LEGAL METHODS DEBATE

TOPIC 5
THBT the constitutionally guaranteed schemes of
reservations are the primary path to social justice
and equity.

MEMORANDUM OF PROPOSITION
Vania Kapoor - 21011281
Shreya Sorcar - 21011242
Pranav Krishna - 21011184
Diya Jindal - 21011599
Devansh Jain - 210112456
Samarth Kackria - 21011307
QUESTIONS PRESENTED
1. What do social justice and equity mean, and how can reservations lead to social
justice and equity?
2. Why are Reservations more effective at creating social change than their alternatives?
3. Why is it essential to increase the representation of minority groups and their beliefs,
culture, and diversity in the law-making process?
4. Has reservation played an active role in empowering women and the transgender
community?
ARGUMENTS
1. RESERVATIONS LEADS TO SOCIAL JUSTICE AND EQUITY
Social Justice and Equity
Social justice is a political theory that focuses on fairness in society and equal access to
wealth, opportunities, and social privileges. It had emerged as a concept in the 19th century to
narrow the wide-ranging inequalities in individuals' social and economic status in society.
Equity promotes the allocation of resources so that an equal outcome is achieved for all
communities.
Reservation and its purpose
A. Reservation is a system of affirmative action in India that provides historically
disadvantaged groups representation, typically through quotas in education, employment, and
politics. It was made mandatory when a large section of our population was deprived of
social and cultural capital. When a particular section of the population has enough economic
resources and higher social status, they have an undue advantage over those individuals who
do not enjoy a similar advantage. The concept of reservation was introduced in 1950, and
since then, it has been appropriately amended to make way for further developments. To fix
this disparity, they were added by our constitution-makers to give a head start to the less-
privileged so that they can reach the level where they can compete with the rest of the
population.
B. "When I was a child, my neighbour used to feed my brother and me whenever my parents
went to the village. She would invite me home for food. I would sit on the floor; her entire
family would sit at the table." In his biography, Bahujan scholar and poet Omprakash
Valmiki described his father's insistence on him pursuing higher education, despite knowing
fully well of the discrimination his son would inevitably face."
– A student from the Dalit community studying at National Law School of India
University. She further explains how she had to face caste stigma growing up. Finally,
she mentions the challenges she faced along the way and how she was scrutinised for
using her provision to the reservation in academic institutions, highlighting a
significant fallacious counterargument against reservation presented in the ongoing
debate on the need for reservation, i.e., certain safeguards for the socially disregarded
is nothing but their "privilege".1
C. The Indra Sawhney v. Union of India case2 is a landmark case decided by the supreme
court of India concerning reservations. It is apt to recall the following observations of
Sawant, J., in the case. He stated, "In a legal system where the Courts are vested with the
power of judicial review, on occasions, issues with social, political and economic overtones
come up for consideration. They are commonly known as political questions. The Courts
have, as a part of their obligatory duty, to decide them. While dealing with them, the Courts
have to raise the issues above the contemporary dust and din and examine them
dispassionately, keeping in view the long-term interests of the society as a whole. The strict
1
Abhishek Asha Kumar, Learning at Law School of High Tables and Floors, QUIRK (May 9, 2020),
http://nlsquirks.in/learning-at-law-school-of-high-tables-and-floors/.
2
Indra Sawhney v. Union of India, (1992) AIR SC 477.
rules of logic cannot always answer such problems. Social realities which have their logic
have also their role to play in resolving them."
D. The Supreme Court of India recognised the need for reservations for the minority or
marginalised. Reservations are not built to make the lower social strata rich or give the
undeserving seats. It is undeniable that reservations have some inherent flaws, such as being
exploited by undeserving candidates for their advantage or furthering social stigma for
individuals of the reserved castes when they enter educational institutions or jobs that they
entered through reservation. Further, in our subsequent arguments, we will explain how
reservations have helped increase representation of how they can facilitate upliftment of
marginalised communities and that there is no other better alternative than reservation to
achieve social justice and equity.
E. The Supreme Court of the United States gave a landmark judgment in Grutter v. Bollinger
in 2003 on affirmative action in university admissions. This case was filed after a white
student who had applied to the University of Michigan alleged that her admission was denied
on the basis that specific minority groups were given preference in the admission process.
The court held that the U.S. constitution did not have any prohibitions on a university using
race as a factor in deciding admissions to their institution. This judgement recognised the
disadvantages faced by certain minority groups and promoted diversity in education. It
further emphasised the need for affirmative action in society. 3
2. RESERVATIONS ARE MORE EFFECTIVE AT CREATING SOCIAL CHANGE THAN THEIR
ALTERNATIVES

