his natural potential and his role in the social system that he becomes part or member of a particular group or community within the social system. One who is physically powerful and has leadership qualities. Varna System (the Classificatory Principle) It may be noted that the purpose of any legal system anywhere in the world and for that purpose of Dharma in particular in India has been to control and regulate human life without unduly intervening in his private life and natural liberties. capable of protecting the oppressed and the weak becomes the one who supports such measures and implements those policies with the help of sanctions he possesses and is known as Kshatriya. Some one who is intellectually very sound and is adapted in policy issues for social regulation. . There are two sides of this control or regulation. 1971.

V. but the principle on which this distribution was based in India was peculiar to this country…… A Brahmin was a Brahmin not by mere birth. who were later subjugated and given a position subservient to Aryas125[94].124[93] Prof. the Aryas and their opponents. Kane. 125[94] P. disposition. and he had to cultivate the princely temperament and acquire the strong and lofty Samurai training which alone fitted him for his duties. The first use of the term “Varna” is found in Rigvedic texts in which the mankind has been divided into two . and he had to cultivate the spiritual temperament and acquire the spiritual training which could alone qualify him for the task. men are of two kinds “Arya” i. This Varna System was originally an arrangement for the distribution of functions in society.Shudra. So it was with Vaishyas whose function was to amass wealth for the race and the Sudra who discharged the humbler duties of service without which the other Varnas could not perform their share of labour for the common good. division of labour arose and numerous arts and crafts developed and they were in the process of contributing to 122[91] 123[92] Rigvedadi Bhashya Bhumika. {1968} Vol – I Bhandarkar Research Institute Poona. just as much as class in Europe. 124[93] Ibid. Varnashrama Dharma Vishay. concludes that in the earliest times about which literary record exists. 1975.e. Chaukhamba Publishers Varanasi. Thus the word “Varna” implies the occupation chosen or selected by an individual in accordance with his nature. But later owing to cultural advance. genius and temperament122[91]. there were only two Varnas. but because he discharged the duty of protecting the country and preserving the high courage and manhood of the nation. The Kshatriya was kshatriya not merely because he was the son of warriors and princes. Rigveda. Purush Sukta. . Etymologically speaking the word Varna is derived from the original sanskrit word “Vri” which means and stands for chosing or selecting a thing. noble and “Anarya” the idiot or Shudra. P. There was no essential in-equality between a brahmin and a sudra since both of them were the necessary part of the single “Virata Purus” (cosmic spirit). “Vijanihyarnye cha dasyavoh”123[92] i. but because he discharged the duty of preserving the spiritual and intellectual elevation of the race. Dasyus or dasas. Kane.V. after carefully studying the ancient scriptures.e. History of Dharmashastras. This four-fold division of labour in Ancient India was known as Varna system contemplated for the wellbeing and evolution of socio-political system.

earth.e. However the fact is that this is figurative or rhetorical or symbolical representation that Brahmana has been born from the mouth or the head of the Brahma. arise when we take the words at their face value i. Manu talks about the same in the following manner. Kshatriya. the Lord has created four Varnas. Rigveda states that the King has been made out of eight elements i. Brahmin.e. the creator. The Eight elements said to be the 126[95] 127[96] Ibid. Evidently the king cannot be produced by eight elements. chandra. Indra. Yajurveda. Lokanam tu vivardhyartham mukhbahurupadtah Brahmanasya Kshatriyam vaishyam shudram cha nikhartayat i. The most prominent and known use of Varna is found in Yajurveda. The point worth noticing is that doubt about this theory of Brahmanas having taken birth from the mouth of the Brahma etc. wherein four types of Varnas have been accepted. 128[97] Manusmriti.the complexity of the system by creating numerous subcastes based upon occupations126[95]. yama. 1/87 . This may be illustrated by way of an example. when we do the literal interpretation of the text. fire sky and air. vayu. That means that four Varna system has been bestowed on the world by the Lord. surya.127[96] A rough and precise translation of the verse is that the Brahmin is born out of the mouth.e. the kshatriya from the arms. agni. simply because the temporal body of human beings have been constituted of five elements i. water.e. vaishya and Shudra for the upkeep and betterment of society corresponding to the four limbs of the Lord. the vaishya from the stomach and the shurdra is born from the feet of the Lord. kubera 128[97]etc. Brahmanasya mukhamaseet Bahu Rajanyah Kritah Uru tadasya yadvaishyah padabhyam shudro ajayat. varuna.

e. 1975 132[101] Ashtadhyayi.129[98] This implies that the Almighty God has created four varnas for the security. Further the etymological meaning of the different varnas explain the karma {duties} of a particular varna and it is by adopting the duties of a particular varna. The etymological explanation or the derivation of the word Brahmana is “ Brahmana Veden Parmeshwarasya upasanen cha sah Vartmano vidyadi uttamayuktah Purushah” 132[101] i.constituting elements of the king are the eight virtues which are expected to be found/inhered in a king and as such this implies the virtues of the king. Etymological meaning of the word Varna is given in Nirukta “Varno vrinoteh”130[99] meaning thereby that something which is chosen/selected by the person according to his karma is varna. order and prosperity of this earth.e. Gunkamani cha drishtwa yathayogyam vriyante ye te varnah. 4/2/59 . Manu too states the same thing. Sarvasyaasya tu sargasya guptyartham sa mahadyutih Bahurupajjaanam Prithakkarmapyakalpayat . one who devotes oneself in the studies and thought of the Vedas and the God. Manu too talks about four varnas in the varna vyavastha based on Vedas and the point to be noted in this context is that the system is based on Karma (deeds)and not birth. The term varna itself establishes that this system is based on karma and not birth.”131[100] i. and bears a good moral character is Brahmana. 129[98] 130[99] Ibid. the right given to an individual after observing his qualities and dispositions is the varna. 1/89 Nirukta 2/1/4 131[100] Rigvedadi Bhashya Bhumika. Chaukhamba Prakashan Varanasi. corresponding to the four limbs of the lord and the Karma of a particular varna shall be entitled for the same. Commenting on this Swami Dayananda Saraswati writes . “Varno vrinoteriti niruktapramanyad varniya varitumarhah. Swami Dayananda Saraswati.

Here the doubt may arise due to the use of the word “eeya” in the sense of an offspring. For example there are supposed to be no wife/offspring of surya. assures protection. Manu explains the duties/deeds of the Kshatriya Prajanam Rakshanam Danamijyadhymeva cha Vishayeshva prasavittashcha kshatrisya samasatah. 1/88 For similar views see Etareya Brahmana 8/2 135[104] Manusmriti.. one who protects public from violence. 2/1/19 137[106] Vasudha Smriti. gives alms to worthy people. varuna etc.e.e.133[102] The word Kshatriya is deived from the original word kshat and has been explained etymologically in Nirukta “ Kshadati Rakshti Janan kshatrah” 134[103]i. is kshatriya. In this connection Manu states 133[102] 134[103] Manusmriti. .135[104] i. 13/1/53 136[105] Ashtadhyayi. the public at large. one who engages in different types of business relations and is different in different pragmatic relations is vaishya. whether Manu treats birth as the determiner of the varna of an individual? An approved answer to the doubt is that the relation of an offspring is established not only by birth but by transfer of knowledge or virtues too. to do and getting done the yagnas. one who devotes oneself for the thorough studies of Vedas. invasion or loss etc. and to give and takes alms/donations are the six duties/deeds of the Brahmana. noble and humble is the kshatriya in the real sense of the term. for similar views see Tandya Brahman. 136[105] The term Vaishya too is indicative of the varna system based on merit and deeds and not by birth. the wife of the sun is called Suryaa and so on. performs agnihotra yagnas.According to him to study and teach Vedas.e. not allured by worldly vices and has control over himself. is benign. Yo yatra tatra vyavaharvidyasu pravishati shah vaishyah vidyakushalah jano va” 137[106]i. but still due to the relation of cause and effect and the transfer of knowledge the son of Aditi is called Aditya.

140[109] Unadi Sutra Path. But in fact there is nothing in the varna system that may warrant this assumption. his dynasty will never suffer from penury and birth of an idiot offspring. Swami Dayananda Saraswati.Pashunam Rakshanam Danamijyadhayayanmev cha Vanikpatham kusidam cha vaishyasya Krishimeva cha 138[107]. shudra too is indicative of a varna system based on merit and deeds. and vaishya. performing yagnas like agnihotra etc.e. The less interest he takes the more he progresses in terms of money. studies of Vedas and other scriptures. the protection and betterment of animals like cow. one who is devoid of knowledge and cannot be taught by teaching process but is efficient in terms of physical robustness. 3/2/39 142[111] Manusmriti. doing all kinds of business. “Shudrah shochniyah shodhyam sthitimapanno va sevayam sadhur avidyagun sahito manushya va”140[109] i. Shudra is that person who can never obtain the position of uprightness due to his ignorance and the one who is looked after by a swamin i.e.139[108] Like Brahmin.142[111] i.e. kshatriya and vaishyas without any ill will.not accepting even a penny on receipt of double the original money. Chaukhamba Prakashan. 2/19 141[110] Taitriya Brahmana.e..25 percent and not less than 0. Manu has used the word 138[107] 139[108] Manusmriti 1/90 Satyartha Prakash. i.e. Further “Ashato va Esha Sambhuto yat Shudrah”141[110] i. investing money for progress of knowledge.25 percent . not taking interest more than 1. one who suffers lowliness due to his ignorance and idiocy and the one who can only serve his master is called shudra. 1968. Varanasi. kshatriya. This may create a sense of inferiority and worthlessness of an individual who is shudra. the Lord has instructed him to serve the three upper varnas of Brahmin. Writing on the social status of a shudra Manu writes Ekmeva tu shudrasya prabhuh karma samadishat Etevameva varnanam shushrushamanayuya . 1/91 . the owner.

The best illustration/argument to support this proposition is that Manu had discussed at large the duties of various varnas. inferior or worthless. For instance Valmiki and Vyas.Rama Jois. who are regarded as the greatest poets and writers and philosophers of the country and who are held in the highest esteem down to this day by all sections of society. would you impart me endless wealth. my father is a physician and my mother grinds corn with stones”. the shudra is also called by the synonym Ekjanmah. (1984) Legal and Constitutional History of India.3 145[114] Rigveda III. Had he treated varna to have been determined by birth. IX. the authors of two great epics. It is worth noting that castes were not hereditary.” 145[114]This shows that the same man could be a sage. one who is one time born. depending upon his desire and activities. Rigveda. vol.e.Shuchi while explaining the duties of shudras. the duties of various varnas specified and other provisions of Manusmriti amply demonstrate that Manu treats the merit and demerits of an individual 143[112] 144[113] M. “Oh Indra! Fond of soma. He is treated as shudra since he is not twice born by knowledge. or would you make me a king. The account of acts prohibited by law. would you make me the protector of the people.Justice Rama Jois explains “ the Superiority or inferiority of an individual by birth in any one of these classes appear to have not been in existence. and this demonstrated by a verse in Rigveda where a poet exclaims “ I am a reciter of hymns. or a nobleman or a kind. The most authentic description of varna system and the duties of different varnas is supposed to have been given in Mansumriti. I N. The provisions of Manusmriti make it clear that varna system used to structure/design social system according to ones deeds and not by ones birth as such.5 . the Ramayana and Mahabharata. there was no question of discussing the merits and demerits or duties and rights of various varnas since the same had been determined by their birth only and the deeds of an individual would not have affected his place/status in the social system. 112. If an individual born in a Brahmin family does something which does not suit his place/status in he society and is still held to be a Brahmin.144[113] In another verse in Rigveda a poet asks the God Indra. belonged to the fourth and second Varna respectively”143[112] Further it must be noted that shudra is not by birth but one who cannot become Dwija or twice born by studies of Vedas is shudra or Ekjanma i.Tripathi Bombay.M. 44. the same undesirable deed would not affect his station in life at a later stage. would you make me a sage that has drunk soma. And this is also self evident that a person who serves others can never be treated as lowly. which stands for purity of mind and body.

but 146[115] 147[116] Manusmriti.146[115] The above sloka implies that a Brahmin. “Janmana jayate Sudrah” i. may turn into a shudra and shudra into Brahmin. On the contrary if his deeds are like that of a Brahmin or kshatriya he gains the varna suiting to his karma. Shudro Brahmanatameti Brahmanshchaiti Shudratam Kshatriyajjatmevam tuVidyadvaishyattathaiva cha .e.according to his deeds and not by birth alone. 10/65 Manusmriti 10/66 . Similarly an individual born in a shudra family remains a shudra only if his deeds are those of a debauched person. If the merit of an individual is accepted by birth alone the entire Karma system of Manu will collapse. otherwise he lapses into shudrahood. The question may arise why an entire family should lapse into shudrahood for the deeds of a single person in the family ? The reason is that one who does not study Vedas gradually looses his erudite and lapses into shudrahood and once the head of the family is shudra how can he teach/transfer the erudite to his dependants and therefore they too lapse into shudrahood. ever body is a sudra by birth and his merit or station in life is determined by his acts and deeds. He treats every individual a shudra by birth. According to Manu one who does not follow his duties turns into a shudra.147[116] Roughly the above sloka implies that a Brahmin who instead of studying Vedas invests his energies in the study of other things attains the shudrahood alive alongwith his family. deeds and disposition. The Manusmriti is suffused with various examples of it. A person born in a Brahmin family may remain a Brahmin only if his deeds are like those of a Brahmin. Not only this. depending on ones deeds and actions. He writes Yondheetya dwijo vedamanyatra kurute shramam Sa jeevannev shudratwamashu gachhati sanwayah . The point to be noted in this connection is that the word veda here has been used as a synonym of knowledge .

if is soft spoken and devoid of pride may attain Brahminhood or the Dwijanma i. A noticeable point in this connection is that the word Brahmin here. (an outcaste who takes care of the burning of died bodies) taught Shankaracharya 150[119]for a Brahmin was revealed in the body of the Pariah and in the Chandala there was the utter presence of the Lord Shiva. The terminology of Manusmriti is such that the symbolical words are to be interpreted in their right context and meanings given accordingly.e. a shudra of pious body and character serving the higher castes. born in 8th century. There comes a story in Mahabharata. who was proud of his caste purity. who is not knowledgeable.e. The way a Brahmin looses his Brahminhood by not doing the deeds suiting to his Varna. The chandala. has not been used for the person born in a brahmin family but for the one who attains Brahminhood by his deeds and dispositions.one who keeps company of shudra i.e. Shuchirutkrishta shushruvurmtaduvaganah kritah Brahmanadyashrayo Nityamutkrishtam jatimashnute149[118] i.It was because of this that Chokha Mela. 151[120] One of the two all time great Epics of India. the maratha pariah. based on a story of Mahabharat War supposed to have been fought more than five thousands years back.148[117] i.e. One who acts contrary to it lapses into shudrahood. . Manu writes Uttamanuttamangamangachhanheenanheenasch varjayan Brahmanah Shreshthatameti Pratyavayen Shudratam. twice born Varna . keeps on attaining merit after merit. became the revered teacher of a Brahmin. a Brahmin by keeping in touch with meritorious and knowledgeable people and by leaving the company of shudras and debauched. too becomes shudra. was one of the greatest religious teachers of India who revived the Vedic Studies and established that Indian Culture is Vedic Culture and that an essential unity exists in the Indian masses from north to south and East to West. 151[120]that an established Brahmin 148[117] 149[118] Manusmriti 4/45 Manusmriti 9/335 150[119] Shankaracharya. similarly a person born in a shudra family may attain Brahminhood by doing the suitable deeds.

