INTRODUCTION Affirmative action has at its heart the concepts of equality, compensatory justice and distributive justice.

Countries in which there exists an overwhelming disparity between different castes, classes and races, there usually exists some form of affirmative action in place. (delete) AFFIRMATIVE ACTION IN INDIA Caste (Casteism) has given rise to a massive programme of affirmative action in India. It (Casteism) has existed in the society over a very long period of time, particularly among the Hindus. But, the concept of caste was not confined to the Hindus only. Divisions of a very similar kind have also existed among the Muslims, Christians and other religious communities. They also exist in some form or the other among the tribal communities in India.1 Basically, the concept of caste was (evolved out of) the division of the population into large number of groups which were ranked in a kind of hierarchy (add: based upon the occupation a group pursued). Among the Hindus, there is not just the division of the society into groups or just the practice of caste, but also a theory which seeks to describe, explain and justify these divisions. The scheme of such division has been described (existed) among the Hindus for at least 2000 years (as mentioned) in medieval religious texts. There are four major divisions ± Brahman, Kshatriya, Vaishya and Shudra, ranked in the given order. The Brahmans are the teachers, scholars and priests. Kshatriyas are the kings and warriors, Vaishyas the merchants and traders and Shudras the service providers and labourers. Each of these majors (major) divisions is further divided into numerous sub-divisions which also follow a hierarchy. In the Indian society, it was a hierarchal social order. Inequalities not only existed, but they were also considered right, proper and desirable. The legitimacy of this form of ranking was taken for granted by and large. Even though it was questioned from time to time, but over a long period, the legitimacy of this ranking was taken for granted in the classical, legal and religious literature of the time.2 The basic principles of this order are

Andre Beteille, CASTE, INEQUALITY AND AFFIRMATIVE ACTION, International Institute for Labour Studies, Geneva, 2002, p.2 2 Ibid, p.40


Hindu reformers emerged among which Jyotiba Phule was a prominent figure. 3 History of Reservation Policy in India. the low caste community. HISTORY OF AFFIRMATIVE ACTION IN INDIA Pre-independence initiatives to eliminate untouchability date back to the early 19th Century when the Christian Missionaries took lead in adopting the cause of the Depressed Classes seeking to provide welfare for them.5 The same was applied for government colleges as well. the Hunter Commission under Sir William Hunter was appointed. printed by the Superintendent of Government Printing. whether provincial. Calcutta. The report of the commission reads:6 ³We therefore recommend that no boy be refused admission to a Government college or school merely on the grounds of µcaste¶. accessed 10 October. municipal or local´.3 He established the Satyashodhak Samaj in 1873. One of the recommendations of the commission was to provide for education of the boys from the lower castes in schools maintained on public funds ³for it is in evidence that a few lowcaste boys of ability have already advanced beyond the elementary stage and are demanding an entrance into secondary schools.516 -2- . It was started as a group whose main aim was to liberate the ³lower´ castes from exploitation and oppression. It should be now re-affirmed as a principle. By the 1850s. 2010 at 1803 hrs.ambedkar.149 6 Ibid.found in the Manusmriti or Manudharmashastra.129 5 Ibid. <www. which is wholly maintained at the cost of public funds. and be applied with due caution to every institution. 1883. Moreover.pdf>. REPORT OF THE INDIAN EDUCATION COMMISSION. The commission was to look into uplifting the education system in Then in1882. p. p. p. 4 Sir William Hunter. not reserved for special races. following the example of Christian missionaries.´4 The commission further recommended that all such primary schools maintained at the cost of the school boards be understood as open to all castes and classes of the community and special aid to be assigned on account of low-caste pupils. in some Provinces at least. are becoming alive to the advantages of education. The logic of caste is explained and it gives the blueprint of a quintessentially hierarchal society.

