EUROPEAN
ACADEMY OF LEGAL THEORY BRUSSELS
MASTERS PAPER
LL.M. (LEGAL THEORY)
2002-2003
Affirmative Action Programme:
A Comparative Study of India and U.S.
SUPERVISED BY PRESENTED
BY
Prof. John Bell Amarpal Singh
Professor of Law
Lecturer in law
University of Cambridge
Government College
United Kingdom
Bikaner, India
amarpal_singh@rediffmail.com
Chapter- II : Equality Justice and Affirmative
Action :
13
Theoretical Considerations.
2.1.Liberal
Theory of Equality : John Rawls.
2.2.Libertarian
Perspective.
2.3.Marxian
Radicalism.
2.4.Various
Strands of Socialist Thinkers.
4.1.Merit
Argument.
4.2.Rights
Argument.
4.3.Efficiency
Argument.
4.4.Balkanisation
Argument.
Chapter- III : Indian
Panorama of Equality and Justice : 36
Ancient and Modern.
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.
Chapter- IV : Equality and Affirmative Action in
U.S.A.
65
Chapter- V : Evaluations and
Conclusions.
79
List of Cases.
91
Bibliography
93
List of Articles from Journals and Periodicals
95
CHAPTER - I
Introduction
1. Equality and Its Bases.
Equality
and Justice are the words of passion and power.[1]
They were the watchwords of the French Revolution, resulting in the declaration
of the rights of men, issued by the National Assembly of France after the fall
of Bastille, Òmen are born equal and always continue free and equal in respect
of their rightsÓ[2] American
declaration of Independence too declared in the same vien that Òwe hold these truths to be self evident that all men are created equal. It has also been the
distinguishing characteristic of modern civilization that Equality should not
merely be an abstract ideal but a politically aggressive idea. 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.[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.
Justice
is integrally related to equality. In fact Aristotle treated justice as synonym
of equality. In his Nichomchean Ethics, he wrote Justice is equality as all men believe it to be quite apart
from any argument. Indeed in Greek the word Equality means justice. Equality
and justice are synonymous. To be just is to be equal and to be unjust is to be
unequal. [4]Aristotle
talks of two kinds of Justice, distributive justice and corrective justice.
Distributive justice is manifested in the distribution of the honour, money,
and other things which fall to be divided among those who have a share in them.
He then identifies justice in this area as some sort of equality among those who have to share
the common grounds of honour.
Justice
is an ethical standard of virtue in social and public relationships and
consists in observance of rules of equality. According to Aristotle equality
means that things that are alike should be treated alike and things that
are unalike should be treated
unalike. Injustice arises when equals are treated unequally and also when
unequals are treated equally.[5]
Indeed everybody is not equal by nature, attainment or circumstances.
The varying needs of different
people coming from different classes or sections of population require differentiated and
separate treatment. Prof. HLA Hart calls this precept as a central element of
the idea of justice.[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.[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. 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. Either one talks of the segregation of blacks in United States
of America, aparthied system of South Africa, or the plight of low caste people
of India, all have suffered the same fate, i.e. exploited and deprived for the
reasons beyond their control.
Affirmative
action programme are the tools to remove the present and continuing effects of
past discrimination, 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. 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,
educational and economic backwardness.[8]
It also addresses the infirmities caused due to purposeful societal
discrimination and attacks the perpetuation of such injustices.