No democratic system would accept that all individuals in the state system should be alike. political and economic power rules out any kind of misuse of power of any organ of the state system. Fourthly. was based purely on ones deeds and was designed for the maintenance of law and order and progress of the system. What does equality under a democratic system implies is that every part of the system has a right to make his contribution and shall get an opportunity of doing so .named Kaushik gets an elaborate lecture from a butcher. Van parva. The true individualism lies in the willing acceptance of the social responsibilities tempered with propriety and honesty. The people were divided into four Varnas but the Varna system was designed for the peace and progress of the people at large. (Atmavat Sarvabhuteshu……. Dr. III/75-84. different parts of which have to perform different functions. therefore you are no better than a Sudra”. State is some kind of a machine. it also establishes a system of responsibility and accountability. an organic system. it must be understood that social justice is not a system of rights but a system of equal opportunities. . The people were equal by birth and there were available ample opportunities of social mobility horizontal as well as vertical. and are enmeshed in human vices. Individualism is not fulfilled by running away from the limitations of responsibilities and accountability. Thirdly this system also recognises that all functions have social utility but economically speaking no particular function has any priority. because system believed in perfect equality at the spiritual level. Radhakrishnan. The rigidity of the later period jati system was not at all existing and everybody was free to raise or lower his station in life by his action and deeds. Firstly.. 152[121] Mahabharat.) The system was based on the belief that everybody is the expression of the Supreme Lord and has a natural and fundamental right to develop his person to the fullest extent. Secondly. Last but not the least individual liberty under a democratic system also implies the regulation of liberties. Under this system a proper balance of spiritual. It is commonly believed and alleged many times that the caste system has really hampered the growth of a democratic system. “ You appear to have attained the Brahminhood only in this birth for you are so full of pride.152[121] The above brief exposition of the provisions of Manusmriti and other scriptures makes it clear that the varna system of the ancient period far from being birth based rigid system. however considers the Varna System as perfectly democratic system.

now started taking the shape wherein the birth was important in determining the status of an individual. however the mental horizon of the people had started narrowing down. The willingness to change ones varna had started weakening. The varna system which was deed based hitherto. Shudras were placed at the lower station in social system but were not looked down upon. rather the responsibility of looking after the welfare of the shudras shared by the three Dwija Communities. Brahmins were at the apex of social system due to their established status in society. The systemic flux gave rise to Budhism and Jainism who attacked Brahminism by emphasising upon the equality of birth and deed based varna system. 3. potential and propensity and has to achieve their fulfilment. Now the offsprings of Brahmins were started being identified with the specific tasks of Brahminhood and offsprings of kshatriya for the tasks for kshatriyahood. Though the mobility amongst different varnas was still possible in theory. everybody has to work according to his choice. the rot started setting in. now they fortified their position by interpreting the Vedas in their favour. During the later years of vedic times and post vedic period the varna system started loosing its shine and there started appearing cracks in the system. however. Deterioration of Varna System into Rigid Caste System.Under this fourfold division. the instances of change from one to another varna had started becoming rare. The offsprings of different varnas started inheriting the membership of the particular varna. With the changing times. according to the choice of the buyer. the cosmic spirit and what should he do should be determined according to his inborn qualities. There was no prohibition of varna marriages amongst three Dwija varnas. Since kshatriya gave protection to these Dharmas the status of kshatriyas in the social ladder recorded an improvement. There certainly was no system of untouchability. Though the varna system during this period too remained deed based and there still was a bit of mobility amongst castes wherein changing ones varna was still possible. Human individual is in fact the manifestation of the supreme. A human individual is niether a single cell like creature nor a machine which can be bought and deployed for performing a particular task. .

153[122]The duties of different castes and subcastes had become determined and at this stage of social development appeared untouchability. But now these were subdivided into various subcastes. State administration has turned into inherited monarchies. Brahmin. But the essence of it had now been lost. Brahmin made full use of their status and interpreted Vedas and shastras in their own way distorting the right meanings of the terms. the marriage of a high caste male with the low caste female was permissible. kshatriya. but for the offspring of such marriages there was a different caste system. i. The weak and ignorant kings came to occupy the throne and head the 153[122] M. as a result of which the king started becoming lusturous. entering into temples and places of worships to offer their pujas etc. Due to these interpretations the position of Brahmins in society had become fortified but then status of shudras and women had been lowered considerably. Like marriages. indulgent. Anuloma marriage were permitted. the Brahmins once again raised their positions. Upnayan {wearing of sacred thread} was now completely prohibited for shudras.When the Budhism and Jainism too started showing the signs of decline. Rigidity in marital relations and turning of varna system into caste system was followed by formation of clusters of jatis{castes} and upjatis {sub-castes}. shudra. And since Brahmins were being protected by the administration they once again came to dominate the scene. They were now banned from. There were mainly four Varnas initially. This resulted into a kind of molopoly over vedic studies in the hands of Brahmins who interpreted Vedas and shastras according to their whims and to serve their vested interests. Administration and reins of power were now completely in the hands of kshatriyas.Sriniwas: Caste in Modern India. The predominance of rituals prohibited intercaste marriages. Intercaste marriages were prohibited altogether and marrying in ones own community was made essential.N. The social status of shudras had recorded a steep downfall. vaishya. strict do’s and donts were prescribed in food relations too. Kshatriyas {Rajputs} accepted this version of social system simply because it did fit in the protection of their immediate interest of continuance of their tutelage.e. Though anuloma. Study of Vedas too was banned for shudras. The word Varna had now become a dead letter and the varna system was now replaced by the caste system which was of a different genre altogether. Asia Publishing House Bombay. weak and tyrants. indignant. i. 1962 . The Manusmriti had established an ideal system of rules for the regulations of social behaviours. Religious rites had now become ritually dominated. Occupational structure of the social system now had become completely based on inheritance. The interpreters like kulluk Bhatt wrongly interpreted the Vedas and Dharmashastras to serve their vested interests. their offspring were looked down upon and were treated as crossbreeds and hybrids.e.

156[125] Eastern Religion and Western Thought. {1984} Legal and Constitutional History of India. When such people and races started settling down permanently. Sarvapalli Radhakrishnan. French.Tripathi. Once this system got established. Bombay. hereditary avocations and other considerations raised its head and the pernicious practice of untouchability with all its degrading inlications came into existence”. They were no reformers or charityists. India came under Muslim rule around 12th century A. Mongols. New Delhi. Vol-I . N.154[123] The opportunists and weak-kneed elements filled in the layers of administration which ultimately resulted in the weakening of state system which enabled foreign rulers to invade loot and occupy the country at various points in history. it became rather an imperative to maintain the sanctity of the descent by education or tradition. for more than 600 years until the Britishers took over the power at the end of 18 th century.P. it was then. Afghanis. (1971) .156[125] some of the early invaders like Huns were very cruel and uncivilised and caused a lot of bloodshed in the process of their invasions. M. Turks.Ramajois. The evil of discrimination as high and low among men on the basis of birth. Who should belong to which varna.administration. As such the economic exploitation of the country continued 154[123] 155[124] L. Ancient History of India.M. Portuguese. With the decline of Mughals there started European incursions. Persians. According to Dr. Arabs. and a situation developed wherein the locals were compelled to stay with them. It was in such a situation that birth started being considered the basis of classifying different Varnas.155[124] The week-kneed executive and resulting chaotic administration attracted the marauding invaders of medieval times and with the onslaught of invasions starting in 327 B. They were hard core businessmen and wanted to exploit the resources of this land for their own gain. another curse for the already fractured socio-economic and politico-cultural Indian system. Rajpal And Sons. that marriage and social interaction were restricted and that resulted into coming up of caste system. This affected the socio-economic and politico-cultural system in far reaching manner. and British . India faced foreign armies. 1978.D. In the course of time Britishers came to predominate the Indian scene. including the huns. was very difficult to determine taking into consideration the psychological propensities of different people. According to Justice Ramajois “In the meandering course of our history the society got divided into innumerable castes and subcastes. Calcutta.Sharma.C.

but was later day accretion due to may internal and external reasons. This was evidently the intent of India’s protective discrimination programme. This necessitated a programme for the reconstruction and transformation of a medieval hierarchical society emphasising inequality.and the empoverishment of Indian subcontinent coincided with the industrial revolution of Europe . 157[126] Verinder Grover. . Political Thinkers of India. it gave rise to gradation and put a premium on snobbery. New Delhi. 1998. into a modern egalitarian society based on individual achievement and equal opportunities for all regardless one’s caste race. Post-Independence India : A New Beginning. Since the Britishers had only economic interests here.157[126] Before we move on to next section. He was basically a social reformer and the Shuddhi movement started by him was intended for removing social evils from Hindu society. it should be taken note of that the rigidity and inflexibility which has come to mark India’s caste system characterised by inequality and hierarchical nature. In the course of time it gradually hardened into a rigid framework based upon heredity. Jyotiba Phule by establishing Prarthana Samaj worked for the social upliftment of the deprived and underprivilieged sections of society. There were attempts from within Hindu society to reform and rehabilitate the system. Thus came into being social hierarchy and stratification resulting in perpetration of injustices by the so called on the lower castes. or religion. It also created an undesirable crack in Hindu Muslim relations. Inevitably. He attacked idolatory. He took up the cause of women and raised the voice against the discriminatory and unjust treatment meted out to them and also favoured widow remarriages. Deep & Deep Publications. was not inherent in the traditional social pattern. Raja Ram-mohan Roy saw a close link between social and political progress and he perceived improvement in social conditions as essential for improvement in political conditions of the country. with the Britain working as the engine of growth in European subcontinent. no attempt was made to reform the socio-cultural system of the country and the already existing social evils were used by Britishers to perpetuate their exploitation. 4. Secondly he tried to get the barbarous practice of Sati abolished. and through his scholarly research established that idolatry was not sanctioned by Vedas and Upnishads. Swami Dayananda Saraswati in the late 19th century attempted to reform the system from within by removing social evils and invigorating the system.

such as reservations in legislatures. However there have been controversies galore on a number of issues who really deserve this help and how long ? What kind of a help it should be and what is the efficacy and propriety of this help ? Reservation in jobs and government services and in educational institutions has been the focus of these controversies. Thus independent India came to embrace equality as a cardinal value against the background of elaborate. . New Delhi. Lok Sabha is the lower chamber. valued and clearly perceived inequalities158[127]. Ibid. the lower house of Indian Parliament). P. including the reservations for Scheduled castes and scheduled tribes in Lok Sabha ( House of the People. scholarships.160[129] reservations in government services and reservations in educational institutions.159[128] These array of protective discrimination programmes can roughly be divided into three broad categories.185. would voice the disagreement with the proposition that the disadvantaged sections of the population deserve and need special help. grants loans and health care etc. there is no public defence for the caste system. consisting of 544 members elected directly for five years. everyone is against untouchability. First are Reservations which allot or facilitate access to valued positions or resources. Rajya Sabha is the upper chamber of the Parliament having 250 members elected indirectly for 6 years. Oxford University Press. 160[129] Indian Parliament is a Bicameral Legislature. housing and other scarce resources like.Proud of India’s rich and varied heritage. These protective discrimination policies are authorised by constitutional provisions. the founding fathers of Indian Constitution were aware of the entrenched and cumulative nature of group inequalities and therefore constitutional policies were designed to offset these entrenched discriminatory practices. Law and Society in Modern India. In fact the measures for ensuring equal protection of laws involve the element of protection as well as that of compensation or reparation to offset the systematic and cumulative deprivations suffered by lower castes in the past. that permit departures from norms of equality. evenhandedness and indifference to ascriptive characteristics. The result has been an array of programmes that are termed here as policy of Protective or compensatory Discrimination. 1990. We take these three 158[127] 159[128] Marc Gallanter. Interestingly few in independent India. Third type of protective measures are specific kinds of action plans for removal of untouchability. Second type of protective measures are employed though less frequently in land allotment. such as merit. prohibition of forced labour etc. but pained at the prevailing social evils of caste system etc.

The tribal people have remained backward because of the fact that they live in inaccessible forests and hilly regions and have thus been cut off from the main currents of national life. The main problem concerning these people is that their socio-economic conditions be improved at such a pace and in such a way as not to disturbe suddenly their social organisation and way of living. Eastern Book Company Lucknow. Mizoram and Arunachal Pradesh are excluded from the operation of article 332. Once again the state of Meghalaya. are those backward sections of Indian population who still observe their tribal ways. Wadhwa and Co Nagpur. V. Earlier section 2 of 23rd amendement of the constitution 1969. but the exclusion has now been extended in respect of the state of Meghalaya. Indian Constitutional law. The need is to evolve ways and means to gradually adjust the tribal population to changed conditions and integrate them slowly in general life of the country without undue and hasty disruption of their way of living. their own peculiar customs and cultural norms. The constitution of India treats the scheduled castes and scheduled tribes in India with special favour and affords them with some valuable safeguards. Mizoram and Arunachal Pradesh by 31rst amendment Act as these states are predominantly tribal in nature. Nagaland. 162[131] Similarly under article 332.Jain. The scheduled castes are depressed sections of the Hindus who have suffered for long under social handicaps and thus need special protection and help for the amelioration of their social economic and political conditions. seats are reserved in the legislative assemblies of the states in favour of scheduled castes and scheduled tribes in proportion of their population in that particular state.N.types of reservations one by one in this section and try to present the pros and cons of these protective measures.161[130] These scheduled tribes people too need special provisions for safeguarding their interests. excluded the operation of article 330 to the tribal areas of Nagaland . For the purpose of providing protection in terms of political representation. 1990. 1997.P. Constitutional law of India.1.Shukla. simply because of the predominant tribal 161[130] 162[131] M. 4. Scheduled tribes also known as ab-origines. article 330 of Indian Constitution provides that seats in proportions to the population of scheduled castes and scheduled tribes in particular states are reserved in the Lok Sabha. . The states which are predominantly tribal are excluded from the operation of article 330. Reservation in Legislative Bodies.

1997.Jain. Indian Constitutional law. .V. The number of Lok Sabha seats reserved in a state of Union territory for such castes and tribes is to bear as nearly as possible the same proportion to the total number of seats allotted to that state or Union Territory in 163[132] 164[133] V. But this duration has been extended continuously since then by 10 years each time. 1990.1. 163 [132] The claim of eligibility for reserved seats does not exclude the claim for the general seat. Elections to the reserved seats are held on the basis of single electoral roll and each voter in the reserved constituency is entitled to vote. As such if the members of said categories are able to secure additional seats there shall not be any repugnancy to these provisions at all. Freedom Struggle.Giri v. Nagpur. 166[135] It is felt that the handicaps and disabilities under which these people live have not yet been removed and that they need this reservation for some time more so that their condition may be ameliorated and they may catch up with the rest of the nation. This particular provision was given concrete shape in the Government of India Act of 1935. Wadhwa and Company Pub. See Bipan Chandra. New Delhi. 79th Constitutional Amendment Act 1999. It is for the scheduled castes and scheduled tribes alone to elect their representatives164[133].population in those states. Suri Dora. 165[134] This has a long history. It is an additional claim obtainable by way of merit and work.25. There is no separate electorate.165[134] It may be noted that initially these reservations were provided for only 10 years from the commencement of the Constitution under article 334. for separate electorate in 1932 resulting into Poona Pact. D.2000. This method has been adopted with a view to discourage the differentiation of the scheduled castes or scheduled tribes from other people and to gradually integrate them in the mainstream of national life. Thus to elect a person belonging to such castes and tribes to a reserved seat. Oxford University Press. all the voters in the constituency have a right to vote. brought into force wef. M. under which it was agreed to have joint electorate but reservations in legislative bodies. 166[135] This has been effected vide. Mahatma Gandhi has undergone a long fast to protest against the Ramsay Mc Donald award. Article 331 and 333 does the same in favour of members of Anglo-Indian Community. AIR 1959 SC 1318.P. It is obvious that reservations of seats in Lok Sabha and legislative assemblies of the States in favour of scheduled castes and scheduled tribes is for the purpose of ensuring presence of minimum number of representatives of scheduled castes and scheduled tribes in the legislative bodies. Now the period of reservations in Lok Sabha and State legislative assemblies stands for 60 years from the commencement of the constitution.

. 167[136] The fact that reservation of seats for scheduled castes and scheduled tribes in the legislatures is not on a permanent basis. Resevation in Jobs (Government Services) 167[136] Article 330 and 332 of Indian Constitution. Their condition would improve so much that they would feel their interests secure without any kind of reservations.the Lok Sabha as the population of the scheduled castes and scheduled tribes in the concerned state or Union Territory bears to the total population of the state or the union territory.2. but is at present provided for 10 years period at a time. 4. shows that it is envisaged that the scheduled castes and scheduled tribes would ultimately assimilate themselves fully in the political and national life of the country so much so that there would be no need for any special safeguards for them and there would be no need to draw a distinction between one citizen and another.

place of birth. 170[139] Dr. class . race and caste. 1985 . descent. article 16 (2) provides that no citizen shall on grounds only of religion. In order to give effect to general right to equality under article 14. In the specific application of this equality guarantee. Reservation and Discrimination in India. the State is further forbidden to discriminate against any citizen on grounds of place of birth. also see the Protection of Civil Rights Act 1957. Deep and Deep Publications New Delhi.169[138] The constitution after guaranteeing the general right of equality under article 14 defines equality in terms of justice by non discrimination provisions contained in article 15 (1) and 16 (1) and proceeds to incorporate provisions of preferential treatment so as to permit the State to achieve equality to disadvantaged sections by giving them preferential treatment in all its dealings and particularly in the area of public employment. that nothing in this article shall prevent the state from making any provision for 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. language and sex. Equality. Therefore on the one hand. and 15 (2) of Indian Constitution. And article 16 (4) which provides for protective measure of reservations of seats in government employment lays down. descent. Article 17 of the Indian Constitution. race . residence. religion.Resevation in government services as a measure of protective discrimination has been incorporated under article 16 (4) of the Indian Constitution. but is definitive of equality in relation to backward group 170[139]. sex. the constitution secures to all citizens a freedom from discrimination on grounds of religion. race etc. because any real classification will have to take into account the inequalities based on abuse of caste. so that the old inequitous 168[137] 169[138] Article 15 (1). caste. the constitution forbids discrimination on grounds of race. be ineligible for or discriminated against in respect of any employment or office under the State. Parmanand Singh. caste or religion etc. While article 16 (1) guarantee equality of opportunity for all citizens in matters of employment or appointment to any office under the State. criteria. It may be noted that this particular provision of protective discrimination is not intended to negative or derogatory of the guarantee of equality of article 14 or 15 (1) or 16 (1) and 16 (2). residence or any of them.168[137] Untouchability has been abolished and the citizens are protected against discrimination even on the part of the private persons and institutions. This particular provision falls under the head of “ Right to Equality”. Thus article 16 (4) should be taken as a clarification that while making classification for favoured treatment to backward classes the State might use the forbidden criteria.