Dr. Ambedkar.R. 7 th Edition 1992. SIMON COMMISSION AND INDIAN NATIONALISM. Anand. It was to inquire into the working of the system of the government.267 9 Kusum Sharma.268 -3- .225 10 S. various options emerged ± pursuing a system of nomination. University Book Agency Allahabad.L. Bakshi.65. matters connected with such issues and any other matter affecting British India and the provinces which might be referred to the Commission. AMBEDKAR AND THE IND IAN CONSTITUTION.10 But (Though) the Commission rejected separate electorates for the depressed classes but (yet it) retained the concept of reserving seats in general electorates:11 ³The commission recommends that in all the eight provinces. The Government of India Act of 1919 was an important British legislation passed during turbulent times and it had a huge impact on the development of Indian governmental institutions. there should be some reservation of seats for the Depressed Classes on a scale which will secure a substantial increase in the number of Members of Legislative Councils drawn from the Depressed Classes. Munshiram Manoharlal Publishers. p. creating separate electorates.9 The Simon Commission submitted its final report which contained recommendations of (for) reform. p.R. CONSTITUTIONAL LAW AND HISTORY OF GOVERNMENT OF INDIA. Ashish Publishing House New Delhi. MP. B. development of representative institutions. There was strong support for separate electorates among the concerned communities and their representatives proposed combining separate electorates and reserved seats. and reserving seats in government with a general electorate. 8 Ibid 7. C. 4th Edition 1976. a seven member commission headed by John Simon. was appointed in 1927. It identified the need to safeguard the interests of minorities and disadvantaged sections of the Indian society. p. p.The next major step (initiative) towards affirmative action came (was taken) during the World War II. Third Edition 1992. 11 Ibid 7. p. growth of education. submitted a report to the Commission requesting it to recommend for a separate representation in the legislative council for the depressed classes.7 Consequently. Following submission.´ 7 Prof. then a member of the legislative council of Bombay. One of the most important provisions of the act (Act) was for the appointment of a statutory commission after ten years.266.8 The Simon Commission toured every province of India.

G.15 The provisions under the Award led to widespread disapproval with Gandhi heavily criticising it 16 and Ambedkar felt that too few seats were reserved for the depressed classes. p.17 The disapproval among the political leaders and representatives of various communities ultimately led to the retraction of the award and the British Government and Indian leaders reached upon a new agreement. The Communal Award of 1932 by Ramsay MacDonald established separate electorates and reserved seats in the legislatures for different communities of the Indian society.189.14 The Second Round Table Conference was thus inconclusive and this lead to the Communal Award of 1932 by Ramsay MacDonald. 186. Asia Law House Hyderabad. 16 CITE SOME BOOK ON GANDHI 17 Prof.The electorate was to be general. appealed for separate electorates. and the Muslims got 489 seats.C. 15 Ibid.195. including the reserved seats. First Edition 2008. Macmillan India Ltd. a Round Table Conference was convened in London in 1930 to review the Commission¶s proposals. However. 14 Ibid 13.150 -4- . p. AMBEDKAR AND THE INDIAN CONSTITUTION . known as the Poona Pact of 1932. were to be filled by election. Ambedkar. p. the then Prime Minister.R. which were reserved for these depressed classes. The minorities and depressed classes got a total of 78 seats (61 for the Hindus) in all the 9 provinces out of a total of 1488 seats. But this was opposed by Gandhi and the Congress arguing that such classes were inseparable from Hinduism and that the provision for separate electorates would only lead to further division in the Hindu society.13 A Second Round Table Conference was held in 1931 and Dr. 12 13 Ibid R. 194.12 Following the submission of the report of the Simon Commission. DR. The rest of the seats were reserved for Englishmen. Pradhan. but seats. But no definitive decision could be reached and the general reflection of the entire meeting was inconclusive. B. It was also declared that the special constituencies for the depressed classes would come to an end after 20 years. Hindus got 776 seats. these measures were supposed to be tentative with the view that improvement in conditions of the concerned groups would eventually lead to these reservations being unnecessary.). RAJ TO SWARAJ. representing the depressed class. Manoher Rao (ed. p. First Edition Reprint 2009.

In 1946. Provisions were made in the Constitution for reservation for the backward (depressed) classes termed as Scheduled Castes and Scheduled Tribes in educational institutions and legislative an appropriate amount of money out of the educational fund of every province was earmarked for providing education facilities to the members of the Depressed Classes. In the central legislative assemblies. more than the double that were given to them under the Communal Award. 1935. 2010. <http://www. Also.R. accessed on 18th October. B. The Constitution was brought into force in 1950. Ambedkar was made the Chairman of the Drafting Committee.htm>. 18% of the seats allotted to the general electorate were reserved for them.The Pact provided for reservation for the depressed classes out of the general electorate.ambedkar. the Constituent Assembly was set up to draft the Constitution of India and an Advisory Committee on Minorities was set up and Dr. -5- . They were given a total of 148 seats in the provincial legislatures. 18 Text of Poona Pact. This current system was to remain in place for the (delete) 10 years following the signing of the Poona Pact.18 The provisions decided under the Poona Pact were implemented under the Government of India Act.