A. A new window for debate on the reservation policy has opened up in contemporary India
with the passing of the 124th Constitutional Amendment Bill 20194, which amends Articles 15
and 16. Nevertheless, this window is set into a wall of upper-caste prejudice and offers only a
biased and selective view. Their arguments suggest reservation to be a bribe-like advantage
gifted to undeserving but electorally significant lower caste to make up their vote banks.
Reservation was constrained by the indifference of administrators, wanton misuse by
buccaneer politicians of all castes and, above all, by the instinctive, relentless opposition of
the upper castes. Many argue that reservation as a concept should be scrapped altogether to
make way for a merit-based system in educational and public institutions, and further, the
national effort should be to forget caste and focus on development.5
B. Unlike development, reservation refuses to be blind to caste, and while casteism is an
outdated social construct, it is ubiquitous in Indian society. Many continue to exercise caste-
based discrimination, whether it be passive or active. Reservation is the only state initiative
that positively enables the inclusion of lower castes, farther than merely deterring
discrimination. Government quotas are the only means towards the much-anticipated end of
casteism by fully integrating society and diversifying the elite.

3
Grutter v. Bollinger, 539 U.S. 306 (2003)
4
Article 15 and 16 of the Constitution of India.
5
Hegde, S., The Many “Truths” of Reservation Quotas in India: Extending the Engagement, SOCIAL SCIENTIST
43(3/4), 61, 70 (2015).
 - A recurring argument for altering the existing affirmative-action policy is the financial
standing of many individuals belonging to weaker sections of society. They contend
reservation is no longer necessary since most citizens belonging to socially weaker
sections are "well to do". The Indian Human Development Survey analysis provides
clarity on the nature of employment of different caste groups. The survey reveals that
S.C. and S.T. comprise a total of 4.5% of the working population as White-Collar
employees; they comprise 56% and 48% respectively as part of the Skilled/Semi-Skilled
workforce and 32% each in the Unskilled workforce, while the general populace
comprises of 15%, 43% and 16% of White Collar, Skilled/Semi-skilled and Unskilled
workforce.6 In the methodology: An engineer would come under White Collar Job;
Typist under Skilled or Semi-skilled and Sweeper under Unskilled.7 Therefore, we can
infer that even though S.C.s and OBCs might have a similar share among regular
workers at face value, the nature of jobs S.C.s (and S.T.s) are engaged in is qualitatively
different. Members belonging to socially weaker sections constitute some of the poorest
sections of our populace. There are not a lot of lower castes among our wealthiest
industrialists and people in business, nor our top decision-makers.
In a speech he delivered to the Constituent Assembly, C. Dr Ambedkar, the architect of the
Constitution, highlighted the then-existing injustice and inequalities in our society. To
paraphrase him, he believed that one should begin by acknowledging the absence of two
things in Indian society: 'equality' and 'the wage gap'.8 On a social plane, we have a society
based on the privilege of graded inequality that translates to elevation for some and
degradation for others in India. We have a society where some with immense wealth and
some live in utter poverty on an economic plane. It is evident in the observation made by Dr
Ambedkar that equality should be secured for every citizen while also keeping up with the
rapidly changing socio-economic society.9
D. To do so, reservation is currently the only programme directly addressing caste inequality
and exclusion. If members of S.C./STs enter into Parliament, state legislatures, public
employment, and other walks of life, not passively but rather actively, their social attitudes
inferior would disappear. However, if reservation ceases in our social construct, the weaker
sections of society would not have access to the same opportunities causing the further
disparity. Those in favour of crippling reservation must explain how they propose to confront
the problems as mentioned earlier. Since a strong caste hierarchy cannot coexist with a strong
democracy, the choice between the reservation and its alternatives is evident.