In fact Dr. however a cursory glance at the constituent Assembly debates proves that article 16 (4) was incorporated by way of an abundant caution175[144]. This view stands supported by the cases decided by the Supreme Court according to which the state is authorised to use caste as an index of social and educational backwardness for making preferences. It is merely an enabling provision and confers a discretionary power on the state to reserve appointments in favour of certain classes of citizens. AIR 1963 SC 649. 171[140] 172[141] M.Balaji. Vol-III. place of habitation etc. Probably the framers did not want to leave this positive notion of equality as an aspect of justice to the vicissitudes of judicial attitudes which had been thick with formal equality.Rly v.R. SC 649.Balaji v. disparity. 173[142] Ibid.172[141] Thus selection posts can also be reserved for backward classes. cannot be the sole or dominant test. disadvantage or discrimination arising out of existing law.situation may not be continued. Making of India’s Constitution. State of Mysore. v.171[140] It is noteworthy that under article 16 (4) reservation in government service can be made not only at the initial stage of recruitment.Shiva Rao. . Now the point is that classification is possible even under article 14 itself which inter alia provides for equal protection of laws. 174[143] M.R. subject to the rider that caste. AIR 1963. General Manager S. of course. Adequacy of representation of backward classes in any service has to be judged by reference to numerical as well as qualitative tests 173[142]. 174[143] An important point about article 16 (4) is that. on the other hand it permits these very criteria for correcting evil consequences flowing from their past misuse. 1962 SC 36. The expression adequately represented in article 16 (4) imports considerations of size as well as values. this provision permits state to classify individuals for favoured treatment. Ambedkar has suggested a proviso to article 14 that “nothing in this clause shall prevent the state from making any law for the removal of inequality. although it can be used in conjunction with other relevant consideration like poverty. Article 16 (4) neither confers a right on any one nor imposes a constitutional duty on the government to make a reservation for any one in public services. Had this proviso been adopted there would have been no need to have provision like article 16 (4). State of Mysore. AIR. occupation . Rangachari. but even in the matter of promotion from a lower to a higher post or cadre. 175[144] B.

If unlimited reservations 176[145] Justice Mathews articulated the concept of formal vs numerical equality. v. If one takes the view of formal equality176[145] which simply requires absence of any discrimination in the words of law. 1968 AP 166. AIR. Equality. v. . entitled “Fundamental Rights and Distributive Justice”.Sagar. the controversy of formal vs proportional equality equality has not escaped article 16 (4). State of Andhra Pradesh. Article 16 (4) read by itself rules out other possible ways of encouraging the backward classes in the state employment.179[148] If on the other hand a broader notion of proportional or substantive equality is adopted 16 (4) would not be an exception but an explanation of article 16 (1). 1963 SC 649. AIR. University of Delhi.Balaji. Parmanand Singh. Reservation and Discrimination in India. then the permissible limit of reservations cannot exceed 49 percent as the exception cannot override the original provision177[146]. in his address to the Evening Faculty of Law. then formal non discrimination rule in government services has been given under article 16 (1) and article 16 (4) is simply an exception. New Delhi. This clause could not be read as completely excluding or ignoring the rights of other citizens. Apparently these preferences are not reservations in the strict sense of the term. and this vision of article 16 (4) would enable the state in making exceptional provisions for the purpose of benefitting the backward classes.180[149] The departure from equality could be permitted only to the extent mentioned in clause 4 of article 16. on 25th Jan 1975.R. special coaching and training programmes are included within the power under article 16 (4). For example if 16 (4) is to be an explantion of 16 (1) then 16 (4) would not be controlled by 16 (1) and quantum of reservations under article 16 (4) is not required to be contained within 50 percent limit. application of fees and minimum educational qualifications. 180[149] P. Even reservations have to be made subject to the requirement of article 16 (4) regarding backwardness and under-representation of the preferred groups. State of Mysore. And if article 16 (4) is an exception. 177[146] M. 179[148] Dr. For long it had been the view that article 16 (4) is an exception of article 16 (1) and as such the claims of backward classes could be projected only through the exceptional clauses and not outside them. 1985. Deep & Deep Publications.Despite this level of caution on the part of constitutional framers. 178[147] Ibid. Further if under formal equality vision article 16 (4) is taken to be an exception then the state is not authorised to choose any method for giving favoured treatement to the backward classes in the area of public employment. This was a Symposium on the Consitution of India.178[147] For instance it is unclear whether the preferential rules such as waiver of age requirement.

. N. Constitutional law of India. 1964 (4) SCR 680. Justice Krishna Iyer observed. “ To 181[150] 182[151] Devadasan v.Thomas. Union of India.183[152] However the Supreme Court on appeal upheld the rule by saying that article 16 (1) permits reasonable classification just as article 14 does and as such the state could adopt any method under the former article to ensure adequate representation of the scheduled castes and tribes in public services. was not pomoted despite his passing the test. The result is that the state is not confined only to the method of reservations for encouraging the backward groups in the area of public employment.were permissible . State of Keral v.M. 1993. the government incorporated rule 13 AA under the Kerala State and subordinate services Rules 1958 enabling the government to grant exceptions to the scheduled castes and scheduled tribes employees for a period of two years from passing the necessary tests. N. (1976) 2 SCC 310. it is free to choose any means to achieve equality of opportunity for these backward classes. N.Thomas. The circumstances leading to the scheme were something like this. This also meant that quantum of reservations is not necessarily to be within 50percent limits.M. It was brought to the notice of government of Kerala that a large number of government servants belonging to the scheduled castes and tribes were unable to get their promotions from lower division clerks in the registration department.Seervai. In order to give relief to the backward classes of citizens. The Kerala High Court declared the impugned rule invalid under article 16 (1).M. He questioned the rule 13 AA as violative of article 16 (1) and not saved by article 16 (4). 183[152] H. thirty four out of fifty one posts were filled up by members of scheduled castes and tribes without passing the test. The Court majority held that article 16 (4) is merely an illustration of article 16 (1) and as such is not controlled by article 16 (1). As a result of this rule . this would have the effect of effacing the guarantee contained in equality provisions. This case involved the validity of a scheme showing favour to the scheduled castes and tribes employees by exempting them from the necessity of passing the departmental test for promotion in services.181[150] But in Thomas 182[151]decision the Supreme Court by majority rejected the notion that article 16 (4) is an exception or proviso to article 16 (1).Tripathi Bombay. The majority further held that equality of opportunity in matters of employment demanded favoured treatment to enable the weakest elements to compete with the advanced. The impugned scheme resulting in promotion of over sixty percent of employees of the preferred group was held to be excessive and not conducive to the administrative efficiency.M. a lower division clerk.

. (1964) 4 SCR 680. AIR 1993. 187[156] Indira Sawhney v. 186[155] Ibid. This proposition was forcefully expounded in Devadasan’s case 185[154]. It has been noted that from the very beginning the general explanation given by the supreme Court was that article 16 (4) was an exception of article 16 (1). Holding article 16 (4) to be an explanation of 16 (1). 477. True. It was laid down that a proviso or an exception cannot be so interpreted as to nullify or to destroy the main provisions and therefore the reservations for backward classes should not be so excessive as to create a monopoly or to destroy unduly the legitimate claims of other communities. Various provisions of constitution show that right to equality is not a formal right or a vacuous declaration. Union of India. Union of India 187[156]. But this ruling was overturned in Thomas decision and now article 16 (4) is not an exception but an explanation or instance or illustration and as such 50 percent can not be the outer limit of the reservations. justice Sawant has rationalised that equality of opportunity has to be distinguished from equality of results.e. A caveat has however been posted by 184[153] In fact Justice Krishna Iyer qoted Justice Subba Rao’s dissenting judgement from Devadasan v. Union of India. this sub article i. article 16 (4) serves not as an exception but as an emphatic statement. Article 16 (4) need not be a saving clause but put in due to the over anxiety of the draftsmen to make matters clear beyond possibility of doubt”184[153]. 186[155]The object of the provision under article 16 (4) was to ensure that the backwardness of the backward classes did not unduly handicap their members from securing public employment under the state and when the reservation was so excessive in character as to deny in practice a reasonable opportunity to other classes it was a fraud on the constitution.without mentioning the fact that this was dissenting judgment.my mind. Reservations of more than 50 percent of vacancies per se were held to be destructive of the rule of equality of opportunity. The implication of this ruling was that since article 16 (4) was an exception and could not eat away the general rule of article 16 (1) the quantum of reservations could not exceed 50 percent. it is an illustration of constitutionally sanctified classification. SC. It has been held that Equality postulated under the Constitution is not merely legal but real equality. This view of article 16 (4) has been endorsed in Indira Sawhney v. 185[154] Devadasan v. one mode of reconciling the claims of backward people and the opportunity for free competition the forward sections are ordinarily entitled to …. Union of India. it may be loosely said that article 16 (4) is an exception but closely examined. it is a positive right and the state is under an obligation to undertake measures to make it real or effectual.

is imperative to maintain the balance. however. Reservations in Educational Institutions. Article 15 (1) specifically bars the state from discriminating against any citizen. did the government prior to embarking upon solving the social problem by raising narrow bridge under article 16 (4) to enable the weaker sections of the people to cross the rubicon discharged its duty of a responsible government by constitutional method so as to put it beyond any scrutiny by the eye and ear of the constitution. The court has a constitutional obligation to examine if the foundations of state’s action was within constitutional periphery and even if it was. caste. Determination of socially and educationally backward class status is not a simple matter as sociological and economic considerations come into play in evolving proper criteria for its determination 189[158]. grants. Provisions for reservations in educational institutions to deprived sections of scheduled castes and scheduled tribes has been secured under article 15(4).3. it has to be tested against positive right of a citizen and is a direct restriction on state power. the use of article 15 (4) has exclusively been made so far for providing reservations in educational institutions.P.Jain. race. who had emphasised that “ reservations being negative in content to the right of equality guaranteed to every citizen by article 16 (1). place of birth or any of them. Indian Constitutional Law. it leaves the matter 188[157] 189[158] Ibid. The expression “making any special provision” is evidently an open ended provision and government can really go on providing a whole array of facilities for promoting the interests of socially and educationally backward classes.. sex.Justice Sahai. Nagpur. Interestingly. The two most contentious issues about providing reservations in educational institutions for scheduled castes and scheduled tribes is . M. for example waiver of fees. scholarships. Wadhwa and Company. 1997. thus instead of being ruled out or restricted. special coachings.188[157] 4. loans etc. .(1) Determination of backward class status and (2) extent or quantum of reservations. Article 15(4) lays down the criteria to designate backward classes. Article 15 (4) on the other hand lays down that the state is not prevented from making any special provision for the advancement of any socially and educationally backward classes. waiver of age requirements. Judicial review .

Secondly.191[160] On the whole the courts’ approach has been that state resources are limited. As the Supreme court has emphasised 195[164] 190[159] 191[160] Moosa v. If classification for social backwardness were to be based solely on caste. AIR 1960. State of Mysore. 192[161] State of Andhra Pradesh v. Kerala. . poverty alone cannot be the test of backwardness in India because by and large people are poor and therefore.P. First the backwadness envisaged by article 15 (4) is both social and educational and not either social or educational. See D. Fifthly. place of habitation.N. after due consultations with governor in a particular state specify the castes. AIR 1971. Also this test would break down in relation to those sections of society which do not recognise caste in the conventional sense as known to the Hindu society. poverty. From several judicial prounouncements concerning the definition of backward classes. 195[164] Indira Sawhney v. castes may be a relevant factor to define backwardness. but it cannot be the sole or even the dominant criterion194[163]. The second clause of this article provides the list of scheduled castes specified in the notification issued under scheduled tribes.193[162] Thirdly backwardness should be comparable . State of U. AIR 1993 SC 477. Fourthly. protection to one group affects the constitutional rights of other citizens maintained in public services because it is implicit in the very idea of reservation that a less meritorious person is being preferred to a more meritorious person.Chanchala. However it may be noted that the courts are not precluded from from going into the questions whether the criteria used by the state for the purpose are relevant or not. Union of India. all contribute to backwardness and such factors cannot be ignored. backwardness may be defined without any reference to caste. large sections of population would fall under the backward category and thus the whole object of reservation would be frustrated. Ker 355.Sagar. v. State of Mysore. 193[162] Pradip Tondon v. Sixthly. then the caste system would be perpetuated in the Indian society. P. though not exactly similar to scheduled castes and scheduled tribes. several propositions emerge.to the state to specify backward classes. 194[163] D. Article 340 contemplates appointment of a commission to investigate the conditions of socially and educationally backward classes and such other matters as are referred to the commission. AIR 1971 SC 1762. SC 839. AIR 1982. occupations. AIR 1968 SC 1367. 190[159] The question of defining backward classes has been considered by the Supreme Court in a number of cases. races or tribes which shall for the purpose of this constitution be deemed to be scheduled castes in relation to that state.Chanchala v.N.192[161] This means that a class to be identified as backward should be both socially and educationally backward. Article 341 provides that the President may by notification in a particular state. The court also seeks to guard against the perpetuation of the caste system in India and the inclusion of advance classes within the term backward classes.

Therefore exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests.Seervai. “The expression. Union of India. governments are pressurised to indulge in all kinds of reservations for all kinds of groups apart from the reservations for scheduled castes and scheduled tribes and backward classes. Devadasan v. N. It has not really carved out an exception but has preserved a power untrammelled by the other provisions of the article”. Many deserving candidates thus feel frustrated because of reservations for the less deserving persons and they seek to challenge the scheme of reservations as unconstitutional.n. but only speaks of classes. the candidate belonging to the reserve quota is preferred to the one having no reserve quota.198[167] This Theory of legislative device is not tenable and can be criticised on a number of counts. Basically any reservations is discriminatory for reservation means that as between two candidates of equal merits. 198[167] Justice Krishna Iyer. 196[165] 197[166] State of Kerala v. and that caste and clas are not synonymous. Because of keen competition for limited opportunities available in the country. supra f. ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that of the power conferred thereunder is not limited in any way by the main provision but falls outside it. the majority held that reservation should be less than 50 percent. Till Thomas196[165] case. 1964 (4) SCR 680.Thomas.M. H. the Supreme Court decisions on article 15 (4) had held that this article was an exception and that speaking generally. 15 (4) would not be controlled by 15 (1) and as such the quantum of reservations could go beyond 50 percent.Article 15 (4) does not speak of castes. However in Thomas decision this long held position was reversed and 15 (4) and 16 (4) as well held to be not an exception but an illustration of 15 (1) and 16 (1) the effect of which was that since 15 (4) is just and illustration of 15 (1). lists the following criticism. reservations should be less than 50 percent. 80. The rationale of such a turn around was articulated by Justice Krishna Iyer. AIR 1976 SC 490.M. . In Devadasan’s 197[166]case. Second most contentious issue as has been noted above is the quantum of reservations which has become a knotty socio-political issue of the day .