2. Indian Case for Correcting Injustices.
It
is with the lofty aim of alleviating the sufferings of the underprivileged and exploited sections of
Indian society, and for reconstruction and transformation of hierarchical
society emphasizing inequality, into a modern egalitarian society based on individual achievement and equal opportunity for all that the
protective discrimination programme was devised under Indian Constitution. 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. These changes were in
fact the culmination of a long drawn process of transformation in the
traditional pattern of caste ridden society. Two factors basically worked as
catalysts in the process, the indigenous reforms and western influences.[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. 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. 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, 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.[10]
A doctrinaire insistence on formal equality would in fact aggravate and
perpetuate inequality. Independent India , therefore has embraced equality as the cardinal value against the
background of elaborate valued and clearly perceived inequalities.[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 were relevant
differences among men, 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 .Constitutionally
authorised preferences and protective discrimination created a lot of
confusion and conflicts leading to heated debates, court cases street violence
and social unrest.[12]
India
the biggest democratic system of the world, with a thousand million plus
population and mindboggling variety, a system which boasts of more than
5000 years history and continued
civilization and a hoary past, now mired in the under-development and medieval hierarchical social order, but
raring to rise into a economic powerhouse of the world with convincing democratic credentials, have been
experimenting with the protective discrimination programmes of unprecedented
variety. Reservations in jobs, in educational institutions, legislatures and in
the local self governing institutions, better known as Panchayati Raj Institutions
for scheduled castes, scheduled tribes, other backward classes and now women
has been a grand experiment by any standard. It may also be noted that
scheduled castes, scheduled tribes and other backward classes are a whole
cluster of thousands of castes spread over length and breadth of the country.
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.
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. As has been seen that India had a hoary past and an
elaborate socio-political system. Its civilization is very old and has to its credit many distinction. As A.L.
Basham puts it, Òthe ancient civilization
of India differes from those of Egypt , Mesopotamia and Greece, in
that its traditions have been
preserved without a break down to the present day. Until the advent of the
archaeologists, the peasant of Egypt or Iraq had no knowledge of the culture of
his forefathers, 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. On the other hand, the earliest Europeans to visit India found a
culture fully conscious of its own antiquity Ð a culture which indeed exaggerated
that antiquity, and claimed not to have fundamentally changed for many
thousands of years. To this day
legends known to the humblest Indian recall the names of shadowy chieftains who
lived nearly a thousands years before Christ, and the orthodox Brahman in his
daily worship repeats hymns composed even earlier. India has É. In fact the
oldest continuous cultural traditions of the world.Ó[13]
The
interesting thing to be noted in this context is that though at the social
plain, one can feel that continuity of the past so distinctly, however on
political plain, India has had a complete break with its
institutional practices with the advent of British era. With the charter of Queen Elizabeth of
1600 authorising East India company to trade with the countries of the east and
far east, 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. Starting with the Charter of
1726 to the Government of India Act 1935, the colonial administration had more
than two scores of major reform
packages involving legislative, Administrative, Judicial and Land reforms. When
finally the Independence of India Act 1947 was passed , The British
Parliamentary system of government was the only system with which the then
generation of political leaders was reasonably familiar with. And therefore
came into effect the Republican Constitution of India 1950 with Parliamentary
form of Government and common Law system of British vintage. That system has
continued to this day and is so
well grounded in Indian soil today. How the western Political Institutions and
concepts , wrapped in local indigenous philosophy have functioned is a matter beyond the scope of this study. 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.
What is sought to be attempted here is
to have a glimpse of the Ancient Model of IndiaÕs socio-political governance
reflecting on the concept of
equality and justice and then present
modern IndiaÕs march towards egalitarianism with the help of the tools , concepts and institutions first experimented and developed in the western soil and sought to be
implemented in Indian situations. This might provide a better insight into the
issues and problems modern India is grappling with, 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, while wholly lacking in economic, technological and organizational
resources of the latter.[14]
Historically
speaking, 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. 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.
In
India, the legacy of a long tradition, 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. The social system
is undergoing profound change and has entered a process of continuous fluidity
and fragmentation.[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.
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, without at the same time destroying its age old traditions and
diversities,[16]
understanding these traditions and diversities might provide fresh insights
into the intractable problems of
the modernising tendencies. That
is why an attempt is made to have
an understanding of the ancient
paradigm of IndiaÕs socio-political governance and then present the perspective of modernising
institutions of socio-political system.
