“Protective Discrimination”

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

Any democratic society faces the challenge of harmonising two essentially

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

In all, four under-privileged categories have either received benefits under the scheme
or have been seeking such benefits, namely the Scheduled Castes (SCs) and the Scheduled
Tribes (STs), the Other Backward Classes (OBCs), the religious minorities or sections
thereof, and lately, the women. This project discusses these categories from a political
perspective. Its scope however, is limited to assessing the schemes both under operation as
well as under consideration, only at the national level. The experiences of different states
have been referred to only occasionally to provide an example or to make a particular point.
Meaning and Background
Protective discrimination is the policy of granting special privileges to the
downtrodden and the underprivileged sections of society, most commonly women. These are
affirmative action programs, most visible in both the United States and India, where there has
been a history of racial and caste discrimination. The practice is most prominent in India,
where it has been enshrined in the constitution and institutionalized.

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

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

# Article 17: Abolition of “untouchability” and making its practice in any form a punishable
offence.
# Article 46: Promotion of educational and economic interests.
# Article 16 and 335: Preferential treatment in matters of employment in public services.
# 330 and 332: Reservation of seats in the Lok Sabha and State Assemblies.
Later, the job-related positive discrimination was extended to government-supported
autonomous bodies. A 1974 Government order laid down that all such bodies which
employed more than 20 people, and where 50% of the recurring expenditure was met out of
grants-in-aid from the Central
Government, and which received annual grants-in-aid of at least Rs.200,000 should
invariably provide for reservation of SCs and STs in posts and services. The general rule
which exempted the scientific and technical posts from the purview of positive discrimination
was applicable to the autonomous bodies too.

The Record
SCs and STs
Specific provisions for reservations in services in favour of the members of Scheduled
Castes and Scheduled Tribes have been made as follows in the Constitution of India:-
Article 16(1): There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
Article 16(4): Article 16 provides for equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State, Nevertheless, “nothing
in this Article shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State”.

There have been two Constitution Amendments incorporated in Article 16(4), they are:-
Article 16 (4-A) : Nothing in this article shall prevent the state from making any
provision for reservation in matters of promotions, with consequential seniority, to any class
or classes of posts in services under the state in favour of SCs/STs which in opinion of state,
are not adequate by represented in the services under the state.
The 77th Amendment to the Constitution has been brought into effect permitting
reservation in promotion to the Scheduled Castes and Scheduled Tribes. Thus, by amending
the Constitution, the Parliament has removed the base as interpreted by Supreme Court in
Indira Sawhney that the appointment does not include promotion. Article 16(4A) thus revives
the interpretation put on Article 16. Rule of reservation can apply not only to initial
recruitments but also to promotions. But no promotion can be made in promotion posts for
the OBC’s.
The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a
manner that a balance is struck in the matter of appointments by creating reasonable
opportunities for the reserved classes as well as for the other members of the society.
Article 16 (4-B): “Nothing in this article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in accordance with any
provision for reservation made under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such class of vacancies shall not
be considered together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number of vacancies of that
year.”
The Constitution (Eighty- First Amendment) Act, 2000 has added Article 16(4B) to
the Constitution. The Amendment envisages that the unfilled reserved vacancies are to be
carried forward to the subsequent years and these vacancies are to be treated as distinct and
separate from the current vacancies during any year. The rule of 50% reservation laid down
by the Supreme Court is to be applied only to normal vacancies. This means that the unfilled
reserved vacancies can be carried forward from year to year without any limit, and are to be
filled separately from the normal vacancies. This Amendment also modifies the proposition
laid down by the Supreme Court in Indira Sawhney.
Article 335: This article provides that “the claims of the members of the SCs and STs shall be
taken into consideration, consistently with the maintenance of efficiency of administration in
the making of appointments in services and posts in connection with the affairs of the Union
or of a State”.

Reservation for backward classes in India

ARTICLE 16(4):- This clause (4) expressly provides for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the
state is not adequately represented in the services under the state. Here the term state denotes
both Central and state governments and their instrumentalities.
The power conferred on the State can only be exercised in favour of a backward class and
therefore, whether a particular class of citizens is backward, is an objective factor to be
determined by the state.
It was held in Triloki Nath v. State of J & K, that State determination must be justiciable and
may be challenged if it is based on irrelevant considerations.

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

What are “backward classes U/Art. 16(4) of the constitution?