H. 6. 4 It ignores the legislative history of article 16 (4) which shows that 16 (4) was an exception of article 16 (1). ex majore Cautela.199[168] It may be added in favour of the ibid argument that sub article 15 (1) and 15 (4) are parts of article 15 which appears under the group heading ‘right to equality’.Seervai.Tripathi. A plain rerading of sub articles 15(1) and 15 (2) show that they confer fundamental rights. sex. caste. It ignores the scheme of article 15 and 16 and more particularly the relation of clauses (1) and (2) of article 15 and 16. to clauses (3) and (4) of article 15 and to clauses (3).M. When the passage propounding the theory of a legislative device is examined it will be found that it is difficult to give the words in the passage a rational meaning and at any rate the theory leads to absurd results. It ignores the fact that the words ‘nothing in this article’ appear as the opening words not only in article 16 (4) but also in article 15 (3) and (4) and in article 16 (3) and (5) and in those four sub clauses the opening words are not a legislative device. race. 5. It ignore the decisions of high authority which show that the words ‘nothing in this Act’ or ‘nothing in this article’ are apt words for introducing exceptions. 1993. (4) and (5) of article 16 respectively 2. N.1. It ignores the fact that it is impossible to argue that clauses (3) and (4) of article 15 and clauses (3) and (5) of article were inserted. place of birth or any of them. If any action of the state violates a citizen’s fundamental right under 199[168] Constitutional law of India. . Article 15 (1) confers a fundamental right on every citizen by commanding the state not to discriminate against any citizen on grounds only of religion.M. Bombay. 3.

that sub article 15 (1) and (2) confer legally enforceable fundamental right. with which we are directly concerned. but for the exception. The above analysis of article 15 supports the view consistently taken by the 200[169] H. namely.Seervai. restriction or condition with regard to the matters set out in sub clauses (a) and (b) of article 15 (2). again confers no right much less a fundamental right. on any socially and educationally backward class of citizens or on the scheduled castes and scheduled tribes. Article 15 (3) does not confer any right much less a fundamental right on women and children but merely confers a discretionary power on the state to make special provisions for them. because. This conclusion can further be tested in another way. its subject matter would fall within the earlier provision.557. p. on the prohibited grounds. first. And in this scheme of things a sub article conferring no right but conferring a mere discretionary power on the state is put on a higher plane than the one which confres a fundamental right. If article 15 (1) were repealed. a later provision which takes something out of an earlier provision. Secondly this subordination of sub article 15 (4) to article 15 (1) is further strengthened by the fact that sub article 15 (1) confers legally enforceable fundamental right and sub article 15 (4) confers no right at all. and article 32 and 226 give him a speedy and effective remedy against the state for the protection of his fundamental rights. Article 15 (2) is directed not only to the state but also to any person and it provides that no citizens shall. then article 15 (4) must fall with it or stand impliedly repealed because. is recognised to be an exception because.M. In any event discrimination on the ground of religion is also prohibited by article 15 (1) and scheduled castes are based on religion. be subject to any disability. It would evidently be an absurdity if the part which confers merely a discretionary power is given primacy over the part which confers a fundamental right enforceable directly in the highest court of the land.article 15 (1). but merely confers a discretionary power on the state to make any special provision for the advancement of aforesaid classes200[169]. ibid. Article 15 (4). But in a section or an article. because discrimination on the ground of caste is prohibited by article 15 (1). apart from article15 (1) there is nothing in the constitution which prevents the state from making a special provision for the advancement of the classes mentioned in article 15 (4). because no one can be deemed to be a member of scheduled castes if he does not profess the Hindu or Sikh religion. In the present discussion we are not concerned with sub article 15 (2) except is so far as it reflects the scheme of article 15. liability. Therefore article 15 (4) takes out discrimination in favour of scheduled castes from the prohibition against discrimination on the grounds of caste or religion. no discrimination could be made for example in favour of scheduled castes . and scheduled castes are castes. . then article 13 declares such action to be pro tanto void. Evidently if article 15 (1) stood alone.

But to say this is to say that sub article 15 (4) was not necessary and that the result would have been the same even if it had not been enacted or was struck out. the citizen has a fundamental right under article 15 (1) not to be so discriminated against. For to say that sub article 15 (1) is not in any way affected by sub article 15 (4) and vice versa. Can it be said that sub article 15 (4) is the dominant article and 15 (1) is subordinate sub article ? To ask this questions is to answer it in the negative. cannot be described as occupying a dominant or primary position over an enforceable fundamental right. the state would have no power to make special provision for the advancement of the classes mentioned in article 15 (4). with the consequences that the permissible limit of reservations could not exceed the limit of 50 percent. Secondly the statement that sub article (1) and subarticle (4) are independent of each other leads to an internal contradiction and to an absurd result. This means that a citizen can enforce his fundamental right against the state regardless of what is contained in sub article 15 (4). It has to be noted that since every reservation is a permission of discrimination in reverse the quantum or the extent of reservation assumes great importance for the citizen. There is no third alternative which would describe the relation of article 15 (1) and 15 (4) unless it is said that article 15 (4) has been enacted ex majore cautela. For a sub article which confers no right but a discretionary power.Supreme Court prior to Thomas decision. And similarly the state cannot exercise its discretionary power to discriminate against a citizen. Therefore it follows that the two sub articles are not independent. because such a provision would violate the prohibition of article 15 (1). for the public generally and for the state as well. N. Equally that the state can exercise its discretionary power under article 15 (4) regardless of what is contained in sub article 15 (1).Thomas decision which has been noted above in detail holds that 15 (4) and 16 (4) are not exceptions . First because artcle 15 (4) opens with the words “ Nothing in this article shall prevent the state…” which shows that article 15 (4) is in some way related to or connected with article 15 (1). that is by way of abundant caution. then what is the relation of article 15 (1) and 15 (4).M. An instructive illustration of . But if sub article 15 (4) cannot be treated as the dominant provision can the two sub articles be treated as indepndent of each other ? the answer is “no”. But if the terms of sub article 15 (4) were struck out. This leads to the self contradictory and absurd result that a citizen cannot exercise his fundamental right not to be discriminated against on the ground of caste or religions if the state can discriminate against him on the ground of caste and religion in favour of scheduled castes. must be ascertained.

These facts do not disappear because it is said that to redress a great historical wrong done to a section of Hindu society the individual must put up with the feeling of resentment and injustice and the public and the state must put up with a less efficient public service at least for a reasonable period of time. Lowering of the marks. Such left out candidates would naturally feel a deep sense of resentment and injustice at being passed over in favour of candidates who have scored very low in entrance test. 201[170] Jan-Satta. Those who have specialised medical knowledge in their chosen branch are able to treat better and more effectively. The element of public interest in having the most meritorious students is also present at the stage of post graduate level in medical specialities like superspecialities. Supreme Court in a rather recent case has taken note of article 335 in the interpretation of article 15 (4) and has ruled that selection for the post graduate course in Medical sciences should be inconsistent with article 335. if any. In view of this supervening public interest which has to be balanced against the social equity of providing some opportunities to the backwards who are not able to qualify on the basis of marks obtained by them for post graduate learning. which laid down that the claim of the members of the scheduled castes and the scheduled tribes shall be taken into consideration. New Delhi. in the making of appointments to services and posts in connection with affairs of the union or the states. On the other hand those who gets admission into such courses are not able to make through the relevant courses for a number of years and prove to be drain for the state’s scarce resources. It was for the purpose of avoiding this contingency of getting the inefficiency introduced in the services that article 335 was provided in the Constitution of India. . Patients who are sent to the hospitals are treated by these students who enroll for such speciality courses. consistently with the maintenance of efficiency of administration. It is also for an expert body such as the medical council of India. 1994. 13th June. At this level an ability to assimilate and acquire special knowledge is required. as these entrants occupy posts in teaching Hospitals.such a case can be found in a number of cases occurring almost every year where candidates who have scored as low as 20 percent marks are admitted into coveted courses and those who have scored above 60 or even 70 percent marks are left out simply because they happened to belong to forward castes 201[170]. are to be consistent with the broader public interest in having the most competent people for specialised training and the competing public interest in securing social justice and equality. to lay down the extent of reservations. The injury to the public is that they have to deal with a less able public servant and for the state it is a less efficient public service. Therefore selection of the right calibre of the students is essential in the public interests at the level of specialised postgraduate education.

democratic Republic of India. social economic and political justice”. The language of article 15 (4) shows first that reservations as such are not expressly mentioned in article 15 (4). and backward classes. 1975. to secure to all its citizens. Those measures would also include schemes for training the backward classes to pursue trades or small business which would fetch a reasonable income. or of impairing the efficiency of administration for the purpose of providing protective discrimination. socialist. The underlying assumption of the interpretation of article 15 (4) so far appears to be that unless posts. under article 15 (4) the state can give free education. Parmanand Singh. reservations and discrimination in India. Illustratively those measures would include grant of land either free or on nominal rent the supply of seeds and agricultural implements. the controversies of reservations. 203[172] The word Secular was added in to the Preamble by 42nd Amendment.It has been stated above that the expression under article 15 (4) “Any special provision for the advancement of …. of preferring less meritorious to the more meritorious one. Political justice is ensured by reserving seats and ensuring a 202[171] Dr. has enjoined the “sovereign. 4. It is unfortunate that it has not been utilised for other purposes. how vast and varied are the powers at the disposal of the state it if really takes care to improve the lot of scheduled castes and scheduled tribes. provisions for marketing the produce and the like 202[171]. the supply of expert advice as to how to improve the yield of land. merit scholarships and the like. their status can never be improved. Preferences in Resource Distribution. The Preamble to the Indian Constitution of India.” Is an open ended and very wide provision. Equality. Once this is realised. secular203[172]. Deep & Deep Publications New Delhi. 1985. free text books free uniforms and subsistence allowance. It cannot be said that there are no other methods to consider by which that status can be improved because to say this is to overlook the wide scope of article 15 (4). but fall within the wide expression “special provisions for the advancement of…” It is overlooked that special provisions include every kind of assistance which can be given to backward classes and scheduled castes and scheduled tribes to make them stand on their feet or as is commonly said to bring them into the mainstream of Indian life. which more often than not are accused to be governed by political considerations shall lose much of their shine. . In relation to education itself. starting from the stage of primary education and going right up to University and post graduate education.4. including promotional posts are reserved for backward classes in public employment.

N. These provisions may better be described as the active obligations of the state 205[174]. The State shall secure a social order in which social.214[183] Article 46 which specifically refers to the obligation of the state towards the weaker sections and scheduled castes and scheduled tribes etc provides that “The state shall promote with special care the educational and economic interests of the 204[173] 205[174] See Articles 330 to 334 of Indian Constitution. it must be noted that the provisions included in Directive Principles of State policy are not enforceable in the courts. 204[173]Social and economic justice is intended to be achieved by the state in pursuance of the Directive Principles of state policy contained in chapter IV of the Constitution. the right to work. 206[175] Article 38 of Indian Constitution. Before we note how the reconstruction and transformation of Indian society is intended to be realised. V. 213[182] Article 50. 210[179] Article 45. All these provisions are intended to promote the constitutional scheme to secure equality. however the principles laid down in this part of the Constitution are fundamental in the governance of the country. 211[180] Article 40. These provisions set forth a programme for the reconstruction and transformation of Indian Society by a firm commitment to raise the sunken status of the pathetically neglected and disadvantaged sections of our society. Lucknow. 42 and 43 of the Constitution. to education and to assistance in cases of want. And there shall be adequate means of livelihood for all and equal pay for equal work. 207[176]The state shall endeavour to secure the health and strength of workers. Shukla. Easern Book Company. 1990. 210[179] The state shall take steps to organise village panchayats. 214[183] Article 51. 209[178] Article 44 . 208[177] Article 41. organise agricultural and animal husbandry. and free and compulsory education for children. economic and political justice shall inform all the institutions of national life. 207[176] Article 39 of Indian Constitution. Constitutional Law of India. 212[181] separate the judiciary from executive 213[182]and promote international peace and security. which command the state to remove existing socio-economic inequalities by special measures. 212[181] Article 47 and 48.211[180] promote the educational and economic interests of the weaker sections of the people.206[175] Wealth and its source of production shall not be concentrated in the hands of the few but shall be distributed so as to subserve the common good. . raise the level of nutrition and standards of living.minimum representation to deprived and exploited sections of society in the legislatures and other political bodies. improve public health. just and humane conditions of work and living wage for workers 208[177]a uniform civil code209[178].

5. as the land reforms laws infringed the right to property of the land owners. Action Plans and Amelioration Programmes. AIR. Legal Services Authority Act. In pursuance of these directives . 1962. . and in particular of the scheduled castes and scheduled tribes and shall protect them from social injustices and all forms of exploitation”. loans etc for the deprived sections of the population have been contributing their bit towards the socioeconomic transformation of the country. have been established all over the country. SC 1116. has been a big success and apart from legal services authorities at the central and state level various legal aid committees have been successfully and effectively working at the district and taluka level. This ensued a spate of litigation in the courts. Apart from this various health care programmes such as primary health centres all over the country have been established and various scholarships grants. State of Bihar. In fact so great was the enthusiasm of the government in this particular respect that hundreds of land reform laws were passed in the first five years of Indian Republic. 215[184] 216[185] See Kameshwar Singh v. 1987 which was meant to provide legal aid to all those who cannot afford access to legal services either due to poverty indigence or illiteracy or backwardness. various land re-distribution and allotment programmes have been initiated. For the purpose of providing legal aid to the poor and indigent a vast network of legal aid programmes involving judicial officers.weaker sections of the people. 215[184] However the government was so determined to effect land reforms that the right to property which was provided under article 31 of the constitution was modified six times and finally was done away with for the purpose of avoiding litigation in land reform measures of the government216[185]. 44rth Constitutional Amendment Act of 1978 abolished the Right to Property from Indian Constitution. 4. Bar Councils and law Schools. These distributive schemes are accompanied by efforts to protect the backward classes from exploitation and victimisation.

However an impartial observer of the Indian scene may not have difficulty in concluding that the contemporary discrimination policies have vigorously been followed in post independent India. punishable in accordance with law. attention and favourable policies to scheduled castes and scheduled tribes. It is noticeable that the word “Untouchability” is not to be construed in its literal sense which would include persons who are treated as untouchables either temporarily or otherwise for various reasons. 5. It may be summed up by way of general observations that the present model of compensatory discrimination policies presents a very perplexing conundrum. The word refers to those regarded as untouchables in the course of historical developments in this country. The reservation in jobs and educational institutions has given to a sizable portion of the . Constitution itself abolished untouchability vide article 17 which lays down that “ Untouchability is abolished and its practice in any form is forbidden.In the third group of preferential policies aimed at protective discrimination are various action plans for the removal of incapabilities on the part of the underprivileged groups. Anti-untouchability programme is another area of governmental concern. in pursuance of which Bonded Labour Abolition Act was passed in 1976. but in substance it is special undertaking to remedy the disadvantaged position of the untouchables. On the other hand Untouchability is to be understood in the sense of a practice as it has developed historically in India. The enforcement of any disability arising out of untouchability shall be an offence. attempts to relieve untouchables from the social disabilities under which they have suffered. who are mostly from scheduled castes and scheduled tribes. Anti-untouchability propaganda and the Protection of Civil Rights Act. General Observations. Reserved seats provide a substantial legislative presence and swell the flow of patronage. In recent years there have been strenuous efforts to release the victims of debt bondage. In such a system nothing can remain sans controversies. such as their suffering from an epidemic contagious disease or on account of social observance such as are associated with birth or death etc. These measures may not strictly be called compensatory discrimination in the formal sense of the term. Constitution itself talks about prohibitions of forced labour under article 23. which can be said to be sui generis. And they have produced a substantial redistributive effects as well.

In fact the costs have been enormous. making the beneficiary groups dependent and blunting their development and initiative etc could be said to be costs of these preferential policies. information. wherein the advantages and disadvantages. hopes and frustrations are indisolubly bound to one another. and the security. XXXXXXXXXXXXXXX . undermining the efficiency of administration. patronage and prestige that goes with government job in India. represent the vivacity of the Indian Civilisation. underlining the differences and leading invidious discriminations. which they would have got in the absence of preferential policies. The criticism that these policies have evoked and the debates that take place in India today. However this has not gone without costs.beneficiary group earnings. and connects the past with the future with an unbreakable continuity of the present. Lot of frustration amongst those who have been deprived off the jobs.

Not only that these programmes have been adopted and justified due to a definite past. We have seen in chapter II . thus preparing the grounds for some useful comparative conclusions. how the equality and justice was viewed and administered in Ancient India and how the well thought out socio-political strategies got distorted and rigidified resulting into deprivation of a whole section of the population.Jain. This necessitated a protective action programme as an equalising measure repairing the deprivations and injustices of the past.P. Starting with the depraved slave system.M. Legal And Constitutional History of India. 217[186] M. A Peep into the History of Slave system. American benign discrimination has a chequered history. 1. finally evolving into a full fledged protective action programme. to the civil Rights movementa horrendous civil war. developing of the policy of “separate but equal” doctrine and the disegregation measures.Tripathi. This chapter shall make an attempt to look into this history and then evaluate the policy perspective and the philosophic debates that formuate the present benign discrimination programme of America’s socio-political governance.CHAPTER-IV Equality and Affirmative Action Programme in U. .A. N. The affirmative action programmes or benign discrimination in United States of America too have a definite history.S. a past of deprivations and inhuman treatment of a whole section of the population. but they have had a definite evolution as well. (P) Ltd Bombay. and adoption of fourteenth amendement.217[186] That’s how we concluded in the last chapter that the roots of our present lie deeply buried in the past and that the justifications of such protective measures cannot be properly examined without looking into the past history of any system. 1990.