3. Competing Claims.
There
have been lot of confusion, about protective discrimination in post
Ðindependent India. There are competing claims and demands from equally
competing equalities, emotions run high, and the entire socio-political system
appears to be divided into two, pro and anti type of opposite camps, nobody
listening to the sane advice from the other side. 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;
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 ;[17]
that, by affording opportunities for participation and well being, preferences
promote feelings of belongingness and loyalty among the beneficiaries, thereby
promoting the social and political integration of these groups into Indian
society; 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;
that preferences permit forms of action that promote pride, self respect, sense
of achievement and personal efficacy that enable the beneficiaries to
contribute to national development as willing partners; that by broadening
opportunities, preferences stimulate the acquisition of skill and resources
needed to compete successfully in open competition, that by cultivating
talents, providing opportunities and incentives and promoting their awareness and self consciousness, preferences enhance the
capacity of the beneficiary groups to undertake organised collective
action; that by increasing the
visibility of the beneficiary groups, promoting their placement in strategic locations and emphasising the
national commitment to remedy their conditions, preferences serve as a stimulus
and catalyst of enlarged efforts for their uplift and inclusion; that
preferences compensate for and
help to offset the accumulated disablement resulting from past deprivations of
advantages and opportunities; that by reducing tangible disparities among
groups and directing attention to mundane rather than ritual development of a
secular society and that, preferences contribute to national development by providing incentives, opportunities and resources to
utilise neglected talent.[18]
The
other side does not have dearth of arguments too, they would argue that the
resources are enjoyed by a small group of the intended beneficiaries and do not
benefit the groups as a whole ;[19]
that by creating new interests which diverge from those of the beneficiaries,
preferences obstruct accurate representation of their interests; that by
emphasising the separateness of these groups, preferences reduce their opportunities for common participation;
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; that preferences subject these groups to manipulation by others,
aggravate their dependency and undermine their sense of dignity, pride, self
sufficiency and personal efficacy; [20]that
preferences provide artificial protection which blunts the development and
skills and resources needed to succeed without them; that by making them
dependent, blunting the development of talent, undermining self respect,
preferences lessen the capacity for organised effort on their own behalf; that by projecting an image
of comprehensive governmental
protection and preferment, preferences stir the resentment of others,[21]
allaying their concern and undermining initiative for measures on behalf of the
beneficiary groups; that these arrangements created vested interests in their continuation, while
discouraging the development of skills, resources and attitudes that would enable the beneficiaries to prosper
without special treatment; that preferences place an unfair handicap on
individuals who are deprived of opportunities they deserve on merit; that by
recognising and stimulating group identity, preferences perpetuate invidious
distinctions,[22] thereby
undermining secularism and that preferences impede development by
misallocation of resources lowering
of morale and incentive and waste of talent.
4. American Paradigm.
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.[23] 14th amendment of U. S.
Constitution provides that ÒAll persons born or naturalised in U.S. and subject to the jurisdiction thereof
are citizens of U.S. and the states where in they reside.[24]
No state shall make or enforce any law which shall abridge the privilege and
immunities of citizens of U.S. nor shall any state deprive any person of life; liberty
or property without due process of laws nor deny to any person within its
jurisdiction the equal protection of laws. 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 , oppression or inequality on the
other.[25]
Despite
the existence of equal protection clause under 14th amendment racial
discrimination had continued in the U.S. up to mid 20th century.
However this discrepancy between its ideals and its treatment of Black people
began to be corrected around 1950s and most notably in 1954. United States
Supreme Court came strongly against the segregation of blacks in schools. The
first step as reflected in the decisions of the Courts and Civil Rights laws of
the Congress; merely removed the legal and quasi legal forms of racial
discrimination. These actions while not producing true equality or even of
opportunity socially dictated the next step; positive use of governmental power
to create possibility of real equality. The decision in Brown[26]
overturning Plessey (equal but separate doctrine) foretold that all publicly enforced sponsored or supported racial
discrimination was beyond the pale, that equal protection was not a bounty but
was their Birthright.
A
decade after Brown, Congress joined the movement to eliminate segregation by
enacting Civil Rights Act in 1964, 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. 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.