1 He further goes on to quote Lelah Dushkin ± ³nowhere else is so large an underprivileged minority granted so much special treatment.4 Affirmative action usually is a state¶s preferential policy toward particular groups in the society.112 -6- . p. Lok Sabha Secretariat. In particular.minorities should stop feeling oppressed by the mere fact that they are minorities and that..´ The founders of the Constitution wanted to encourage national unity and.. Fourth Reprint 2003. MINORITIES AND AFFIRMATIVE ACTION. POLITICS OF INCLUSION: CASTE.5 It invokes ideas of fairness toward disadvantaged groups and redresses them for unjustified 1 Marc Galanter. the main focus is to address structural inequalities between different groups in societies... The endeavour was not only to create a society wherein the citizens felt an immense sense of national identity and cultural diversity.437 2 Ibid 3 CONSTITUENT ASSEMBLY DEBATES Vol. Oxford University Press.5. p.. THE COURT AND THE CONSTITUTION OF INDIA. Annual Number February 1979. COMPENSATORY DISCRIMINATION IN POLITICAL REPRESENTATION. p. Economic and Political Weekly. First Edition 2009. but also to provide protection to historically disadvantaged and vulnerable groups. First Edition 2008. Even though the rationale for affirmative action may vary from place to place. facilitate progressive social change. Chinnappa Reddy. at the same time. p..19 5 O.214 4 Zoya Hasan.CHAPTER 3: RATIONALE OF AFFIRMATIVE ACTION IN INDIA ³The Indian effort to secure equality by means of preferential treatment or compensatory discrimination is unique in scope and extent´.´2 The need for reservation (reservations) for minorities was outlined (articulated) by the Chair of the Advisory Committee on Minorities at the time of the drafting of the Indian Constitution3: ³. Oxford University Press. on the contrary. we think that it is the fundamental duty of the state to take special steps to bring up those minorities which are backward to the level of the general community. they should feel that they have as honourable a part to play in the national life as any other section of the community. observes Marc Galanter.

UNDERSTANDING INSTRUMENTAL AND MORAL JUSTIFICATIONS FOR AFFIRMATIVE ACTION. Under such conditions. Center for Studies in Higher Education. 11 Purshottam Aggarwal. University of Colorado at Boulder. gender. 280 10 Supra 5. AFFIRMATIVE ACTION FOR DISADVANTAGED GROUPS. It emphasizes compensatory and corrective action to rectify unfair treatment by caste. POLITICS AND ETHICS OF THE INDIAN CONSTITUTION. p. Oxford University Press.7 Such policies are usually justified as a compensation to the victims of past discrimination and maltreatment and a corrective measure for the historic. historically and in present times. but also had stunted growth throughout their lives sans material comforts.8 8 Asha Gupta.10 It is a conscious attempt to restructure a given social order in such a way that marginalised social groups get adequate opportunities to realise their potential and obtain their due share in the collective resources of the society. The defense is also rooted in the theory of compensation. Moses. accessed 21 November. http://www.asp?filename=Ne051306beyond_caste.6 Rectifying past wrongs to a particular section of the society is one of the most important rationales of affirmative action. 2006..13 9 Supra 6. these people were never given equality of opportunity and resources which ultimately led to their sidelining and limited growth. Tehelka. make for a good defense for efforts to improve the status of the group. Vol.11 Certain sections of the society have not only inherited inequality. The state seeks to 6 Ashok Acharya. p. First Edition 2008.13. ed.3 Issue 18. AFFIRMATIVE ACTION IN HIGHER EDUCATION IN INDIA AND THE U. Reservations in legislative bodies and educational institutions serve to compensate for social disadvantages and economic disparities based on caste and community. University of Californi a. ethnicity.tehelka.8 The relative position of the disadvantaged group in the society and the duration of the position.. BEYOND CASTE. p. p. USA. 268 7 Michele S.inequalities by way of redistributing and reallocating resources for their upliftment and to bring them at par with the rest of the society.9 The rationale of distributive justice focuses on equity and redistribution of resources. social and political injustices against certain groups due to prejudice on the basis caste. p. in Rajeev Bhargava. Berkeley..S. The disadvantaged group was put in the position by others and the compensatory measures are owed to the group by the society as whole. living on the margins of society and serving those who pushed them to the 2010 -7- .asp. etc. 13 May.