There were catholic colonies. that came to be known as “Piligrim Fathers”. They were either exterminated or died off under the new conditions. were basically nomads and did not like to settle down. They landed in the north and called the place New Plymouth. Glimses of World History Oxford University press.Pennsylvania is named after the Quaker Penn. Discovery of India. There were also Dutchmen and Germans and Danes and some French men. They would not bend. The voyage across the Atlantic lasted many weeks sometimes months. 222[191] Jawahar Lal Nehru.H. They also refused to work under the conditions of slavery.218[187] There are no accounts of any effective contact of this distant and different world which remained uninfluenced by the happenings in Europe and Asia. 1989. They were a mixed lot. Also see J. Colonists had gone before them to other parts of the North American coastline. nor did they like his religion. With the discovery of the new land there started the influx of Europeans into the American continent. rather they preferred to be broken and broken they were in the subsequent years. and colonies founded by cavalier nobles from England. New Delhi 1989.n. who once inhabited the whole continent. So these people since then called the “Piligrim Fathers” shook the dust of England from off their feet and went to the strange new land across the Atlantic Ocean. Spanish and Portuguese were the dominant partners in the slave trade. By the late 17th century. Jawahar lal Nehru.S. f. 1986. op cit. for which there was a big demand of labour. Oxford University press.As far as we know American continent had no contact with Europe and Asia until the discovery of the new world in the late 16th century. though English too took their full share in this abominable trade.Franklin. 220[189] to found a colony where they would have greater freedom. The Red Indians. From Slavery to Freedom (1974) 221[190] History of civilization. till there were little colonies dotted all over the east coast from north to south. large tobacco and cotton plantations had developed in the Southern America. It was found That this carrying of Africans to America and selling them as slaves was a very profitable business.221[190] Therefore the demand of the labour was met by the supply of the people of Africa who were captured in horrible manhunts and sent across the seas in a manner the cruelty of which is almost beyond belief.2. During all these weeks and months these Negroes lay in these narrow galleries. the Spanish and Portuguese. shackled 218[187] 219[188] Allan Nevins and Henry Steele Commager. 222[191] Special ships slave traders were built with galleries between decks. 220[189] Allan Nevins. from England in 1620. Arjun Dev NCERT New Delhi. Africans specially Negroes were hunted and caught like wild beasts and then chained together and transported to America. (Pocket Book) 1951.219[188] They did not like the autocracy of James I . and Quaker colonies. Many others follwed them. “Mayflower” was the first ship that took a batch of Protestants. and each couple fettered together. The slave trade grew and was subsidized as a business chiefly by the English. . In these galleries the unhappy Negroes were made to lie down all chained up. A Pocket History fo U.

Threats of breaking away from the union were made.225[194] In the meanwhile anti-slavery movement gathered momentum in the north under the leadership of William Lloyd Garrison.op cit f. Aminabad. . 11 States of the South broke away. Two parties arose in the country. Apart from this the economic interests of the north and the South were different. and as early as 1830 friction arose about tariffs and customs duties. and this led to a demand for more slaves in the United States.223[192] The early days of the Industrial revolution led to a great advance in cotton spinning in Lancashire in England. the number rose to 4. for the cotton plantations of the southern states. Slavery was legal but in the north it was not popular and had little importance. After four long years of civil war slavery was abolished and the Negroes were given full rights as citizens and this was made part of the United State’s Constitution.n. The States were jealous of their rights and did not like too much interferences from the Federal Government. The election of Abraham Lincoln was a signal for the South to break away. 1977.n. the other wanting a strong central government. and all the space that was allowed to each of them was five and half feet long by sixteen inches wide. The south depended entirely on slave labour. Vast numbers of such slaves died even before they could reach their destinations at the American Coast. op cit f.6. These cotton plantations were rapidly extended. In 1790 there were 697.000.together. even his assurances that he would respect slavery where-ever it existed. more slaves were brought over from Africa and every effort was made to breed Negroes. 226[195] Despite Lincoln’s all efforts to avoid civil war. The northern states had taken a lead in Industrial development where the new big machine Industry spread rapidly. and where-ever new states were added to the union. calling themselves Confederate States and war ensued in 1861. All these points of difference divided the North and South farther from each other. Jawaharlal Nehru. in the form of 223[192] 224[193] Vidyaratna Swami Nair.000. Lucknow. Prakashan Kendra. 225[194] Allan Nevin.000 slaves in America. In the South there were large plantations worked by slave labour. 226[195] Ibid. 2. in 1861. History of America. the question arose which side they would support.224[193] From the very beginning there was great difference between northern and Southern states. one favouring State sovereignty.

This also envisaged the abolition of all class legislations in the states and to do away with the injustices of subjecting one class to a code not applicable to another. Justice Miller doubted that the equal protection clause could have any application except in cases 227[196] 228[197] Arjun Dev. History of Civilization NCERT New Delhi 1986. This did not break the travails of blacks. even in the ninteen thirties and fourties. and convict labour was leased out to the contractors. Everywhere they were segregated and kept apart from the whites in hotels. wherein the areas. Towards Equality. having scarcity of labour.228[197] The Acts of 1866 and 1870. 2. restaurants.fourteenth amendment. the Act of 1875. Despite abolition of the slavery system and fourteenth amendment rights to all citizens the discrimination against Negroes continued well into mid 20th century. “Equal Protection” expressed the desire to lift that great and good law. trams and even in stores. Marriages between whites and Negroes were forbidden. Bernard Schwartz. called “jim crow cars”. from sitting on the same floor. Decuir. One of the main ideas that went into the formulation of fourteenth amendment was that the States defeated in war should be deprived constitutionally of their power to discriminate against the emancipated blacks and their white protectors.229[198] In denying the application of the equal protection clause to the Louisiana butchering monopoly. American Constitutional Law. colleges. the Supreme Court refused to construe the fourteenth amendment as altering the existing design of federalism. churches. It was also laid down that no state could dis-enfrenchise a man on account of his race. placed the right to equal enjoyment of public inns. . above the reach of political strife. however. parks . on trumped up charges. guaranteed equality of legal status and voting rights against state action. conveyances and amusements regardless of race within the protection of federal law. 1976. bathing beaches. 95 US 485 (1878) and Slaughter House cases. In railways they had to travel in special carriages. There were innumerable number of cases. colour or previous slavery.227[196] The State of Virginia had passed a law as late as 1926 prohibiting while and coloured persons. Negroes were sent to prisons. 229[198] Hall v. Interestingly.

In 1938. That separate responsibility of 230[199] 231[200] Mason and Beany. it preserved the existing federal system at the expense of implementing the principle of “Equal Protection” of laws. 15. the Court invalidated a law under which Gaines. New Jeresy USA. a black applicant. it however fell far short of the modern ideals of the Principles of Equality. but as to what opportunities Misssouri itself furnishes to white students and denies to negroes solely upon the ground of colour. however for the states was. it balked at giving the clause positive meaning. 1978. 235[204] Ibid.233[202] It may be noted that though the opinion of justice Harlan has the touch of progressivism. Prentice Hall Inc Englewood Cliffs. “The basic consideration is not as to what sort of opportunities other states provide. And the answer was found in the formula of “Separate but equal” which got the final approval of the Supreme Court in Plessey v. articulated the majority opinion that the fallacy of the (Negroe) plaintiff’s argument consisted in his assumption that the enforced separation of the two races stamps the coloured race with a badge of inferiority. American Constitutional Law. was refused admission to the School of law.234[203] Missouri made funds available to Gaines and other qualified black applicants to finance their legal education in schools of adjacent states that offered unsegregated educational facilities. for the majority of seven. what would be an acceptable legal principle to support the policy of holding blacks in their former status. Ferguson. op cit f.230[199] By reading the first and fifth sections of Fourteenth Amendment to mean merely that Congress could pass legislation to supersede discriminatory state legislation and official acts ( a power similar to that of judicial review). Chief Justice Hughes. which was disented by Justice Harlan who insisted that the “Law was colour blind”.n. But when in 1883 the court was confronted with congressional legislation. but solely because the coloured race chooses to put that construction upon it. Ferguson. . 231[200] Justice Brown. 234[203] Missouri ex rel Gains v. of the State University of Missouri. If this be so. Canada. and no state can be excused from performance by what another state may do or fail to do.involving the rights of blacks. It is an obligation the burden of which cannot be cast by one state upon another. The persistent question. The admissibility of laws separating the races in the enjoyment of privileges afforded by the state rests wholly upon the equality of the privileges which the laws give to the separated groups within the state. 163 US 537 (1886) 232[201] Ibid 233[202] Dissenting Judgement of Justice Harlan in Plessey v. and argued that by this action it was meeting the separate but equal requirement. disposed of the state’s contention emphatically. It was not until the late 1930s that the court began to give serious attention to equality requirement.. 235[204] That Obligation is imposed by the constitution upon the states severally as governmental entities. or whether they are as good as those in Missouri. 305 US 337. guaranteeing equal protection of the laws to blacks.each responsible to its own laws establishing the rights and duties of persons within its borders.232[201] This was certainly an astounding formulation of Fourteenth Amendment. it is not because of the reason of anything found in the act.

3. Nor did the historical evidence.236[205] was highly significant. In approaching this problem. and that equal protection of laws was thus denied. indicating that it was virtually impossible in practice. The case of Sweatt v.each State within its own sphere is of the esssence of statehood maintained under our dual system. Finally it was in may 1954 that the famous Brown v. when the Amendment was adopted. who had been denied the admission to the University of Texas Law School solely on the basis of colour claimed that the instruction available in the newly established law School for blacks was markedly inferior to the instruction at the University. furnished at the Court’s request and available to it in briefs of counsel. Earlier decisions had eroded the constitutional foundations of the “separate but equal” formula to the vanishing point. said the Chief Justice. for a state to comply with the separate but equal formula. declared that in the field of Public Education the Doctrine of “Separate but Equal” has no place. or even to 236[205] 237[206] 339 US 629 (1950) 347 US 483 (1954) . “we cannot turn the clock back to 1868. Following this the National Association for the Avancement of Coloured people and other organisations pressed the fight against segregation in public schools. In this case the applicant . In a unanimous decision the Supreme Court ordered his admission to the white School. influence the decision. Painter. Death of “Separate But Equal” Doctrine & Protective Discrimination. Separate Educational facilities are inherently unequal. The unanimous opinion of the Court articulated by Justice Warren. Board of Education 237[206]ruling came. Around 1945-50 a group of cases heralded the impending death of the “separate but Equal doctrine”. at least in professional education.

involved in the separate facilities provided. or fortune. Dorsay 359 US 533 (1959) Gayle v. The post Brown decisions strike down all forms of segregation in publicly operated facilities. Maryland. and ethnic origin etc. and States wherein they reside.S. 243[212] Cooper v.239[208] sounded the death knell for all racial segregation. Board of Education. the “Equal Protection” clause providing that “All persons born or naturalised in the United States and subject to the jurisdiction thereof are citizens of U. 378 US 130 (1964). 21. 373 US 526 (1963) State Atletic Comm’n v. Failure to comply with the disegregation demand cannot be justified by the mere fact that officials seem it necessary to prevent interracial disturbances. Its language applies to every person within State jurisdiction without regard to accidents of sex. regardless of the tangible factors. We must consider public education in the light of its full development and its present place in American life throughout the nation.S.n. That is inevitably true of any and all segregation. everyone knows that the purpose of segregation is not to exclude white persons from the facilities used by Negroes. birth. Ferguson238[207] was written.at least where the requirement of state action is met.1896. 240[209] Gaffin v.243[212] Thus came to be established the “Right to Equal Protection” for all without distinction as to race.241[210] The compelling answer to this contention is that constitutional rights may not be denied simply because of hostility to their assertion or exercise. public housing. public buildings. Mephis. and community confusion and turmoil. eating facilities and hospitals and other health facilities. Memphis .240[209] It is no longer open to question that a state may not constitutionally require segregation of public facilities. means exactly what it says in so far as its application is concerned . Brown is based upon the categorical finding that segregation must involve discrimination.242[211] Important as is the preservation of public order it cannot be accomplished by the depriving of Negroe children of their constitutional right. riots. when Plessy v. 24. After all. colour. without due process of laws. nor shall any state deprive any person of life. Georgia 373 US 284 (1963) 242[211] Watson v. Browder 352 US 903 (1956) 241[210] Wright v. Shorn of all its contextual interpretations of 14th Amendment . liberty or property. Brown v. No State shall make or enforce any law which shall abridge the privilege and immunities of citizens of U. but to exclude coloured people from those used by whites. violence. Aaron 358 US (1958) . Unless words are 238[207] 239[208] 163 US 573 (1896) ibid f. Ibid f. nor deny to any person within its jurisdiction the equal protection of laws”.n. Watson v.

there have been discriminations of most invidious kind and the interpretation of this clause has changed from time to time for example. as has been noted that despite its existence in the United States’ Constitution for around a century. beginning most notably with the Supreme Court’s condemnation of school segregation in 1954.as well as artificial persons such as corporations. This is how the language used in “Equal Protection” clause expressed in the individualistic terms came to be used to defend a group. American Constitutional Law. (19760 Plessey v.247[216] merely removed the legal and quasi legal forms of discrimination. Mexican Americans. Also see Mason and Beaney American constitutional Law. Celtic Irishmen. Ferguson. aliens and many others. quotas in employment and public housing and inclusionary admission standards for colleges and universities. 248[217] Yick Wo v. it includes every human being irrespective of citizenship. 163 US 537 ( 1896).244[213] However. Thompson 263 US 197 (1923) : Takahashi v. of 1964 specifically title VI and VII of the said Act. the United States witnessed the emergence of busing to achieve racial balance . This very language came to be interpreted as designed to defend the rights of Chinese. at one time Fourteenth Amendment was quoted as supporting the “separate but equal” 245[214] doctrine. The first step as reflected in the decisions of the courts and the civil rights laws of Congress. 246[215] However. Historical data were cited to show that segregated school systems were in existence when Fourtheenth Amendment was adopted and the advocates of Amendment had not questioned their constitutionality. positive use of governmental power to create possibility of real equality. These actions while not producing true equality or even equality of opportunity logically dictated the next step.249[218] It may be noted that today “equal Protection” clause as well as the Civil Rights Act has come to be viewed as mandating affirmative action programme using racial classifications. Hopkins 118 US 356 : Bayside fish flour co v. But those affected by affirmative action programmes have begun to fashion the weapon of equal protection clause as a shield for the argument that race cannot be a factor in affirmative action programmes. These developoments signified the relevance of race as a factor to achieve actual equality for Negroes and other disadvantaged groups.248[217] By 1964. the United States Supreme Court has finally begun to correct the discrepancy between its ideals and its treatment of the blackman. 247[216] Civil Rights Act. sex or race. Japanese. Pennsylvania 232 US 138 : Terrace v. appearing on behlf of states presented the historical data to press his claims. Indians.deprived of their ordinary meaning. Fishgame Commission 334 US 410 (1948) 249[218] See Robert O’Niel Discriminating against discrimination and Zimmy Beyond Defunis :Disproportionate impact analysis and madated preference in law school admissions 54 NCL Review 317 (1976) . prentic Hall Inc Englewood Cliffs New Jeresy 1978. The opponents of these 244[213] 245[214] Bernard Schwartz. the blacks and by an activist Supreme Court. 246[215] John W Davis. Gentry 297 US 422 : (1936) Patsone v.