It
may be worth noting that in view of article 15 (4) and 16 (4) in Indian Constitution, the Bakke
type decision and the debate that
took place in its wake is not that legally
relevant for Indian jurists, judges and policy makers as the group or community
oriented concept of equality is in harmony with the Indian Constitution and
culture, however the heated debates , 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 IndiaÕs protective action programme, which is far more difficult to handle
in view of IndiaÕs varied and many
hued culture. Reference may be made to Justice Krishna IyerÕs pronouncements in Thomas decision[27]
that repairing the handicaps of
the blacks in America was comparable
to the problems of
repairing the handicaps of the
Harijans in India. Similarly justice Iyer referred to Schlesinger v. Ballard
Case[28]
as illustrative of the high judicial bunch in understanding the classificatory
clue to promotion of employment of equality. In fact the U.S. Supreme Court
upheld a classification in favour
of a female Naval Officer by
applying rational basis test in this case, which was much like the reasonable
basis classification being employed by the Indian Supreme Court right since the
Gopalan and Champakam Dorairajan cases.
A
rider may be added here, lest the context be forgotten, that though the
affirmative action programmes for the historical injustices in India is roughly comparable with the remedial measures being adopted in U.S. for the blacks and
Negroes, but the context of Ò historical injusticesÓ 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. This particular issue shall be taken up in chapter III in a bit
elaborate manner, suffice is to say here that the dynamic of civilizational
context is absolutely different in Indian Context from that of America.
A word about French Constitutional
scheme of protective discrimination would not be out of place here. French
equivalent of affirmative action programme in United States or in India is the
concept of Fraternity , which is directed towards helping the poor and the
disadvantaged members of society. The declaration of 1793 in article 21 states
that public assistance is a sacred
debt. Society owed its existence to those who are unable to work. Girondin
proposal for rights contained the statement that equality consists in everyone being able to enjoy the same rights. Though the
system of equality that has been followed in the fifth Republic has served the
French mentality so well, peculiar and contradictory as it is, however the kind
of place equality enjoys in the American and Indian system is unlikely to be
achieved in French system, either in socio-political debates or constitutional
litigation in Conseil Constitutionnel.
5. Scheme of
The Study.
The
present study aims at looking at three systems, India, United States of America
and France, as to how do they work
upon the affirmative action programmes, which evidently are the compensatory
measures for historical
deprivations and come out with some comparative conclusions of the
similarities and differences amongst them. It must however be noted that Affirmative Action Programme(as they are called in
U.S.) or the Protective Discrimination Programmes (as they are called in India)
are some of the schemes of preferences, whose success does not depend merely
upon the existence of provisions of preferences, rahter their success depends upon the careful
planning , designing and provision for sufficient resources, 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.[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.
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. It has been noted above that equality
is not the fact of life. Nature
has not willed that all men should be equal . Men differ obviously and
profoundly in almost every respect. They are as G.D.H. Cole put it, ÒRadically
unlike in strength and physical powers, in mental ability and creative
equality, in both the capacity and willingness to serve the community and
perhaps most radically of all in power of imagination.[30]
Nature has not created all men equal. Absolute equality or what some would call
it natural equality is an impossible ideal . Nature has itself created such
vital differences between men that no power can make and
keep them equal. No one with the eyes in his head can or will deny the
existence of these human differences.Inequality is an inescapable natural fact
and it has to be accepted by society. Nature has endowed men with different
with different capacities in satisfying them, equality in its popular sense is
inconceivable. Equality does not
in any case imply identity of
reward for efforts. Therefore saying that men are born equal and always
continue to be so, is an erroneous a statement as saying that the surface of the earth is level.[31]
In
such a situation picking up this or that group for compensatory discrimination
itself is a difficult task. The quest for identifying the relevant criterion for differantiation have
occupied philosophers for centuries . Starting from Plato and Aristotle to Hart
and Dworkin, philosophers have sought to provide justificatory arguments for
classifying people or a section of population for special treatment. 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.