There was an overwhelming majority in the nation that was still backward – socially,
economically, educationally, and politically. These victims of entrenched backwardness
comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes
(OBC). Even though, these classes are generically the "Backward Classes,” the nature and
magnitude of their backwardness are not the same.
The words ' "backward class of citizens" occurring in Article 16 (4) are neither defined nor
explained in the Constitution though the same words occurring in Article 15 (4) are followed
by a qualifying phrase, "Socially and Educationally'' backward classes.

In the course of debate in the Parliament on the intendment of Article 16 (4), Dr. B.R.
Ambedkar, expressed his views that “backward classes” are which nothing else but a
collection of certain castes. Incidentally, it is also necessary to point out that the Supreme
Court in all its decisions on reservation has interpreted the expression `backward classes' in
Article 16 (4) to mean the "socially and educationally" backward. It also emphatically
rejected "economic backwardness" as the only or the primary criterion for reservation under
article 16 (4) and observed that economic backwardness has to be on account of social and
educational backwardness. The true meaning of this expression has been considered in a
number of cases by the Supreme Court starting from Balaji to Indira Sawhney.
(1) In M.R. Balaji v. State of Mysore, it was held that the caste of a group of persons cannot
be the sole or even predominant factor though it may be a relevant test for ascertaining
whether a particular class is backward or not. The two tests should be conjunctively applied
in determining backward classes: one, they should be comparable to the Schedule Castes and
Schedule Tribes in the matter of their backwardness; and, two, they should satisfy the means
test, that is to say, the test of economic backwardness laid down by the State government in
the context of the prevailing economic conditions. Poverty, caste, occupation and habitation
are the principal factors contributing to social backwardness.

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

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

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

(5) In Triloki Nath v. J & K State (II) Shah, J., speaking for the Constitution Bench has
reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for
the purpose of Article 16 (4) in determining whether a section forms a class, a test solely
based on caste, community, race, religion, sex, descent, place of birth or residence cannot be
adopted, because it would directly offend the Constitution.
The expression ‘backward class’ is not used as synonymous with ‘backward caste’ or
‘backward community’. The members of an entire caste or community may in a social,
economic and educational scale of values at a given time be backward and may on that
account be treated as a backward class, but that is not because they are members of a caste or
community, but because they form a class.

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

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

(8) In Indira Sawhney and Ors. Vs. Union of India and Ors. , the Court observed that:-
# The meaning of the expression “backward classes of citizens” is not qualified or restricted
by saying that it means those other backward classes who are situated similarly to Scheduled
Caste and/or Scheduled Tribes. Backwardness being a relative term must in the context be
judged by the general level of advancement of the entire population of the country or the
State, as the case may be.
# There is adequate safeguard against misuse by the political executive of the power u/Art.
16(4) in the provision itself. Any determination of backwardness is neither a subjective
exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain
objective social and other criteria have to be satisfied before any group or class of citizens
could be treated as backward. If the executive includes, for collateral reasons, groups or
classes not satisfying the relevant criteria, it would be a clear case of fraud on power.
# ‘Caste’ neither can be the sole criterion nor can it be equated with 'class' for the purpose of
Article 16 (4) for ascertaining the social and educational backwardness of any section or
group of people so as to bring them within the wider connotation of 'backward class'
Nevertheless 'caste' in Hindu as to bring them within the wider connotation of backward class
. Nevertheless caste in Hindu society becomes a dominant factor or primary criterion in
determining the backwardness of a class of citizens.
# Unless 'caste' satisfies the primary test of social backwardness as well as the educational
and economic backwardness which are the established and accepted criteria to identify the
'backward class', a caste per se without satisfying the agreed formulae generally cannot fall
within the meaning of 'backward class of citizens' under Article 16 (4), save in given
exceptional circumstances such as the caste itself being identifiable with the traditional
occupation of the lower strata - indicating the social backwardness. And ‘Class’ has
occupation and Caste nexus; it is homogeneous and is determined by birth. It further
approved Chitralekha case.

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

Part III of the constitution in relation to reservation in public services

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

Whether Art.16 (4) an exception toArt.16 (1)?

Although cl. (4) has an over-riding flavour as the opening words “Nothing in the Article shall
prevent the State from……….”, suggest as Mudholkar, J. referring to these words in
Devdasan pointed out: The over-riding effect of cl.(4) on cls. (1) and (2) could only extend to
the making of a reasonable number of reservation of appointments and posts in certain
circumstances. That is all”. The view in T.Devadasan v. Union of India, that Art. 16(4) was
an exception to Art. 16(1) received a severe setback from the majority decision in State of
Kerala v. N.M. Thomas, which held that 16(4) was not an exception to Art.16(1) but that it
was merely an emphatic way of stating a principle implicit in Art.16(1). The view taken in
N.M Thomas has been accepted as the correct one and by the majority in Indira Sawhney
where the Court pointed out: “Indeed, even without clause (4), it would have been
permissible for the State to have evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond
any doubt in specific terms.”