Harvard Univesity Press. a white male who applied for admission to the University of California Medical School at Davis.programmes have begun to call such measures as discrimination in reverse. It ruled that race can never be used as a factor in admission programmes. The minority applicants could however compete for all the one hundred places. Deep and Deep Publications New Delhi. lawyers or professors ? He should be considered on his own merits. neither Bakke nor the Weber case has decided finally the question of constitutionality of racial quota. The Constitution is colour blind. Why should a white care how many Negroes are there as doctors. claimed his individual right to adminssion on a non-discriminatory basis. Justice demanded equality without regard to colour and special treatment for Negroes meant recognising colour just when the forward movement of history was turning towards obliteration of colour as a factor in the areas of life. it was argued. Equality. The trial court found in favour of Bakke. 252[221] 99 Supreme Court Report 2721 (1979). however. 250[219] Dr Parmanand singh. Allan Bakke. system.N Fiss “The Supreme court 1978 term: A foreword 93 Harvard Law Review (1979) and Ronald Dworkin’s How to read civil Rights Act.Ed 2nd 570. in Taking Rights Seriously. He complained that he was denied admission precisely because Davis had reserved 16 percent of its places for minority applicants and only 84 percent of the places were open for those belonging to the majority community. was denied admission twice. have brought into focus. the entire range of issues. Allan Bakke.252[221] Interestingly. and ordered the Davis School to admit him. 250[219] The Statement that American Constitution is colour blind. involved and discussed in these cases. 1985. expressed in Justice Harlan’s dissent in Plessey’s case has come to be claimed as the law of the land. The University appealed to the United States Supreme Court. Reservations and Discrimination in India. Weber. involved in preferential action policies. If a Negroe cannot be discriminated against on grounds of race neither can a white be discriminated against on ground of race. let us have a look at the facts of Bakke’s case. however.251 [220] and later in the United Steel Workers of America v. Before we have a look at the range of issues. The California Supreme Court struck down the Davis’ special admission programme as violative of equal protection clause. For an analysis of Weber case se O. 251[220] 438 US 265 57 L. These cases. 1997. These competing arguments against and in favour of benign racial discrimination reached their acme in the case of Regents of University of California v. The equalitarian guarantees of the Constitution accrued to the individuals and not to groups. .

e. i. Justice Powell indicated that a more flexible approach based on individualised treatment adopted in Harvard Law School was lawful method to achieve the goal of having diverse student body. colour or skin. He conceded that the state had a legitimate interest in ameliorating or eliminating the disabling effects of of identified discrimination but this could be achieved not by favouring some persons perceived as members of relatively victimised group at the expense of other innocent individuals in the absence of judicial legislative or administrative finding of constitutional and statutory violations. and so take race into account in such a way that the fact that an applicant is black may tip the balance in his favour just as the fact that another applicant is an accomplished flutist may tip the balance in his. legislative or administrative agency. that do not set target numbers for minority students. And in earlier cases where remedial use of race was upheld none was excluded from the State benefits. they held that Allan Bakke was excluded because of his race. While deciding this Justice Powell had in mind the Harvard School kind of a flexible programme. He held that in no case had the court upheld voluntary use of race conscious remedy as the one adopted by Davis. rather. However the goal of having a diverse student body was constitutionally persmissible but racial quotas were not the least onerous or least intrusive methods to achieve the goal of having a diverse student body. In none of the earlier cases one individual was preferred at the expense of another. This was impermissible .The Supreme Court was equally divided on the issue. one Justice. Voluntary use of racial classifications was impermissible. four justices considered the case on narrow statutory grounds and held that Title VI of Civil Rights Act 1964 mandated “colour blind” approach. Whether race can ever be a factor in admission programmes is not the issue. Remedial use of race could be made only when appropriate finding of past or present discrimination had been made by judicial. regardless of race. Rather it aimes at diversity in the student body. He held that race could be a factor in admission programme provided that none was excluded. . Out of nine Justices who participated in the proceedings. Justice Powell therefore concluded that racial and ethnic distinction of any sort are inherently suspect and thus call for an exacting judicial scrutiny. Justice Powell held that both the equal protection clause and Title VI were designed to protect the individuals right to equality. Out of five who considered the issue on Constitutional grounds. They recognise that racial diversity is as important as geographical diversity or diversity in extracurricular talents and career ambitions.

Thus four justices who decided Allan Bakke’s claim on narrow statutory grounds and Justice Powell who decided his claim both on Statutory and constitutional grounds formed the majority affirming the judgement of the California Supreme Court in so far as it held that Allan Bakke was entitled to admission because he had been discriminated against on ground of race or colour. As such Allan Bakke won beccause five justices thought that he should win on some grounds even though they disagreed on which grounds.

There was another question, whether the race can ever be taken into account in admission programmes. The four justices who considered the issue on narrow statutory grounds had concluded that Title VI of the Civil Rights Act of 1964 mandated “colour blind” approach and whether race can ever be taken into account for such benign discrimination programmes was not the issue required to be considered on Constitutional grounds. On this particular question Justice Powell , who decided the issue both on statutory and constitutional grounds joined the other four, in upholding the proposition that race could be so used. These five judges thus formed the majority for the proposition that racial classification is not per se invalid.

The other four judges whose opinion on racial classifications was most emphatically articulated by Justice Brennan, held that those racial classifications are suspect which impose unfair burdens on the disadvantaged groups or saddled them with disabilities or relegate them to a position of political powerlessness as to command extraordinary protection from majoritarian political process. These justices held that the Davis programme had not discriminated against whites who had no special history of past discrimination. Whites were not stigmatized or disabled by preference given to the Negroes and other historically disadvantaged groups. These justices believed that both the Fourteenth Amendment and the Civil Rights legislation mandated preferential treatment. Voluntary use of race for remedying the effects of past societal discrimination was both constitutionally required and desired. Justice Blackman said that to end racial discrimination race had to be taken into account. These justices were all agreed that to treat some persons equally, they have to be treated unequally for equal treatment of unequals is probably the worst and most pernicious kind of inequality.253[222]

253[222]

D.D.Basu, Shorter constitution of India, Wadhawa Publishers Nagpur, 1997.

The standard of review applicable in gender discrimination cases was applied for reviewing the benign discrimination cases and the test formulated by these Justices was that a racial classification designed to further remedial purposes, must serve important government objectives and must be substantially related to achievement of those objectives”. Applying this standard of review they held that Davis’ articulated purpose of remedying the effects of the past discrimination was substantially important to justify the use of race conscious admission programme where there was a sound basis for concluding that minority under –representation was substantial and chronic and that the handicaps of the past discrimination impeded access of minorities to the medical school. The aim of Davis was to remove the disparate racial impact. Davis programme did not violate equal protection clause. A legislative, judicial or executive determination of past discrimination was not a condition precedent for remedial use of race. Equal Protection clause could not be so interpreted as to perpetuate racial supremacy.

Justice Marshall observed that quotas were implicit in preferential policies. Preferences were already there for veterans and children of alumni etc. All these preferences excluded others. Justice Marshall traced the history of racial discrimination in America and concluded that a university could employ race conscious measures to remedy past societal discrimination without the need for a finding that those benefited were actually victims of that discrimination. It was too ironical, he said , that after several hundred years of group based discrimination against Negroes the Court was unwilling to hold that a class based remedy was permissible. He remarked that in declining to so hold, “Today’s judgement ignores the fact that for several hundred years Negroes have been discriminated against, not as individuals, but rather solely because of the colour of their skin. It was unnecessary in 20th century America ho have individual Negroes demonstrate that they have been victims of racial discrimination”. And he concluded that “this court in Civil Rights cases and Plessey v. Ferguson 254[223] destroyed the movement toward complete equality. For almost a century no action was taken and this non action was with the tacit apporals of the Court. Then we had Brown v. Board of Education 255[224]and the Civil Rights Act of the Congress, followed by numerous affirmative action programme. Now we have this court again stepping in this time to stop affirmative action programme of the type used by the university of California”.

Thus, though Allan Bakke did get the remedy in terms of getting admission in Davis medical Programme, however the questions as to whether racial quota is permitted by
254[223] 255[224]

163 US 537 (1896) 347 US 483 (1954)

“Equal Protection” clause was left unresolved. The other important case which came before the Supreme Court was that of United Steel Workers of America v. Weber.256[225] Bakke tested the affirmative action programme in Univertisties and professional schools. But Weber tested the legality of programmes giving blacks advantages in training programmes for industry, programmes that would benefit more blacks directly and might be expected to have an earlier impact on economic racial inequality. Blacks were seriously underrepresented in the work force of the Kaiser Alunminium company’s plant in Gramercy, Louisiana, where Brian Weber a white labour was employed. Blacks held hardly any of the plant’s craft or skilled jobs. Kaiser agreed with its union to establish a training programme for craft jobs to which current employees would be admitted in order of seniority, that is in the order in which they had entered the plant— except that one black employee would be admitted for each white employee until the number of blacks in skilled jobs formed the same proportion of all skilled workers as blacks formed of the labour force in the Gramercy area. Weber applied for the programme, Louisiana, where Weber worked, maintained a seniority list on the basis of which employees competing for seniority were ranked. Two seniority list were maintained, one for the whites and the other for blacks. Vacancies were filled alternately from the top of the two lists. Weber a white employee with about five years seniority in that plant at that time, was refused admission to three different training programmes, although, because of the quota plan in force some nonwhites having less seniority than Weber were admitted. Weber thought that he was not admitted only because he a was a white. He brought a suit against Kaiser and the Union, on behalf of himself and all white employees at that plant. Weber argued that Kaiser quota plan violated Title VII of the Civil Rights Act 1964.

The Supreme Court by a majority of five to two, upheld the racial quota in the allotment of on the job training opportunities amongst competing employees, instituted by management union agreement. Justice Brennan who articulated the majority opinion held that a quota of 50 percent set up by Kaiser Aluminum Corporations (A private industry) did not violate Title VII of the Civil Rights Act 1964. It was held that the impugned quota plan was designed to eliminate a manifest racial imbalance . Title VII did not prohibit private employers from voluntarily adopting racial quotas. Justice Brennan turning to the legislative history of Title VII and intent of the Congress257[226] in enacting the civil Rights Act concluded that the aim of Congress was to remove the plight of the Negores in America’s economy and Congress really wanted the employers

256[225] 257[226]

99 Supreme Court Report 2721 (1979) For the analysis of the doctrine of Intention fo Legislature, See Ronald Dworkin, How to read Civil Rights Act, in Taking Rights Seriously, Harvard University Press 1997.

to act voluntarily to end racial discrimination. The Private employer’s voluntary effort to correct racial imbalance was, therefore, lawful.

It may be noted that the result reached in Weber is in contrast with that reached in Bakke. Weber did not present a a constitutional question because the action of private employers not being a state action is not controlled by fourteenth amendment. Only governmental agencies must obey the fourteenth amendment guarantee of equal protection. The result is that although Bakke prohibits racial quota by a state instrumentality like University of California Medical School at Davis, Weber permits private racism like the one adopted by a Kaiser aluminum corporation.

It may also be recalled that Bakke decision was indecisive because the four justices who held that the Davis plan was illegal under Title VI of the Civil Rights Act 1964, expressed no opinion on whether it was unconstitutional and therefore no explicit opinion on the underlying issue: the moral issue of the fairness of affirmative action. Weber however is important because it permitted valuable programmes developed by Private initiative to go forward. It is true that the Weber was decided on very narrow statutory grounds, involving an interpretation of one Title of Civil Rights Act 1964, and does not speak about any constitutional issue. “Nevertheless”, Prof Dworkin258[227] put it, “the development of Constitutional law is governed more by the latent moral principles that are presupposed by a good justifications of Supreme Court decisions than by the more technical arguments and limitations set out in the discrete opinions. And weber as such marks a step forward on the part of the judiciary in developing new cocneptions of equality.

4. Competing Arguments.

This however has not put paid to the controversy as to whether racial quotas are legally or ethically valid and here we would like to summarise the arguments that are raised in favour or against the benign discrimination programme. Theoritical underprinnings of these arguments have been more comprehensively taken up in chapter II, here an

258[227]

Ronald Dworkin, op cit f.n.42.

attempt is made merely to summarise the argument, so as to prepare the ground for some valuable comparative statement taken up in chapter V.

Those who favour the benign racial discrimination argue that even if such preferences impose burdens on the members of the excluded groups, they are valid if designed to promote integration of the larger social system.259[228] The compensatory treatment is fully consistent with the values underlying the fourteenth amendment and that such racial classifications should be tested by reference to the present day social realities and against the history of civil war amendments. And the current social reality is that white people as a group have always been more equal than black people.Their argument is that Brown decision did not hold that all racial classifications are per se unconstitutional; rather it held that invidious racial classifications i.e. those that stigmatize a racial group with a stamp of inferiority are un-constitutional. Even Justice Harlan’s remark in Plessy on the colour blind approach was intended to protect Negroes from hostile discrimination and not to prevent efforts to overcome such discrimination and its effects. The majority can be trusted when it discriminates against itself and that the stigma arising from benign discrimination is far less than that resulting from malign discrimination.

The second argument is that the continuing and systematic under-representation of racial and ethnic minorities in the mainstream of American life reduce them into a discrete self perpetuating racial underclass a condition which is neither desirable nor consistent with the ideals of American’s representative democracy. The preference for Negroes will not stigmatize whites. It is the collective interest, governmental as well as social, in effectively ending unconstitutional discrimination. They argue that racial preference does not disadvantage a white any more than a veteran preference or a preference to the disabled and other disparate groups in the society.260[229] Benign discrimination has been part of American heritage and the constitutional tradition requires the courts to allow the legislatures the power to authorise the preferences for racial and ethnic minorities. The courts should not interdict the attempts to achieve genuine equality.

259[228]

John hart Ely, the Constitutionality fo Reverse racial Discrimination Ch Law Review 723 (1974), Also see Robert J Willey “A case for Preferential Admission, Howard Law Journal, 175 (1978). 260[229] These arguments were more succinctly articulated in De Funis case See The Road Not taken Virginia Law Review 917 (1974)

Another argument advanced is that the individual claim for equality is based on the notion that the distribution of goods and services should be on the basis of competence, merit or desert. But these claims based upon the principle for rewarding efforts and competences can be countered by the group’s claim for equality. Where there is a need for rapid and substantial integration of races one’s race can be part of one’s own merit. Merit can be defined by past performaces and potential achievement, but if past performance has been disadvantaged by racial prejudice, poverty or segregation, an evaluation of potential seems much more appropriate. Potential as used here might include reference to the needs of the society and the society might need favoured treatment to the disadvantaged groups. Prof. Dworkin, calls the supposed conflict between desirable social goal and important individual right of being judged on his own merit, “a piece of intellectual confusion”. He goes on to argue that “There is no combination of abilities and skills and traits that constitutes merit, in the abstract; if quick hands count as merit in the case of prospective surgeon, this is because quick hands will enable him to serve the the public better and for no other reason. If a black skin will as a matter of regrettable fact, enable another doctor to do a different medical job better, then that black skin is by the same token merit as well. That argument may strike some as dangerous; but only because they confuse its conclusion- that black skin may be socially useful trait in particular circumstances- with the very different and despicable idea that the one race may be inherently, more worthy than another:.

The opponents on the other hand argue that racial discrimination or preferential policies utilize and later the distributional practice and effects of existing institutions; they alter the rules of the competition so that the favoured have more chances of success. Such policies reduce, efficiency and productivity of administration and destroy standards.

Such policies also unfairly place the burden of helping those who are preferred on those who are excluded. This is an unfair way of distributing the cost of a legitimate goal. 261[230] Better qualifications confer upon the holder a prima facie right to be chosen in preference to any one who is less qualified. The equal protection guarantee and the Civil Rights Act 1964 both mandate a colour blind approach and as a consequences cannot abide the race conscious approach. It may be noted that this is same “Merit”argument which has been noted in Chapter II, and which has been criticised by Prof Dworkin as a “Piece of Intellectual confusion”.

261[230]

Posner, Defunis case and the Constitutionality of preferential treatment of racial minorities , I SC Review (1974)

1997. This brief review of the competing arguments between those who favour benign discrimination and those who do not. Such programmes are aimed at diversity of student body. They recognise that racial diversity is as important as geographical diversity or diversity in extracurricular talents and career ambitions.263[232] In principle they effect a white applicant in exactly the same way . But numerical quotas or reservations are impermissible as they impose unfair burdens on those excluded and they involve the suspension of standards. wherein he supported the flexible protective discrimination programmes like the one of Harvard University that do not even set target numbers for minority acceptance. Harvard University Press. brings home the point that one can argue the case equally effectively on either side and that there is no dearth of arguments on either side. in any important sense more individualised than the other.262[231] This argument is similar to the argument advanced by Justice Powell in the case of Bakke. Compensation to the disadvantaged should be made in such a way as not to exclude anyone. . His fate depends on how much either the handicap or the exclusion reduces his overall chances of success. and so take race into account in such a way that the fact that an applicant is black may tip the balance in his favour just as the fact that another applicant is an accomplished flutist may tip the balance in his. but what matters for a person excluded because of quota system is the chance this gives him in the competition and it does not make any difference to him in principle whether his race is a constant small handicap in the competition for the places or no handicap at all in the competition for a slightly smaller number of places.Another very favourite argument of the opponents of preferential policies is that “Affirmative action programmes should aim at helping the disadvantaged sections of the society enabling them to catch up to the standards of competition set up by the larger society. It is undeniably a very crude strategy to induce social transformation. from the standpoint of individual rights. The point is rather that there is no difference. 438 US 265. The ultimate 262[231] 263[232] This argument was put forward by Justice Powell in Allan Bakke Judgment. between the two systems at all.e. The point is not that factually administering a flexible system may covertly transform it into a quota plan. This also brings forth the limitation of the intrumentality of law in social engineering. by reducing his overall chances and neither is. The handicap and the partial exclusion are only different means of enforcing the same fundamental classifications. It is true that a flexible programme is likely to be more efficient in the long run. What did Bakke really decide? Ronald Dworkin in Takin Rights Seriously. i.

solution of such vexed issue like benign discrimination. depends on the creativity and the goodwill of a social system committed to equality of all citizens. it appears. XXXXXXXXXXXX . each has to bear the social tension and unrest which accompany the idea of benign discrimination. for which stage appears to have been set. How the two systems respond to this tension and unrest in differing social settings and structural realities is the question which shall be looked into in the next chapter. Either one talks of American society which is remarkably uniform in its individual rights approach or India which chooses the path of group rights approach. sanctioned by the Constitution.