It has been noted that for ³subsidies to reach the backward classes.13 In an inherently unequal society like that of India. 273 Supra 6. Los Angeles. they will help to promote both quality education and employment opportunities at a lower level. dominance of a few castes ensures that the administrative structure is also dominated by those castes which were dominant. p.12 A major part of this strategy of redistribution of resources is to mitigate the conditions of disadvantaged groups on a quick and short track so that noticeable change is brought about in their conditions and equalise the position between unequal groups. ed.15 12 13 Supra 6. not just an opportunity to compete for access.281 14 Meera Deo. AFFIRMATIVE ACTION RATIONALES AND OUTCOMES: A COMPARATIVE ANALYSIS OF THE UNITED STATES AND INDIA.160 -8- .ensure non-discrimination while distributing goods and opportunities while including policies that seek to redress past discrimination.15.. they must themselves be senior bureaucrats.´14 If a significant number of people from the backward classes will be in a high position as a result of reservation in higher education. CHALLENGES TO DEMOCRACY IN INDIA. Reservation provides for this chance of growth and equal access to opportunity and resources. Providing access to all. First Edition 2009. Any administration subjugated by particular vested interests cannot ensure distributive justice. This is a good enough reason for providing them with quality education and opportunities for employment in the public sector. University of California. Department of Sociology. Oxford University Press. 15 Rajesh Basrur. through formal reservation points to distributive justice. p. p. USA. p. and ensuring this access.

15 and 16.2 Article 15 prohibits discrimination against any citizen in any matter on the basis of religion.73 5 Ibid. p. Lexis Nexis Butterworths Wadhwa Nagpur.34 3 Ibid. race.1 Part III of the Constitution. CASTE BASED DISCRIMINATION IN INTERNATIONAL HUMAN RIGHTS LAW. Article 14 provides for equality before the law and equal protection of the laws within India. p. p.LEGAL ASPECT OF AFFIRMATIVE ACTION IN INDIA The measures taken by the government for the uplifting the status of the socially disadvantaged castes and classes of India find their basis in the Constitution of India. race. Article 16(4)(A) further makes a note that the State shall provide for reservation for backward classes. 5 Article 29(2) states that no citizen of India shall be denied admission into public institutions or aid from the government funds on the basis of religion.6 Article 46 of the Constitution comes under Part IV and is a Directive Principle of State Policy which provides for both developmental and regulatory aspects of policy 1 David Keane. p.4 Furthermore.64 4 Ibid.166. upholds equality before the law and equal protection of the law. Ambedkar was one of the principal architects of the of the Constitution and also the provisions enshrined in it for a system of reservations for the Scheduled Castes. CONSTITUTIONAL LAW OF INDIA. This system sought to redress the bias caused by historical inequalities in the Hindu social system. Article 15(4) further allows the government to make special provisions for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes. First Edition Reprint 2009. caste or language. Article 15(4) read with Article 29(2) entitles the State to reserve seats for members of the backward classes in such institutions. caste. This is enshrined in Articles 14. Eighth Edition 2008. the Fundamental Rights. sex or place of birth. Ashgate Publishing. 168 -9- . pp.78 6 Ibid.3 Article 16 holds that there shall be equality of opportunity for all matters relating to employment to any office under the state. Scheduled Tribes and the Other Backward Classes.117 2 Durga Das Basu. Article 17 of the Constitution expressly abolishes untouchability and says that its practice in any form is forbidden. p.

´ Even though the Directive Principles are not enforceable by any court. and shall protect them from social injustice and all forms of exploitation. they are like guidelines for the government and fundamental in the governance of the country.making for the weaker sections of the society known as the Directive Principles of the State.10 - . of the people. of the Scheduled Castes and the Scheduled Tribes.457 9 Ibid. It reads: (Article 46 of the Constitution. the lower house of the Parliament. the state assemblies.655 . p. and Vidhan Sabha. p. p. included in the Directive Principles of the State (Part IV of the Constitution) provides for that:) ³The State shall promote with special care the educational and economic interests of the weaker sections. The government should keep in mind these principles while formulating its policies and making laws.213 Ibid.7 Article 243D provides for reservation of a minimum number of seats in the village Panchayat for Scheduled Castes and Scheduled Tribes.9 7 8 Supra 2. Article 330 provides for reservation of seats in the Lok Sabha. and in particular.8 Part XVI of the Constitution deals with special provisions relating to certain classes.