With this purpose and perspective in mind the second chapter, following
this introductory chapter, shall attempt a theoritical insight into the concept of equality
justice and affirmative action programme, better known as Reservation system in
India. Chapter III shall present
the panoramic view of Ancient
IndiaÕs socio-political governance and how the concepts of equality, justice
and affirmative action programmes or protective discrimination have been viewed
in India. As has been indicated
above , this chapter shall also cover the present model of socio-political
governance under Indian constitution reflecting on the concept of equality and
justice. Chapter IV shall have a brief overview of the equality and affirmative
action programme of United States of America, and France. And chapter V shall attempt to present a comparative evaluation of Indian, and American preferential treatment of historically
disadvantaged sections of population.
XXXXXXXXXXX
CHAPTER- II
Equality, Justice and
Affirmative Action :
Theoritical considerations.
1. Nature of Equality.
The expression ÒEqualityÓ is incapable of a single definition, 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, rather others, as of overriding importance-equality before law, equality of basic human rights, economic equality or equality of consideration for all persons or equality of opportunity.[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. For example most schools of thought in fact cater to the view that complete equality would be difficult to come by. 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, viz, that an egalitarian distribution is a necessary pre-requisite to any meaningful freedom and development.[33]
It
is no doubt frequently asserted that all men are born equal, but there is no
unanimity as regards the common attributes which makes them equal.[34]
According to Bernard Williams, Òthe idea of Equality is used both in a statement of fact or what purport
to be a statement of fact- that
men are equal, and in a statement of political principles, or aims that
men should be equal,[35]
as at present they are not. It is
in this later sense that the notion of equality belongs to the sphere
of values. It is in moral
judgements to the effect that equality is a good, that it ought in some cases
to exist, and that this is so in spite of the obvious ways in which men are unequal in strength, talent
and intellect. Nor have most philosophers wanted an equality which is total.
The claim that men are equal is a claim that in fundamental respects, regardless
of obvious differences between one man and another, all men deserve to be given
certain kinds of treatment. They have a right to certain kinds of equal
treatment in crucial aspects of their lives, though not in all.[36]
Indeed there are few words that admit of such
wide meanings and interpretations as that of equality. Economists usually focus
on the notion of equality of income, wealth or some measure of individual well
being, such as utility. However Walzer (1973) has emphasized, at a wider level
one may legitimately be concerned with the notion of equality involving not
just wealth and power, but
honour, work, education and
free time[37]. All of
these refer to what we might call equality, or inequality, of individual circumstances. But at the level of
societal arrangements, there are important notions of equality of opportunity,
equality before law and equality of treatment, to name a few of the commonly
examined concepts.
Rashdall
advances the principle, that every human being is of equal intrinsic value and
is, therefore, entitled to equal
respects as an exact expression of the Christian ideal of brotherhood. He,
however, 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.[38]
He takes it to be self-evident, to be an analytical judgment, to say that what
is recognized as being of value in one person must be recognized as being of
same value in another, provided it is really the same thing that is implied in
the assertion that it has value. Such axioms, he agrees, cannot of themselves
solve practical moral problems. They are purely formal but they do offer
guidelines on how to distribute the good once its nature is known. What is
implied by the principle of equal respect for all persons is impartiality in
the treatment of all men; it rules out inequality, or rather, arbitrary
inequality, inequality not justified by the requirements of social well being,
or some other general and rational principle in the treatment of individuals.