Article 16(4) and Article 335

Article 335: provides that “the claims of the members of the SCs and STs shall be
taken into consideration, consistently with the maintenance of efficiency of administration in
the making of appointments in services and posts in connection with the affairs of the Union
or of a State”. There has been some debate as to whether Art.335 had any limiting effect on
the power of reservation conferred by Art. 16 (4). The nine judge bench of the Supreme Court
in Indira Sawhney considered the argument that the mandate of Art.335 implied that
reservation should be read subject to the qualification engrafted in Art.335 i.e. consistently
with the maintenance of efficiency of administration. Dealing with the argument majority
framed an issue as to whether reservations were anti-meritarian? The majority then observed
that may be efficiency, competence and merit are not synonymous concepts; may be it is
wrong to treat merit as synonymous with efficiency in administration and that merit is but a
component of the efficiency of an administration. Even so the relevance and significance of
merit at the stage of initial recruitment cannot be ignored.

It cannot also be ignored that the very idea of reservation implies selection of a less
meritorious person. At the same time, we recognise that this much cost has to be paid, if the
constitutional promise of social justice is to be redeemed. We also firmly believe that given
an opportunity, members of these classes are bound to overcome their initial disadvantages
and would compete with-and may in some cases, excel members of open competitor
candidates. It is undeniable that nature has endowed merit upon members of backward classes
as much as it has endowed upon members of other classes and what is required is an
opportunity to prove it. But in case of Article 16, Article 355 would be relevant. It may be
permissible for the government to prescribe a reasonably lower standard for scheduled
castes/Scheduled tribes/backward classes consistent with the requirements of efficiency of
administration. It would not be permissible not to prescribe any such minimum standard at
all. While prescribing the lower minimum standard for reserved category, the nature and
duties attached to the post and the interest of the general public should also be kept in mind.
While on Article 355, we are of the opinion that there are certain services and positions
where merit alone counts. In such situations, it may not be advisable to provide for
reservations. For example technical post in Research and Development
organisations/departments/institutions, super specialities in medicine, engineering etc.

Cent percent reservation not permissible:

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

Application of Rotational Rule

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

Extent of reservation
The extent of reservation should not exceed 50%
In Indira Sawhney case the majority pointed out that cl. (4) of Art. 16 spoke of
adequate representation and not proportionate representation-although the proportion of
population of backward classes to the total population would a relevant factor. After referring
to the earlier decisions of the Court, the majority concluded that the reservation contemplated
in cl. (4) of Art. 16 should not exceed 50%. It also pointed out that for the purpose of
applying the rule of 50%, a year should be taken as the unit and not the entire strength of the
cadre.

Concept of creamy layer:

In the Mandal commission case, the Supreme Court has clearly and authoritatively
laid down that the socially advanced members of the backward class, the “creamy layer”, has
to be excluded from the backward class and the benefit of reservation under Article 16(4) can
only be given to a class which remains after the exclusion of the “creamy layer”. This would
more appropriately serve the purpose and object of Article 16(4). At present, the benefits of
job reservations are most chewed up by the more effluent sections of the backward class and
the benefit of the reservation policy is not being percolated to the poor and the really
backward class amongst them which makes them poorer and more backward. So, the
government must give effect to the observation made my Supreme Court in Mandal case in
order to achieve social and economic justice for the whole section of backward classes.