6
Desai, Sonaide, Reeve Vanneman and National Council of Applied Economic Research, New Delhi, IHDS-II,
2011-2012.
7
Mehtabul Azam, Intergenerational Occupational Mobility in India, SSRN, JUN. 29, 2013,
http://dx.doi.org/10.2139/ssrn.2287215.
8
II Ambedkar's Writings and Speeches 185.
9
Arts. 15(1), 16 (2) and 29 (2) of the Constitution of India.
3. IMPORTANCE OF INCREASING REPRESENTATION OF MINORITY GROUPS AND THEIR
BELIEFS, CULTURE, AND DIVERSITY IN THE LAW-MAKING PROCESS

A. In a representative democracy, the primary role of a legislator is a reflective one where

they must represent the views and opinions of their voters rather than following their
convictions like a free agent.10 The purpose of Law is to behave as a conversation between
lawmakers to implement their vision of an ideal society. However, an ideal society for all can
only be achieved if these lawmakers fairly represent all sections of society. By not giving
minority groups a spot at the table to voice their views and help draft laws, they are
systematically removed from society and are taken away from the decision-making process.
B. It is specifically essential to have representation of individuals from minority backgrounds,
especially while drafting laws that directly concern their community not just in principle but
in practice as well because:
i. Individuals from diverse backgrounds can uniquely understand and tackle the specific
problems their communities undergo, along with their community's standard practices
and values. Legislators from marginalised communities who have experienced
oppression first-hand are better able to recognise it and help formulate solutions to
achieve social justice for these groups.
ii. Many issues deprioritised by a homogenous legislature would be more critical if more
equitable representation of other groups. For example, women legislators are more
likely to support and promote bills regarding poverty, domestic violence, healthcare,
gender equity and childcare than their male counterparts.11
C. Often, when members of a particular society populate legislative bodies, the other sections
get neglected. As given in the Critical Mass Theory in gender studies and collective political
action, there needs to be a certain critical mass that needs to be achieved for a minority to be
an influential body (and not a tokenistic body) to create real change. The constitution-makers
were concerned that weaker sections of society would not stand a fair chance to get elected to
the Parliament in an open electoral competition. Without a guarantee to ensure authentic
representation of minorities, these minority candidates are only tokens. They do not have any
real power to create change and pass legislation, while reservations act as a kick-starter to
guarantee the representation of marginalised communities. Once this critical mass in the
legislature is attained, minorities will set new agendas and build new forms of governance.12
For example, the representation of Muslims in the Lok Sabha has declined rapidly since 1980
by nearly two-thirds, even though their share in the national population rose during the same
period. Between 2014 and 2019, when multiple stringent laws were passed that were
considered Islamophobic such as the Citizenship (Amendment) Act, 201913 and the Unlawful
Activities (Prevention) Amendment Bill, 201914, the representation of Muslims in the

10
R. C. PRASAD & DAYADHAR JHA, The Representative Roles of Legislators, 39 THE INDIAN JOURNAL OF
POLITICAL SCIENCE 99 (1978).
11
Suman Ojha, Reservation of Women in the Indian Parliament: Lessons from other countries, 70 The Indian
Journal of Political Science 471-476 (2009).
12
Ibid.
13
THE CITIZENSHIP AMENDMENT ACT, 2019 .
14
THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2019.
Parliament was at an all-time low of 3.5% of the total strength 15. When a legislative body
remains homogenous and not representative of the diversity in its society, it will neglect the
rights of the minorities in the community.
D. Reservations act as a guarantee to ensure representation in legislative bodies. With the
'Mandalisation' of Indian politics in the 1990s and the introduction of reservations for the
Other Backward Class (OBC), there was a doubling of the representation of Members of
Parliament from the OBC community from 11% to 22% during this decade. 16. For the first
time in Indian history, members of marginalised communities finally had a say on the laws
that governed them. However, mere quotas are not enough at uplifting minorities. There must
be systematic change following affirmative action where the social inequality gap between
the minorities and the majority is reduced when accessing opportunities and public facilities.