No man he asserts, has a right to anything unconditionally except the right to
be equally considered. The rights of man are all ultimately resolvable into the
one supreme and unconditional right Ðthe right to consideration.[39]
This
meaning of of equality was clearly
identified by Immanuel Kant in ÒFundamentals of Principles of the Metaphysics of MoralsÓ, when he
distinguished the possession of
value from the possession of dignity. Whatever has a value can be replaced by
something else which is equivalent in value; whatever, on the other hand, is
above all value, and, therefore, admits of no equivalent, has a dignity. So,
commodities that satisfy human wants and needs have a market value. What
appeals to human taste, even in the absence of need, may be said to have
emotional or imaginative value. But some things in the world cannot be measured
on any scale of values. They are invaluable, priceless, and that is the case
with every human being. One may be better cook than another or a better student
or legislator, and in the restricted sphere of conduct we may and often must
appraise their relative merit. But as men they do not have relative merit, for
what has relative merit may, in so far as it has that merit, be replaced by
another like entity with equal or greater merit. A good cook may be replaced by
a better cook; a good legislator by one at least equal in talent for
legislation. But as a person, no
human being can possibly be
replaced by another. What entitles him to a place in this sphere is simply his having human
dignity; it is a quality intrinsic to his being. This very thought is expressed
in the now commonplace remark that the dignity of every human being must be
respected. Dignity here connotes not pride or manner, but the intrinsic
worthiness or every human being, without regard to his intelligence, skills,
talents, rank, property or beliefs. He who affirms the principle of human
dignity in this sense respects equality.[40]
Analysing
RawlsÕ theory of Justice, Dworkin
reaches the same conclusion, that Òjustice as fariness rests on the assumption
of a natural right of all men and women to equality of concern and respect, 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. He goes on to say that Ò
RawlsÕ most basic assumption is not that men have a right to certain liberties
that Locke or Mill thought important, but that they have a right to equal
respect and concern in the design of political institutions. Thus according to
Dworkin, Right to equal concern
and respect is the most fundamental right of all the rights. This right according
to Rawls is owed to human beings
as moral persons, and follows from the moral personality that disntinguishes
humans from animals. Thus human beings already possessed this right when they
agreed on the two principles of justice enunciated by Rawls. This right is more
abstract than the standard conceptions of equality that distinguish different
political theories . It permits arguments that this more basic right requires one or another of these
conceptions as a derivative right or goal.[41]
Looking
at the concept of Equality from a common manÕs point of view, the principle of
equality was originally, a common manÕs
protest against the gross inequalities created by the superior claims of
the nobility in ancient societies. The idea of equality has, therefore grown
out of the idea of privileges.[42]
These inequalities and privileges persists even in our own times. Inequality,
as such, refers to the conditions created in society by a limited number of
privileged people, who have always dominated the State and used its power for
their own purpose.[43]
This class of vested interests makes the fulfilment of their private desires
the criterion of the public good. Equality means, first of all, that special privileges of all kinds should
be abolished. All barriers of birth, wealth, sex, caste, creed and colour should
be removed so that no one suffers from any kind of social or political
disability.
There
should be, in short, 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 means that
I am entitled to the enjoyment of all those social and political
privileges to which others are entitled. My vote in the election of the
representatives is as valuable and potential as that of any other. I can also
become the recipient of any office of the State for which I may be eligible.[44]
To refuse any man access to authority is a complete denial of his freedom,
because, unless I enjoy the same access to power as others, I live in am
atmosphere of contingent frustration. One who lives in an atmosphere of
frustration has neither any inspiration in life nor any incentive for it. He
accepts his place in society. He accepts his place in society, which accident
of birth has given him, as a permanent condition of his life. It is in this way
that the faculty of creativeness
is lost and men or a class of men
become Òanimate toolsÓ which Aristotle described as the characteristic
of the natural slave. There can be no equality in a society where a few are
masters and rest are slaves. The principles of equality, accordingly, means
that whatever conditions are guaranteed to me, in the form of rights, shall
also in the same measure, be guaranteed to others and that whatever rights are
given to others shall also be given to me. The chief characteristic of a right is its equalitarian basis.
1. Theories of Equality.
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, but there is surprising unanimity in their line of thinking and almost all of them come to some common conclusions ending up in talking, in terms of justice to all individuals and groups, though they will have different perspectives in their conceptions of justice. 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. But before we talk of the common conclusions and common concerns amongst philosophers of various hues, letÕs have a look at their viewpoints about equality. We shall cover, liberals, libertarians, Fabians and Marxists.