the fact that caste is the major criterion for determining reservation and thus the caste distinctions have not disappeared.1 The results of reservation policies are gradually coming into effect. Critics of the reservation policy assert social integration is under threat as such a policy perpetuates distinctions and breeds resentment.CHAPTER 4: PROBLEMS ASSOCIATED WITH AFFIRMATIVE ACTION IN INDIA One of the most critical factors in the successful implementation of affirmative action in India is the reaction of the people who are not benefitted by it. universities are accepting SC and ST students whose standards are lower ± and thus academic elitism is being undermined in this process. they are often economically and educationally disadvantaged. government officials and university graduates. 472 . Another argument against affirmative action is that rather than choosing the best candidates by academic merit. despite the state¶s intention to abolish the system of caste from the society. There is an increase in the number of SC and ST politicians.11 - . ed. And hence meritorious individuals are denied admission to elite institutions of higher education. SOCIAL STRATIFICATION. Also. Muslims also feel disadvantaged by this policy. At the heart of this debate is one of the unique features of Indian reservations ± that the number of people not favoured by the policies is far outnumbered by the number of people that come under the policy favours. p. There are debates over whether such a policy such exist. actually benefit. They feel that even though their religion is casteless. slowly edging out the upper castes out of jobs which they earlier dominated.. Oxford University Press. those with educational and economic advantage. leaving the majority of SCs and STs as badly off as ever. Ninth Edition 2004. It is also argued that only the privileged among the minority. Upper caste Indians feel disadvantaged and discriminated against by the policy which favours the Scheduled Castes and the Scheduled Tribes by assigning them places in government jobs and institutes of higher education. 1 Dipankar Gupta. what the criteria should be or how the scheme should be implemented.

Upper caste Indians feel disadvantaged and discriminated against by the policy which favours the Scheduled Castes and the Scheduled Tribes by assigning them places in government jobs and institutes of higher education. Ninth Edition 2004.Though India has successfully implemented the Constitutional mandate of affirmative action to uplift the social and economic status of the scheduled castes and scheduled tribes in India yet it has been criticised on various counts. Besides. While criticising caste system. Critics of reservation policy also assert that social integration is under threat as such reservation policy perpetuates distinctions and breeds resentment. there is continuous debate over the issue whether it should be extended to the successive generations of the SC/STs who have already availed of the benefits of reservations. Oxford University Press.. SOCIAL STRATIFICATION.2 Caste people allege that reservations promote mediocrity as merit is scaled down to accommodate reserve category candidates in educational institutions as well as in services and meritorious candidates among caste people are edged out in the process. Political India is simply caste driven. All political moves. Upper castes are generally critical of extending the benefits for so long whereas it was provided for only first ten years from the date of enactment of the Constitution. They further aver that despite the state¶s intention to abolish the system of caste from the society. Despite criticism.12 - . 472 . p. ed. But such criticism is unfounded as similar kind of phenomena exists among upper castes also. we simply forget that caste is still 2 Dipankar Gupta. caste is the major criterion for determining eligibility for reservation benefits and thus caste system has thrived. impact of reservations is there to be seen as a number of SC/ST political leaders. are made keeping in view the caste equations. At the heart of this debate is one of the unique features of Indian reservations ± that the number of people not favoured by the policies is far outnumbered by the number of people that come under the policy favours. academicians and civil servants have been successful in creating a niche for themselves which otherwise they would never have been able to. even economic policies. economic and political intercourse in India. They also point out that a particular section of SC/STs or a particular caste among SCs corners benefits of reservations thus creating elitism among them leaving vast majority marginalised. Criticism is again baseless as moot question is whether we really want to make caste irrelevant factor for social.

social and economic thought.a dominant factor in India which dominates Indian political. . Criticism based upon abolition. Muslims and Christians would never have agitated to claim its benefits though both these groups are presumed to be casteless and claim egalitarianism the essence of their religions. Had the reservation policy been socially undesirable. since the implementation of Mandal Commission recommendations. Besides. many more castes in India have been agitating to get the OBC status to claim benefits of the reservations. mediocrity and social and economic integration is merely posturing to oppose the reservations as they allow the erstwhile depressed classes to claim benefits of democratic governance in India.13 - .