4. EMPOWERMENT OF WOMEN AND THE TRANSGENDER COMMUNITY BY RESERVATION

Women
Reservation of seats for women in panchayats and municipalities
The issue of political empowerment of women gained momentum throughout the world.
However, the representation of women in the political sphere in India has been problematic.
Given the low representation of women in politics (10% in Lok Sabha and 12% in Rajya
Sabha), the seventy-third and the seventy-fourth amendments in 1993 was passed to reserve
seats for them at the local bodies. One-third of the total seats in direct election to local bodies
such as Panchayats and Municipalities were reserved for women by the Constitution under
Articles 243 D and 243 T17. It was a significant move that massively improved the
participation of women at the grass-root level. After reservation, the participation of women
has gone up to 40% in local bodies. Not only has this helped in the empowerment of women
in the political sphere, but it has also adequately represented their ideas and issues to help
other minority groups.18
Gender quotas present Internationally
Electoral gender quotas have been introduced in a large number of countries all over the
world. As a result, a dramatic change has taken place in the global ranking of countries based
on their women's political representation level. Although deemed controversial by
conservationists, the electoral gender quota has proven to be a highly effective instrument for
achieving equality, provided that it is adequately implemented.
Transgender

15
Afroz Alam, Ensuring representation of Muslims, DECCAN CHRONICLE, Apr. 15, 2019,
https://www.deccanchronicle.com/360-degree/150419/ensuring-representation-of-muslims.html.
16
Christophe Jaffrelot & Gilles Verniers, Explained: In Hindi heartland, upper castes dominate new Lok Sabha,
THE INDIAN EXPRESS, May 27, 2019, https://indianexpress.com/article/explained/in-hindi-heartland-upper-
castes-dominate-new-house-5747511/.
17
Articles 243D and 243 T of the Indian Constitution.
18
RESERVATION OF SEATS FOR WOMEN IN LEGISLATIVE BODIES: PERSPECTIVES (2008).
Reservation as a prospect for the upliftment of the transgender community
India has two million transgender people who continue to live on the fringes of society, often
in poverty, ostracised because of their gender identity. Most make a living by singing and
dancing or by begging and prostitution. 19 Rights groups say they often face colossal
discrimination and have been forced to choose either male or female as their gender in most
public spheres until the National Legal Services Authority v. Union of India judgement20 in
2014 that ordered the government to provide transgender people with quotas in jobs and
educational institutions.
The Karnataka government proactively became the first state to grant 1% reservation for
transgender persons in any service or post in all employment categories to be filled through a
direct recruitment process in July 2021, following the NALSA guidelines. Therefore,
reservations in jobs and the legislature can improve the social and economic status of women
and transgender people –two marginalised communities in our country.21

CONCLUSION
Reservation is as significant to India as communism is to Karl Marx. In the words of
Ambedkar, and to paraphrase, reservation is required to ensure every citizen is entitled to a
level playing field. The reservation policy in India and globally has never been static. Each
generation brings out a different idea of what a reservation policy should entail in an ideal
society. Even though they may argue that the reservation policy is outdated and should be
nullified in its entirety to make way for a merit-based system in education and jobs, we
should not disregard the reality where people belonging to marginalised communities are still
discriminated against in various factions of society. Hence, reservations are the primary path
to social justice and equity. Social justice and equity have the egalitarian goal of equality in
society. Through reservation, individuals from the less privileged communities can enter
reputed educational institutions and jobs. When individuals receive better education and have
better economic opportunities, it leads to the upliftment of their economic status in society
and helps them make a better name for themselves, which improves their status. Therefore,
reservations contribute to a more fair, just, and equal society and, hence, social justice and
equity.