Reservations for Minorities

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

Oppressed and underprivileged women (through centuries of male domination)as a

whole have not received the attention of the Indian state in terms of compensatory
discrimination. One reason for this neglect could be that there were many leading women in
India’s freedom struggle and they always regarded themselves as equals of their male
counterparts. As emancipated women themselves they felt they would serve as role models
for women’s liberation in general. Moreover, against the background of such a great cause as
national independence they felt that emphasising group interests such as women’s rights
would serve to weaken the larger struggle.
Even after independence it took many years for the demand for womens rights to
crystallise. It actually happened under UN pressure. In the early 1960s the United Nations
had asked member nations to “prepare reports on women’s status.” India procrastinated for
years. It responded only in the early 1970s, when the UN decided to observe 1975 as the
International Year of Women. Prime
Minister Indira Gandhi nominated the veteran freedom fighter from West Bengal Phulrenu
Guha to prepare a report on the Status of Women in India. The report, Toward Equality,
which ran into 480 pages and is frequently termed as the “founding text” in feminist circles
was tabled in parliament in 1975. Its recommendations, however, were not for positive
discrimination in favour of women but against discrimination of women for which the state
should be vigilant. Neither the Kalelkar nor the Mandal commissions had a female member.
Had there been one or some female members a demand for reservation for women as an
underprivileged social category may have emerged. For the last couple of decades, primarily
on account of the activities of women’s organisations, considerable social consciousness has
developed in favour of feminist demands.
Sensitivity to the issue is manifest in the way cabinets or the working committees of
different political parties are composed. A recent opinion poll showed that 75% men and 79%
women were in favour of an active role of women in politics. They also favoured reservation
for women in the legislatures.
The United Front government elected in 1996, in keeping with its Common Minimum
Program and in line with the resolution adapted by the 10th Lok Sabha has tabled the
Constitution (81st Amendment) Bill (popularly known as Women’s Reservation Bill)
providing for reservation of one third of the seats in the Lok Sabha and state assemblies for
women. Already at the panchayat level 33% of seats are reserved for them. The bill has raised
a huge controversy in Indian politics. While on the one hand the women activists themselves
are divided about its efficacy it has vertically split the movement between depressed class
women and those champions of the bill who see it primarily as one for gender justice. To add
to the controversy is the opposition of the OBC leaders to the bill. They apprehend that the
bill would deprive them of their hard-earned gains made through years of agitation. They fear
that since their women folk are much more backward compared to their upper caste
counterparts all seats would be taken by the upper castes tilting the political balance once
again in favour of the upper castes.
Different Perspectives

Merit versus Social Justice

The most common criticism raised against the policy of reservations is that it is at the
cost of meritocracy and that it promotes mediocrity which a developing society like India can
ill afford. While apparently and theoretically the argument seems well-founded there is
neither evidence to support the fear nor is it true to say that meritocracy would be the norm
once reservation is lifted. All kinds of undocumented reservations operate in India through
kinship connections, caste connections and professional connections. For instance the Delhi
University Teachers Association (DUTA) is generally opposed to the OBC reservation but
does not mind asking for reservations for the wards of the teachers or for weightage in their
favour for university enrollment. Commenting on the impact of reservations on the
educational standard, sociologist Andre Beteille writes: “Everybody says that the standards
have fallen in the Indian universities. However I find it difficult to judge, firstly, whether
standards have in fact fallen, and secondly, if they have fallen, whether the fall has been due
to affirmative action. At the bottom end of the scale, a very large proportion of the present
crop of graduates would not have graduated in the 1950s. On the other hand the number of
good students is probably higher-so at the top end of the scale, standards are maintained. I
would attribute the lowering of standards in this particular sense to the massive and
sometimes reckless expansion of higher education under political pressure.
It is probably not correct that the weightage system would perpetually introduce bad students
to the university. From the record of the south Indian states it appears that the more the
backward classes enter the system the more their standards improve on account of
competition amongst themselves.
Inherent Contradictions
The more fundamental question, however, is how far the quotas have and other
privileges helped the target groups. As we have seen above the progress in this regard has at
best been marginal.
Whatever progress has been registered by the depressed classes it is more or less
proportionate to the overall progress achieved by the nation. As target groups they should
have shown a visibly better record, but this has not happened. In a country like India where
poverty, illiteracy and deprivation are so widespread, it is a questionable proposition to think
in terms of upliftment for particular social groups, that too by emphasizing reservations
alone. A report on the state of primary education in India brought out by the India Today
portrays a depressing picture of the Indian state’s failure in this regard. The problem as such
is much larger and mere targetting particular sections of society would not do. It is surmised
that since reservations are the least expensive and politically most rewarding the political
parties find them the easiest policy options available to them. A related question is whether
the privileges are being cornered by the élites amongst the target groups. One common
criticism against the reservation policy is that it has benefited only a small section of them.
According to estimates only 6% of the SC families have benefited from the policy. It must,
however, be admitted that even this small number has thrown up leadership for the
community to bargain for the larger interests of the community at large. Moreover, it is a fact
of life that in any community within a competitive polity the initial beneficiaries are
invariably the élites.
This criticism, however, is largely valid in respect of the OBCs where some of the
backward castes are way above others amongst them. As such, any reservation policy meant
for the OBC community as is bound to end in ineffectiveness in the long run by this internal
contradiction alone. As most of the underprivileged amongst the OBCs would ask for their
rights there would be cleavages in the OBC identity as is now being seen in Bihar. There the
Kurmis and the Koiris are opposing the Yadavs, both belonging to the OBC category.
Moreover, with other demands being raised for quota allocations by women, professional
groups, the poor from the upper caste Hindus, and so on, there is a possibility that the entire
system of OBC reservation would collapse as a result of these divisions.