In fact equality is furthered by favouring competence and by creating a favoured group for redressing rooted inequalities. but humanism in action for underprivileged sections of society. Distribution according to merit. The need criteria takes into account the inequalities of men affecting their abilites to contribute to the society and decides to disperse benefits to the unequals in order to counterbalance their deficiencies. It implies the giving of favoured treatment to those who are governed by unfavourable circumstances and thus lacking in resources opportunities. desertes. these quantities are to be so harmonised by social technology as to live in functional friendliness. but if the Democracy is not to be a teasing illusion. Deep and Deep Publications New Delhi. Parmanand Singh. or contribution and distribution according to need. both are consistent with the essential principles of equality. in the foreword to the “Equality. and not snarling fretfulness. incentives and background to achieve success on terms of formal equality265[234]. supra. This is not a one shot affair but an incessant struggle between two opposing trends which involve so much of social history.CHAPTER – V Evaluations and Conclusions Equality and quality are two incongruous quantities. A modus vivendi between equal opportunities to the advanced sections of society on the basis of merit and special or protective provisions for the less privileged has got to be worked out to make the democratic system functional in the real sense of the term. 266[235] For details see chapter II.264[233] In a Democratic political system every person from a pauper to a prince has full title to full personhood which includes social economic and political status and opportunity. 265[234] The competing arguments for and against compensatory discrimination have been analysed in Chapter IV. The essence of equality and justice lies in some kind of a leveling process. . environmental 264[233] Justice Krishna Aiyar. pathological politics and Constitutional law internalised in this type of social engineering.266[235] weaknesses and inferiority caused due to genetic. hand in hand with equal opportunites to the more privileged and well to do sections of the population. 1985. are to be provided “Equal Protection of Laws” by special strategies. For the purpose of realising the fullest potential of democracy the victims of social injustices of bygone generations in whichever country they are. Also see the introductory chapter for competing arguments. Reservations and Discrimination in India” by Dr.

their social history and causes of present disparities existing amongst various sections of society. Even if compensation involves social costs. They do not lay down any particular or specific concept of equality and justice . the way they administer these policies of affirmative action.portunity structure of the society than they would have otherwise enjoyed. certain interesting conclusions can be drawn which have great theoretical implications not only to the administration of these policies in these countries. the way the provisions for benign discrimination have been framed in their constitutions. For a balanced . It must be noted that a Legal System. In fact the contents have to be poured into the equality clauses from time to time responding to the currently accepted social values or norms. the state system has the responsibility of ensuring an environment in which every individual irrespective of his caste and creed. With this perspective in mind when we look at the two largest Democracies of the world. descent or place of birth could find the fullest development. In a democratic order. the benefits accruing to the society as a whole will in the long run outwiegh the costs.or historical reasons. but also to a better understanding of the other. India and United States. The preferences promote integration of the disadvantaged groups into the larger society and promote national development as well. imposes burdens on those excluded and affects the standards and meritocracy. sex. have a peculiar mix of specificity and immutability on the one hand and the dynamics of the evolutionary process on the other. This meaning of equality as an aspect of justice is capable of universal application irrespective of the fact whether the constitutional text of a society defines broader notions of equality as defined by the Indian Constitution or it uses the language in the individualistic and universalistic terms as has been done in the constitution of the United States of America. established morality or the constitutional goal to achieve equality overall. The compensatory treatment provides the beneficiaries an access to the op. the way they look at these differences. but also for the democratic functioning and the role of law in the democratic process. community. Such comparative conclusions are necessary desiderata of institution’s evolutionary process that shape the destiny of the human race. These comparisons and contrasts not only lead to “Cross Fertilisation” of the ideas. Redistribution of society’s goods and services in order to remove or eliminate existing inequalities may ultimately be beneficial to the society as a whole. It may be noted that stipulations of equality and justice in a constitution are often expressed in the universalistic or individual terms.

to alter the normal processes and existing patterns. Institut de recherché evolutive. Paris. Here an attempt has been made to compare the two systems. Later on the same system was perverted into a machine of exploitation resulting into deprivations of a large sections of the population. India’s Rebirth. It is the nature of human institutions to degenerate. this can not happen unless conscious interventions by the state system. but the principle on which distribution was based in India was peculiar to this country. Aurobindo. we had discussed in the preceding pages. 1. exclusiveness and superiority replaced the spirit of the duty under Varna system. which has been subjected to second rate denunciations for so long. and he had to cultivate the princely temperament and acquire the strong and lofty samurai traing which alone fitted him for his duties. are made through public action. So it was with the Vaishya whose function was to amass wealth for the race and the Sudra who discharged the numbler duties of services without which the other castes could not perform their share of labour for the common good. and he had to cultivate the spiritual temperament and acquire the spiritual training which could alone qualify him for the task. Social Pathology : Caste and Race. just as much as class in Europe. 2000. to lose their vitality and decay. The Ksatriya was a kshatriya not merely because he was the son of a warrior and prince. and the first sign of decay is the loss of flexibility and oblivion of the essential spirit in which they were conceived. but because he discharged the duty of protecting the country and preserving the high courage and manhood of the nation.equitable and healthy growth. was originally known as Varna System and was an arrangement for the distribution of functions in society 267[236].268[237] In this scheme of things there was no inequality between a devout Brahmin and a devout Shudra as both of them were essential parts of the single Virat Purush. to bring out the differences and similarities between the two systems in their conception. and caste system became the synonym of abominable 267[236] 268[237] For details see chapter III. the individual should have the power to make choices and in an structurally hierarchical society. The spirit of the caste arrogance. (the Cosmic Spirit). “ There is nothing as unequal as the equal treatment of unequals” and therefore the state system has an obligation to take positive steps for the amelioration of the historically deprived and exploited sections of population. . articulation and administration of compensatory discrimination policies. It has been noted in the preceding pages in an elaborate manner that what we know as the caste system of India. A brahmin was a Brahmin not by mere birth but because he discharged the duty of preserving the spiritual and intellectual elevation of the race.

what one finds in the U. In one. the beginning was an ideal one.S. The Negroes got their own fuel for their little cabins from a wooded swamp. there was little inequality in terms of principles at least. Basically nomads these indigenous people refused to work under the conditions of slavery. in the other the very start of the social system was abominable and depraved. In constrast to the ideal beginning of Varna system. Olmsted found plantations where slavery was harsher and more brutish. Frederick. They laboured from dawn to dark. flogging and disruption of families due to sale of slaves were the worst aspects of it. are so obvious. supplemented by vegetables. in as much as the people belonging to fourth Varna were 269[238] For details see chapter IV. It was this realism of Indian scene that led to the adoption of protective discrimination progammes under specific and elaborate provisions of Indian Constitution. tobacco. coffe. with Sundays and sometimes Saturdays free. The Civil Rights movements of 19th century created an awareness about the Rights of these people and the civil war and subsequently 13th and 14th amendments completely changed their status at least in legal terms.S. and two hundred hogs. corn and other crops. A consistent overworking. And in the subsequent years they were literally wiped out. with one short interval at noon for rest. The food allowance was a peck of corn and four pounds of pork apiece each week. Of the one hundred thirty five slaves. This was a plantation of better sort. Law Olmsted. visited one of the first rate cotton plantations in Mississippi. wherein the Negroes in Africa were hunted and caught like wild beasts chained together and brought over to America. nearly seventy worked in the fields. nearly fourteen hundred acres planted to cotton. He found a large and handsome mansion. Specific thing about American slavery was that it was exclusively a Negro slavery.S.thraldom and human injustices under which a substantial class of the people had been groaning for centuries. In summer the hoe gang thus spent sixteen hours in plodding labour.population. which Americans called Red Indians (or simply Indians) was no better. where on Sundays they buy small comforts. three were mechanics and nine were house of stable servants. eggs and poultry grown by the slaves themselves.269[238] The contrasts between the social history of benign discrimination in India and U. system is abominable slave system. Vast number of such slaves died even before they could reach their destinations at American coasts. and calico were generously distributed. The racism of the United States vintage. While in India. Every Christmas molasses. Most of the features that characterised it were connected with the race and not status. The lot of indigenous people.A. has had a different course altogether. In the later half of 20th century benign discrimination kind of a thing was read into the 14 th amendment and protective provisions enforced for the upliftment of these exploited sections of the U. .

to protect health and strength of workers and children of tender age against abuse. 275[244] Article 38. the resolve of the system to constitute India into a “socialist and democratic Republic”. Pocket History of America 1959. the right to equality in its various facets. 272[241] Article 14. making masters chivalrous and the slaves loyal and Christianised the heathen people and gradually elevated them. The directives in no uncertain terms require the state. . to provide for legal assistance and aid. 274[243] Article 23 and 24. equality.270[239] The perpetrators of injustices under the caste system were the people of their own kind. 273[242] prohibition of traffic in human beings. the slave system was justified in economic terms.S.considered as part of the whole. 1950. as it protected the workers in unemployment. dignity of the individual. social economic and political. Preamble to the Indian constitution. including the authorisation of the state to take affirmative action for the benefit of the backward classes. as their conditions were attributed to their ‘Prarabdha’ or destiny. inter alia. . 272[241] the scheduled castes and the scheduled tribes. The Preamble makes explicit in bold letters. abolition of untouchability. to provide 270[239] 271[240] Allan Nevins and Henry Steele Commager.S. the Church continued to debate well into 20 th century whether the blacks and Indians have souls at all ? In the perverted caste system people were exploited in the name of religion. sickness and the old age. 273[242] Art 17. 2. (belonging to the same race) in U. in U. to operate the economic system in such a way that it does not result in the concentration of wealth and means of production275[244] to the common detriment. should inform all the institutions of national life. inter alia to promote the welfare of the people by securing and protecting a social order in which justice. to distribute the ownership and control of material resources so as to subserved the common good. social economic and political justice. to rduce economic disparities. and prohibition of employment of children in facotries 274[243] are clearly representative of egalitarian as opposed to meritarian concept. with a view to securing . being beneficial to both the masters and slaves. part III of the Constitution guarantees certain fundamental rights to the individual which are not all negative in character but envisage positive state action.S. Indian Constitution drafted in mid 20th century has clear cut provisions for social justice and benign discrimination. in U. Among these rights. 15 and 16 of the Indian Constitution. to make available adequate means of livelihood. liberty and above all.271[240] Translating these general principles into concrete legal propositions. A similar kind of a concept with greater vigour and clarity has been expressed in the directive principles of state policy contained in part IV.A. Benign Discrimination Provisions. the perpetrators of injustices under the slave system were a different race.

sickness and diablement and in other cases of undeserved want. on the other hand the Fourteenth amendment provides that “All persons born or naturalised in the U. without due process of laws.276[245] These principles can be enforced notwithstanding the general right to equality in article 14 and right to the six freedoms under article 19 of the Indian Constitution. nor deny to any person within its jurisdiction the equal protection of laws. 276[245] 277[246] See Generally the Directive Principles of State Policy. Special provisions have also been made for such minorities as Anglo Indians. In the U. Fifth amendment contains a due process clause. Equality of right is fundamental in both clauses and each forbids unequal government action such as class legislation that arbitrarily discriminates against some and favours others in like circumstances. A backward class commission to make recommendations for improving the conditions of the backward classes and a commission to report on the administration of scheduled areas have also been conceived in the Constitutional text.right to work. which seeks the same ends as the equal protection clause. Article 334 of the Indian Constitution.277[246] It also directs for their induction into state services and provides special administrative safeguards for them. to promote with special care the educational and economic interests of weaker sections of the people and their protection from social injustice and all forms of exploitation. . The guarantee under this amendment is aimed at removal of undue favour and individual or class privileges on the one hand and at the hostile discrimination or oppression on the other. to secure just and humane conditions of work and provision of maternity relief.S. to provide for living wages and conditions of work ensuring decent standard of life and full enjoyment of leisure and social and cultural opportunities.S. and subject to the jurisdiction thereof are citizens of U. to education and to public assistance in cases of unemployment.. nor shall any state deprive any person of life. There are also provisions to ensure due representation of the weaker sections (scheduled castes and scheduled tribes) in Parliament and state legislators through reservations of seats.S. . liberty or property. and to raise the level of nutrition and standard of living and public health. No state shall make or enforce any law which shall abridge the privilege and immunities of citizens of U.S. old age. and states wherein they reside.

279[248] promotion of the educational and economic interests of the weaker sections of the people and consideration of the claim of the members of the scheduled castes and scheduled tribes… in the making of appointments to services and posts. And this was accepted by Justice Powell in so many words when he remarked that “nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of ethnic groups. reservations of appointments or post in favour of any backward class of citizen.S. It has been noted in the preceding pages that in India the express text of the constitution provides for group rights in so far as it speaks of special provisions for women and children and for any socially and educationally backward classes of citizens278[247] or for the scheduled castes and scheduled tribes. the Constitution contains no comparable language helpful in deciding whether equal protection clause permits or proscribes protective discrimination to racial minorities. The overall tenor of the Indian Constitution offers much support to interpret equality as permitting protective discrimination. He rejected the argument that the guarantee of equal protection permits the recognition of special wards entitled to a degree of greater protection than accorded to others. even at the cost of an individual’s right. of the enabling provisions like Article 15 (4) and 16 (4) which specially authorise the state to take affirmative action for elevation of oppressed classes. not to talk of social welfare provisions like the one enshrined in Directive Principles of State Policy in Part IV of the Indian Constitution. who have not been a victimiser.S. Article16 (4) . There is no principle to force an innocent individual to be asked to suffer in order to promote the welfare of the victims of societal discrimination when such an individual might not be the actual victimiser. Group Right vs. Individual Right. In U. Constitution. on the other hand. 3. In view of these express provisions no one can assert that the right to equality is always an individual right. 278[247] 279[248] Article 15 (3) and (4).There is clearly an absence in the United States’ Constitution. The Indian Constitution affirms the economic and educational betterment of the weaker section of the Indian society whereas no such guideline is supplied in the text of the U.