19
BS Team, Transgenders in India may soon get reservation in education under OBC quota, BUSINESS
STANDARD, Nov. 19, 2020, https://www.business-standard.com/article/current-affairs/transgenders-in-india-
may-soon-get-reservation-in-education-under-obc-quota-120111900334_1.html.
20
National Legal Services Authority(NALSA) v. Union of India, (2014) AIR SC 1863.
21
SPECIAL CORRESPONDENT, GOVT. NOTIFIES 1% RESERVATION FOR TRANSGENDER PERSONS IN JOBS, THE
HINDU, JUL. 7,2021, https://www.thehindu.com/news/national/karnataka/govt-notifies-1-reservation-for-
transgender-persons-in-jobs/article35181785.ece.
BIBLIOGRAPHY
INDIAN CASE LAWS
1. Indra Sawhney v. Union of India, (1992) AIR SC 477.
2. National Legal Services Authority(NALSA) v. Union of India, (2014) AIR SC 1863.
US CASE LAWS
3. Grutter v. Bollinger, 539 U.S. 306 (2003)
STATUTES
4. Article 15 and 16 of the Constitution of India.
5. Arts. 15(1), 16 (2) and 29 (2) of the Constitution of India.
6. THE CITIZENSHIP AMENDMENT ACT, 2019 .
7. THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2019.
8. Articles 243D and 243 T of the Indian Constitution.
REPORTS
9. Afroz Alam, Ensuring representation of Muslims, DECCAN CHRONICLE, Apr. 15, 2019,
https://www.deccanchronicle.com/360-degree/150419/ensuring-representation-of-
muslims.html.
10. Christophe Jaffrelot & Gilles Verniers, Explained: In Hindi heartland, upper castes
dominate new Lok Sabha, THE INDIAN EXPRESS, May 27, 2019,
https://indianexpress.com/article/explained/in-hindi-heartland-upper-castes-dominate-new-
house-5747511/
11. B.S. Team, Transgenders in India may soon get reservation in education under OBC
quota, BUSINESS STANDARD, Nov. 19, 2020,
https://www.business-standard.com/article/current-affairs/transgenders-in-india-may-soon-
get-reservation-in-education-under-obc-quota-120111900334_1.html.
12. SPECIAL CORRESPONDENT, GOVT. NOTIFIES 1% RESERVATION FOR TRANSGENDER PERSONS
IN JOBS, THE HINDU, JUL. 7,2021, https://www.thehindu.com/news/national/karnataka/govt-
notifies-1-reservation-for-transgender-persons-in-jobs/article35181785.ece.
JOURNAL ARTICLES
13. Abhishek Asha Kumar, Learning at Law School of High Tables and Floors, QUIRK (May
9, 2020), http://nlsquirks.in/learning-at-law-school-of-high-tables-and-floors/.
14. Hegde, S., The Many "Truths" of Reservation Quotas in India: Extending the
Engagement, SOCIAL SCIENTIST 43(3/4), 61, 70 (2015).
15. Desai, Sonaide, Reeve Vanneman and National Council of Applied Economic Research,
New Delhi, IHDS-II, 2011-2012.
16. Mehtabul Azam, Intergenerational Occupational Mobility in India, SSRN, JUN. 29, 2013,
http://dx.doi.org/10.2139/ssrn.2287215.
17. II Ambedkar's Writings and Speeches 185.
18. R. C. PRASAD & DAYADHAR JHA, The Representative Roles of Legislators, 39 THE
INDIAN JOURNAL OF POLITICAL SCIENCE 99 (1978).
19. Suman Ojha, Reservation of Women in the Indian Parliament: Lessons from other
countries, 70 The Indian Journal of Political Science 471-476 (2009).
20. RESERVATION OF SEATS FOR WOMEN IN LEGISLATIVE BODIES: PERSPECTIVES (2008).