1.1
Liberal Theory
of Equality : John Rawls.
Strictly
speaking, there is nothing like a liberal theory of Equality. However, since
liberalism has been a very amorphous concept, dynamic and changeable, implying
almost a compelling passion for liberty, representing a system of ideas, that
aim at the realisation of pluralists society and diversity in politics,
economics religion and cultural life, 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.. Though we find an espousal for equality of all in Locke, Bentham, Mill and
Greene, however in modern times the most forceful argument has been developed
by John Rawls in his seminal work,
ÒA theory of JusticeÓ.[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,
they might themselves occupy. Rawls makes a persuasive case for a
conception of justice that would
improve the chances of the least advantaged members of society. In other words
inequality is only justified if it
results in the poor being better off in the social dispensation. Rawls calls
this Òthe difference principleÓ. Since the Rawlsian prescription is geared
exclusively towards improving the lot of the worst off members of society, the
rule would obviously be more
egalitarian than the Utilitarian principle. More specifically, on the
question of bringing about greater equalities.[46]
Rawls has identified what he had called
primary social goods. There are things that every rational man is presumed to
want including rights and
liberties, opportunities, powers, income and wealth, and the basis of self respect. 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. Having ensured basic
liberties, Rawls is for ensuring an equitable distribution of primary goods .
According to him, primary goods are the ncessary means, whatever may be oneÕs system of ends. He observes;
ÒGreater intelligence, wealth and opportunity for example, allow a person to
achieve ends he could not rationally comtemplate otherwise.[47]
He then goes on to propose an
index of primary social goods, though he concedes that the attempt would face
several difficulties.
Rawls
is very clear in his approach that undeserved inequalities call for redress and
since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow
compensated for.[48] The
difference principle holds that in
order to treat all persons equally, society must give more attention to those
with fewer native assets and those born into the less favourable social
positions. The idea is to redress the bias in the direction of equality,
maintains Rawls.
It
must be noted that Rawls thinks
of primary social goods as
embodying one of the two conceptions of equality, and there is another, more
fundamental one. Rawls writes; Òsome writers have distinguished between
equality as it is invoked in connection with the distribution of certain goods,
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. 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. But equality of the second kind is
fundamentalÓ. [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. 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, which is owed to human beings as moral persons.
The
two conceptions of equality proposed by Rawls together make a case for the
elimination of substantial inequalities, but they would not lead to elimination
of all inequalities. 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.
Amartya
Sen in a incisive piece, ÒEquality of whatÓ [50]criticises Rawls , on the ground that the notion
of Primary goods, is ÒFetishistÓ.
ÒRawls takes primary goods as the embodiment of advantages, rather than
taking advantages to be a relationship between persons and goods.Ó
Utilitarianism or more
particularly welfarism does not have this fetishism, since utilities are
reflections of one type of relation between persons and goods. For example, income and wealth are not valued
under utilitarianism as physical units, but in terms of their capacity to
create human happiness or to satisfy human desires. Even if utility is not
thought to be the right focus for
the person-goods relationship, to have an entirely goods oriented framework
provides a peculiar way of judging advantages.
Futher,
Sen emphasises that the primary goods approach seems to take little note of the diversity of human beings.[51]
In the context of assessing utilitarian equality, it was argued that if people
were fundamentally similar in terms of utility functions, then the utitlitarian
concerns with maximising the sum total of utilities would push us simultaneously
also in the direction of equality of utility levels. Thus utilitarianism could
be rendered vastly more attractive if people really were similar. A
corresponding remark can be made about the Rawlsian difference principle. If
people were basically very similar then an index of primary goods might be
quite a good way of judging advantage. But, in fact, people seem to have very
different needs varying with health, longevity, climatic conditions, location,
work conditions, temperament and even body size (affecting food and clothing
requirements). So what is involved is not merely ignoring a few hard cases, but
overlooking very widespread and real differences. Judging advantage purely in
terms of primary goods leads to
partially blind morality.