Persistence of Caste Prejudice

One other issue which needs to be discussed here is whether there can ever be any real
improvement in the lot of the underprivileged sections of the society, whether they belong to
the SC/STs or the OBCs, without attacking the caste system itself, this being the essence of
the debate between Gandhi and Ambedkar. Can the elimination of the stigma experienced by
the underprivileged be achieved through the philanthropy and grace of the upper caste Hindus
or has it to be earned or wrested by the under-privileged themselves through their struggles,
even violent struggles. If violence is inherent in the circumstances would it not perpetuate the
caste cleavages at the cost of social harmony? In any event it has been noticed that the quota
system has eliminated whatever goodwill the upper castes had for the lower castes. As one
non-Indian scholar wrote in 1979 “In the course of my visits to India over two decades I have
noticed an erosion and virtual disappearance of a liberalminded public opinion supporting
private efforts to improve opportunities for the S.C.”
This lack of concern is manifest in the record of private sector employment. “The
pervasive overestimation of the amount and effectiveness of preferential treatment reinforces
the notion that enough (or too much) is already being done and nothing more is called for.” A
recent study based on interviews of 500 Punjab government employees stationed in
Chandigarh reveals the deep-seated prejudice among the non-SCs against the quota privileges
meant for the SCs. Particularly prejudiced are the Class II and III categories of the
employees. Caste conflicts are rampant as a reading of the Annual Reports of the Home
Ministry reveals. During 1996 there were 672 caste-related incidents involving all the three
broad caste categories, namely, the Forward Castes, the OBCs and the SCs.
A Spectre of Two Indias
In the current context the most critical question is whether two Indi as are being
created by two diametrically opposite socio-political forces-the demand for modernisation on
the one hand bolstered by the opening up Affirmative Action in India 163 of the economy
and its integration into the techno-intensive global economy -- and on the other, the demand
for social justice undermining the core of that theory. One calls for the withdrawal of the state
and the other assigns to the state the role of the greatest dispenser of equity. Against this
background it would be increasingly difficult for the state to implement its policy of
reservations especially where the OBCs are concerned. On the one hand the number of
government jobs is shrinkig while on the other pressure for more jobs is mounting.
There is yet another related issue. Greater liberalisation of the economy means more
modernization of trade and industry. The traditional vocations of the backward classes such
as cleaning, haircutting, fishing and tanning are under threat of being controlled by the upper
castes particularly in the urban areas. With the growing use of technology in these trades they
are no longer looked down upon as occupations. Therefore, the backwards cannot depend any
more upon the state; they would have to respond to the market as well. This brings into
question the broader recommendation of the Mandal Commission.
Conclusion
The debate over positive discrimination in India is acrimonious and is increasingly
finding expression in violence. But a democracy which is essentially a social contraption is
neither dictated by logic nor by ethics. At the root of democratic success is social engineering
which is affected through political bargaining. In India the process is on and only the future
would tell whether its experiments were in the right direction or not.
Social categories are neither static nor monolithic. But in India the hierarchical stratifications
have by and large survived for centuries and they continue to be politically relevant. In the
given situation the policy of reservation seems to continue for an indefinite period, at least for
the SC/STs. But this is the easiest thing that the state could think of. The real challenge for
the state should be to make the disadvantaged groups competitive through raising their
standards so as to let them be on par with the traditionally successful upper classes. That is
cost intensive and for that there has to be a shift in the dynamics of power. The disadvantage
would have to come to the fore of politics. The present Dalit movement seems to be straws in
the wind indicating this penchant for transformation which is bound to be violent.
The same may not, however, be said about the OBCs. Unlike the SCs and STs the so called
OBCs have held political power in different historical periods in different regions of India.
They are neither as socially stigmatized nor at the bottom of the economic hierarchy as the
scheduled castes In short socially stigmatized nor at the bottom of the economic hierarchy as
the scheduled castes. In short they are not such an ostracised lot as the SCs have been. Given
this situation the demand for OBC reservation is indeed politically motivated, the logic
behind which is largely indefensible. In any case, increasingly the role of the state would be
in question. The assumption here is that the Indian society is traditionally violent and
vertically and horizontally disintegrative. It is the enormous military power in the hands of
the central government, both during the Mughals and the British that actually contained it.
The apologists for state power argue in favour of a militaristic role of the state to maintain
societal order while the champions of civil society put the blame squarely on the state for the
growing violence in the society. The debate warrants a closer scrutiny against the background
of the social acrimony that the policy of reservation has accentuated.