In the United States in the absence of constitutional language used to defend group claims. According to him. There are competing arguments justifying both the individual and groups rights approach. The majority opinion in the United States of America. Americans support strict adherence to meritocratic standards but will countenance programmes that help bring the disadvantaged group up to the level set by those standards. It is not that only the constitutional and legal language used in the United States. but only the strategic hypothesis that helping them is now 280[249] Nathan Glazer. the programmes are not based on the idea that those who are aided are entitled to aid. national origin is nevertheless treated in law as a problem of protecting the rights of an individual. And if the equal protection clause is used to provide justice for the groups by creating a quota or reservation the right of discriminated against individuals of the excluded groups is said to be violated. that there is nothing like an emerging national consensus that has appeared in America on the permissibility of quotas. That is a plain mistake. (as used in Article 15 (4) and 16 (4) of Indian Constitution). “Individual and Group Rights: Is there any way to resolve the conflict” in Human Rights (ed) Eugene Kamenka and Alice Erhsoon (1978) . in Voting Rights Act 1965. Dworkin. “affirmative action programme seems to encourage…. which is that they assume that racial or ethnic groups are entitled to proportionate shares of opportunities. clearly rejects the group rights approach for the purpose of redressing past injustices. the deprivations of individual rights on the basis of group characteristics.S. the claims of the individual equality as well as the claims of the disadvantaged groups. race. remarked sometime back that from the Public opinion in today’s America.a popular misunderstanding. on the other hand the language used in the Equal Protection clause can plausibly be used to defend both.In the U. one finds a striking degree of consensus against quotas and special preference. even the recent philosophical discussions on the problems of justice ignores the problem of justice for the groups. 280[249] It seems however. Prof. in Fifth. in Civil Rights Act 1964. appears to be very uniform on their individual rights approach. religion. But the whole concept of legal rights has been developed in the United States in individual terms. is used as suggestive of a colourblind theory. George Gallup. Thirteenth and Fourteenth amendment. so that Italian or Polish ethnic minorities are in theory as entitled to their proportionate shares as blacks or Chicanos or American Indians are entitled to the shares the present programms give them.

temples. So far so goo. 1985. have been subjected to all kinds of discrimination for hundreds of years and that has left them socially and educationally backward. scheduled tribes.282[251] These inhabitants of the less visible area of humanity were socially oppressed. or other backward classes for that matter. In India the popular perception about benign discrimination. economically condemned to the live life of the penury and educationally coerced to learn the family trade or occupation and to take to education set out to each caste and class by society. KPK Shetty. . schools and other places and asked to perform unclean and impure tasks without which their very existence and continuance would have been impossible.281[250] 4.an effective way of attacking a national problem. An uneven socio-economic landscape hardly gave them the joy of equal opportunity and development or draw forth their best from man power resources. They do not impose an obligation but merely leaves it to the discretion of the appropriate government to take suitable action if necessary. Justice demands that historican deprivations of these people be repaired and special protective measures be provided to them so as to eliminate their disabilities. (1969). These lowliest and the lost people were denied access to wells. the problems of racial consciousness. and that has been noted in the preceding pages. The provisions for protective discrimination have been held to be enabling provisions . They are born in unequal conditions and die in those conditions. in Ronald Dworkin “ A matter of Principle” Harvard University Press. 281[250] 282[251] Bakke’s Case. But do they have a right for protective discrimination which can be demanded from the state as against the so called victimising community ? As regards the Indian Constitution there is nothing therein. since the scheduled castes.e. i. Policy vs Rights Approach. is that. Fundamental Rights and Socio-Economic Justice in Indian constitution. are quotas unfair. which sanctions such a conclusion. However the case of reverse discrimination during last two decades has been made out persistently and with increasing intensity in the language of Rights and entitlements.

in Ronald Dworkin’s “A Matter of Principle” Harvard University Press 1985. Economic and Political Weekly. The attempt to invest the caste system with legitimacy by claiming that its constituent units have rights and entitlements is an attempt to give it legitimacy and this might in the long run may lead to enormous harm to society and its institutions. on matters of utility of policy. Samiksha Publications. or are led to believe to be matters of right and Justice than they would.This at once raises the temperature of the debate and forces people to adopt intransigent positions. Distributive Justice and Institutional Well being. 284[253] Bakke’s Case: Are quotas unfair.284 [253] Among other things. We may not always be able to measure these . but that it does not do as a matter of right. . In United States on the other hand the case for reverse discrimination has consistently been made out in the name of policy and utility. Policies unlike rights are not absolutes. adopting a policy oriented approach allows a degree of freedom and flexibility in the formulation and administration of such programmes. that is a plain mistake. Understandably. Both costs and benefits should be taken into account in assessing any policy of affirmative action. they have to be examined in terms of costs and benefits. Prof Dworkin rejects categorically the assumption that racial and ethnic groups are entitled to proportinate shares of opportunities and adds. The strongest argument in support of reverse discrimination are made not on grounds of rights and justice but on those of policy and utility. but only on the strategic hupothesis that helping them is now an effective way of attacking a national problem. There is no doubt that caste continues to operate even today in many spheres of social life and in some cases with more vigour and perspecuity. Bombay March 1991. the programme are not based on the idea that those who are aided are entitled to aid. The “quotas for disadvantaged groups are best viewed as matters not of right but of policy”. 283[252] After all how one can exorcise caste from the public mind by consistently deepening the sense in society that castes and cammunities are entitled to their separate shares as a matter of right. but that should not prevent us from trying to form clear judgements about them. 283[252] Andre Betielle. Its continuance is socio-political life is one thing and its legitimacy is altogether a different thing. they find it far more difficult to yield on what they believe. rather than in the language of rights. The persistent use of the language of rights in the public debate for or against benign discrimination is bound to lead to an increase in the consciousness of caste and in that way to defeat the basic objectives of affirmative action which is to reduce and not increase caste consciousness.

Ibid. DeFunis a white applied to the University of Washington Law School. DeFunis claimed that his rights to equality under Fourteenth Amendment was violated. the first is the ‘Right to Equal treatment’ which is the right to an equal distribution of some opportunity or resources or burden. one dying from a desease that is making the other uncomfortable.285[254] Prof Dworkin sought to differentiate. . That programme was good one as it served a useful policy and although it might cause disappointments or even hardships to the individual. 1997. between ‘Equality as a policy’ and ‘Equality as a right’. He repeated the argument that Bakke had no Constitutional right that had been violated by the medical school. he was rejected though his test score and college grades were such that he would have been selected if he had been black. Harvard University press. He maintained that DeFunis has no Constitutional right. that the state provide him the legal education of a certain quality.. Prof. According to him there are two different sorts of rights which a member of a democratic society deemed to possess. 285[254] 286[255] Taking Rights Seriously. 286[255] He returned to the same argument sometime later in an essay on Bakke’s case. that is to say that intellectual standards are justified not because they reward the clever but because they serve a useful policy. which is the right not to receive the same distribution of some burden or benefit but to be treated with the same respect and concern as anyone else. Law schools rely on intelligence test not because people have a right to be tested on intelligence but because it is reasonable to think that community with intelligent lawyers is better off. The second is the ‘Right to treatment as an equal’. I do not show equal concern if I flip a coin to decide which should have the remaining dose of drug. Dworkin met the argument squarely. I have two children. Nor does he have a right to insist that intelligence be exclusive test of admission. when it denied him a place in the interest of its affirmative action programme. where a white applicant had been denied admission to a medical school that had set aside a number of places for members of educationally and economically disadvantaged minorities. but it did not violate his constitutional right.The philosophic debate that ensued in the wake of DeFunis and later after Bakke’s judgment make the above point a bit clearer. This example shows that the “Right to Equal Treatment” is fundamental and “Right to Equality is derivative”.

article 16 (1). But that does not make the derivative right a principal right and a principal right a derivative one. giving primacy to the exception clause and by logic the derivative provision over principal provision.M.e. thus making the whole concept of equality to stand on its head. This clause cannot logically be read as completely excluding or ignoring the right of other citizens. As such the state is not confined on to the method of reservations for encouraging the backward groups in the .e. Article 16 (4) provides that the State may provide reservations of appointments or post 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. The departure from equality i. N.e. The principal argument have been extensively dealt with elsewhere in this work. It is true that sometimes the particular right derived from a general right may be more important in view of contemporary needs of the society. but Prof. Dworkin makes the concept of “Equality of Opportunity” to stand on its head when he concludes that the ‘Right to Equal Treatment’ is the principal right and ‘right to equality’ a derivative right. For long it has been the considered opinion of the Supreme Court of India that article 16 (4) is an exception (i.e. It may be submitted that in view of contemporary political situation an individual citizen may or may not have an unqualified right of admission to a medical or law school. a brief review would not be out of place here.e. article 16 (1) This meant that the claims of backward classes could be projected only through the exceptional clause and not out of it. But in Thomas case. but the principle of “Equality of Opportunity” is certainly a principal right that we can not afford to devalue. It may be noted in this context. on the grounds of merit. however. If unlimited reservations were permissible say to the extent of 80 percent that would have the effect of effacing the principal provision i. Extension of massive quota in India in the name of protective discrimination or making reparations for historical injustices is exactly that kind of a devaluation. Article 16 (1) of Indian Constitution provides that “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. Supreme Court of India rejected this logic and held that article 16 (4) is not an exception but simply an illustration of article 16 (1). article 16 (4) was treated as the main provision and the main provision in article 16 (1) just a derivative principle. wherein the exception i.The above argument is no doubt a very convincing one. that a similar kind of an argument was used by Indian Supreme Court in the State of Kerala v.Thomas. from the main principle of “Equality of Opportunity” enshrined under article 16 (1) could be permitted only to the extent mentioned in clause 4 of article 16. a derivative principle) of the main provision (i.

since article 16 (4) is not controlled by 16 (1). but it is also true that merit in absolute sense has been the hub of civilizations and has been instrumental in the growth and development of human society. not only that the ideal of merit. however. geared to the concept of numerical equality which takes no account of the social economic and educational background of the members of scheduled castes and scheduled tribes. it is also true that there is no absolute right of merit and tht merit itself is a contextual thing depending on societal circumstances needs.M. it has not really carved out an exception but has preserved a power untrammelled by other provisions of the article. Seervai. N. . if the equality of opportunity visualised in article 16 (1) is sterile one. It is free to chose any means to achieve equality of opportunity for these backward classes. Going back to Prof Dworkin’s argument. This was said to be the “Positive Equality”. the tales of how the west has won by the sheer individual 287[256] For an incisive critique of Justice Mathew’s argument. The rapid economic growth that we have achieved is in a large measure. objectives and policies. but the concept of equality of opportunity shall also be undermined. The Horatio Alger stories of rising from rags to riches. American democracy from the very beginning has generally been meritarian in enterprising in character. One of the logical consequences of this kind of an interpretation was to hold that though the amount of reservations should normally not exceed 50 percent. 1993. Constitutional Law of India.area of public employment. The minority argued that if inroads were allowed into the equality notion beyond those permissible under the exception clause. is the result of this merit alone. but falls outside it. the amount of reservations could go beyond 50 percent.Tripathi.M. Bombay. see H. that “Article 16 (4) is capable of being interepted as an exception of article 16 (1).287[256] The minority opinion was that it was dangerous to authorise the State to give preferences outside the protective clause. It is only an emphatic way of putting the extent to which equality of opportunity could be caused even up to the point of making reservations. it is true that there is no absolute right of merit and that merit itself is contextual thing. If Equality of opportunity guaranteed by article 16 (1) means effective material equality.” Elsewhere in the judgement Justice Mathew expressed the opinion that the expression in article 16 (4) “nothing” is a legislative device to express its intention in almost exphatic way that the power conferred thereunder is not limited in any way by the main provisions. efficiency of services and absence of discrimination in the sphere of public employment would be obvious casualties. then article 16 (4) is not an exception to article 16 (1). Justice Mathew observed.

The advent of modernity marked a comprehensive change in its outlook and the human race sought refuge in legal institutions to better its lot. 5. but celebrated excellence. However the basic commitment of quest for just and equal socio-political order remain the same. This idea of Affirmative Action and adoption of policies of preferential treatment in India in the form of Reservations in government services. The excluded ones due to the emphasis on preferential policies have . While the ancients sought the deliverance of human race in religion and God. An argument against merit tends to put a premium on inefficiency which propels the individual to look towards the state for succour in times of crises. The millions of refugees who crossed over from what is now the territory of Pakistan.persistence and determination and accounts of early settlers. has always been endeavouring to devise legal institutions of such character that may ensure a dignified place to every human individual. The contents of such policies differ in the two systems as the differing needs of the socio-economic circumstances demand. It shall be very difficult to found such rags to riches story any where in the world. the medieval societies slipped into hierarchical setting of institutions. The growing emphasis on justice and human rights the world over. They did not ask for sops from the state system in the form of preferential treatment. without any aid from the state and within a decade rose to prominence and became the star performers of Indian economy. legislative bodies etc and in the United States of America. educational institutions. embodies the commitment of these societies to eliminate inequalities of status and invidious treatment. it may be observed that the human race in its quest of peace and prosperity and to control its destiny. There has been Horatio Algers in India as well and that too in millions. during recent years. This putting of crutches in the hands of individuals tends to perpetuate the parasitic existence of a whole section of the population while discouraging and marring the excellence. have emphasized that the “Right to equal concern and respect” is the most fundamental of all rights”. The idea of affirmative action has grown in response to this quest of human race to ensure a dignified place to every human individual under the sun. should be seen in this perspective. therefore. Concluding Observations . in the form of preferential treatment of blacks in jobs and educational institutions. their courage and conviction are all part of the popular lore that most American hold very dear. Going back to our theme of Equality and justice which we had taken up in the introduction. Philosophers like Dworkin and Rawls.

however these very discontents shall prove to be the touchstone for testing the commitment of these societies towards Justice and Equality. XXXXXXXXXXXXXXXXXX .raised some very valid objections as has been seen above.

2. AIR 1974 P & H 270. Rangachari. State of Bihar. State of Punjab. 6. Odegaard. Board of School Commrs 402 U. Ajit Singh v. State of Mysore.N. Dayaram v. Bandhua Mukti Morcha v. Board of Education. AIR 1977 SC 1825. State of Maharashtra. 353 (1963) 16. State of Mysore. Akhil Bhartiya Shoshit Karmachari Sangh Rlys v. Union of India AIR 1970 SC 1050. 19. State of U. AIR 1979 ALL 135. Devadasan v. AIR 1996 SC 75. Brown v.S. Bowman Transportation company. AIR 1962 SC 36. AIR 1964 SC 1823. State of Mysore. 434 US 747 (1975) 18.. 12. G. 33 (1971) 13.Chanchala v. General Manager Southern Railways v. AIR 1999 SC 3471. 347 US 483 (1954) Chamraja v.S.Michael v. Union of India. AIR 1971 SC 1762. D. 15. 8. S Venkateshwar. Douglas v. 416 US 312 (1974) 14. 5. AIR 1984 SC 802. Ashok Kumar Thakur v. California 372 U.List of Cases 1. Chhoteylal v. . AIR 1967 MYS 21. Chitralekha v. 10. Frank v.P. State of Haryana . Chitra Ghosh v. Davis b. 7. Fatehchand v. AIR 1952 Mad 474. 3. Union of India AIR 1966 SC 179.1981 (1) SCC 246. 17. Union of India. 9. DeFunis v. 4. 11.

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State of M. 60. Swann 402 US 43.Thomas. And others. Schlesinger v. State of Andhra Pradesh. 46.R. 334.R. 226. U. 43.v. 265. Ramkrishna Singh v. State of Mysore AIR 1961 Mys. State of M.S. State of Andhra Pradesh . AIR 1960 Mys. 438 U. State of Punjab AIR 1966 Punjab. AIR 1958 AP 569 49. Minerva Mills v. State of Madras. 47. AIR 1968 AP 166.S. 220. v. Union of India AIR 1994 SCC 1. 44. Periakaruppan v. S. Union of India. 63. Melvin Sharp . Ed. I. U.Balaji v. Ramana v. M. T.42. AIR 1974 SC 1 61. State of Jammu and Kashmir v.S 537 (1896). North Carolina State Board of Education. 62. Plessy v. 59. and others. State of Kerala v.M.. (1999) & S CC 120 50. Ferguson 163 U. State of Mysore. State of Tamilnadu AIR 1971 SC 2303. Krammer. Shelley v.P. S. AIR 1963 SC 649. Ramesh Chander v.Khoza. AIR 1972 SC 1775.S. 497. Bellard.S. 45. Preeti Shrivastava v. 466. Regents of University of California v. 1 (1948) 55. Hiralal AIR 1971 SC 1777. AIR 1978 SC 1628. v.S. State of Punjab. 57 L. P.v. AIR 1980 SC 1789. 347 U. Authority of India.Partha v.N. Allan Bakke. 48. N. AIR 1951 SC. AIR 1976 SC 490. 338. P Sudarshan v. 351 (1974) 56. Balram. State of Mysore. 2nd 750. Champakam Dorairajan.Sagar v. .A. 419 U.P. 58. 52. Spottswood Thomas Bolling v. 51. 53.H. 57. 54. Bommai v.

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Philosophers like Dworkin and Rawls. the medieval societies slipped into hierarchical setting of institutions. it may be observed that the human race in its quest of peace and prosperity and to control its destiny. Going back to our theme of Equality and justice which we had taken up in the introduction. should be seen in this perspective. in the form of preferential treatment of blacks in jobs and educational institutions. However the basic commitment of quest for just and equal socio-political order remain the same. The idea of affirmative action has grown in response to this quest of human race to ensure a dignified place to every human individual under the sun. has always been endeavoring to devise legal institutions of such character that may ensure a dignified place to every human individual. have emphasized that the “Right to equal concern and respect” is the most fundamental of all rights”. While the ancients sought the deliverance of human race in religion and God. The contents of such policies differ in the two systems as the differing needs of the socio-economic circumstances 79 demand. This idea of Affirmative Action and adoption of policies of preferential treatment in India in the form of Reservations in government services. The advent of modernity marked a comprehensive change in its outlook and the human race sought refuge in legal institutions to better its lot. therefore. Concluding Observations . The growing emphasis on justice and human rights the world over. during recent years. educational institutions. legislative bodies etc and in the United States of America. The excluded ones due to the emphasis on preferential policies have raised some very valid objections as has been seen above. embodies the commitment of these societies to eliminate inequalities of status and invidious treatment.5. however these very discontents shall prove to be the touchstone for testing the commitment of these societies towards Justice and Equality .

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