1.2.
Libertarian Perspective.
Libertarian perspective on equality has been articulated in the most forceful manner by F.A.Hayek,[52] Friedman, [53]Nozick [54]and Letwin[55] amongst others. F.A.Hayek, in his substantial work Òthe constitution of libertyÓ emphatically states, that as a statement of fact it is just not true that all men are born equal. We may continue to use this hallowed phrase to express the ideal that legally and morally all men ought to be treated alike. But if we want to understand what this ideal of equality can or should mean, the first requirements is that we free ourselves from the belief in factual equality. From this he went on to argue that if we treat equally, all individuals, who are unequal, the result must be inequality in their actual position.[56] Therefore the only way to place them in an equal position would be to treat them differently. Hayek therefore goes on to conclude that equality before the law and material equality amongst individuals are in necessary conflict with each other, and we can achieve either the one or the other, but not both at the same time. Since equality before the law is regarded as a necessary prerequisite of a free society, this would automatically result in material inequality.
Hayek
further argues that the boundless variety of human nature, the wide range of
differences, in individual capacities and potentialities is one of the most
distinctive facts about the human species. Its evolution has made it probably
the most variable amongst all kinds of creatures. I has been well said that
biology, with variability as its cornerstone, confers on every human individual
a unique set of attributes which give him a dignity he could not otherwise
possess. All this goes on to suggest that the quest for perfect equality in individual circumstances is bound to
prove fruitless.
It
is one thing to acknowledge that in-equality is a consequences of the natural
order, but it is quite another to make a case for non intervention. 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. Our
objection is against all attempts to impress upon society a deliberately chosen
pattern of distribution, whether it be an order of equality or of inequality.
Essentially the same kind of view
is held by other libertarians, such as Friedman, Nozick and Letwin.
Letwin
for example argues that any egalitarian policy would necessarily be internally
contradictory.[57] That is, if
a government were to equalise any one material dimension of life, such as
income, wealth, consumption, or work effort, it would necessarily and
inevitably create inequality in one or more of he other dimensions. Suppose for
example government sets out to equalise pay by assuring each worker the same
wage rate per hour of work done. This would imply that if workers were allowed
freedom to choose the number of hours of work per annum, then some would earn
more than others per annum. 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, because of ill health, work
stoppage, or whatever reason, then their hourly wages would be unequal .
Further, if they worked different number of years during their lives, owing to
differences in health, opportunity, or other objective conditions, then their
lifetime incomes would be unequal. Thus any rule imposing equality on pay per
hour, year of life would necessarily impose inequality on pay realised
during any other interval of time.
And
this is not all. Suppose that each worker were paid the same annual wage. This
will not tell us anything about the persons, expenditure, savings and
investment etc. With different saving propensities, equal annual pay may even
within one lifetime produce remarkable inequality of wealth. Further if inheritance is permitted
then inequality of wealth and income may considerably intensify over time. Most
importantly, individuals would in general, respond in different ways to perform
risky activities than would involve greater disutility. If individuals were forced to perform these
activities, in a regime of uniform pay, then this would , in general entail
differences in individual well being. 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, it is worth noting that libertarians usually
take the position that it is undesirable. The argument is that an equal world
is inimical to growth and incentives[58].
Hayek writes, ÒThe 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. Progress at such a fast
rate cannot proceed on a uniform
front but must take place in echelon fashion, with some far ahead of the rest.Ó[59]
After all, 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. In a similar context,
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.
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, among other related notions. It is presumed that each of
these notions of equality goes towards enhancing individual freedom. 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. 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. This is to
be contrasted with the notion of equality of outcome, or equality of results
which would require action by the state to correct free market outcomes. Harry
Jhonsom ( 1975) has observed, Òto be consistent with both the principle of
individual freedom and personal
responsibility and the requirements of efficient economic organisation, policy
should concentrate on providing equality of opportunity rather than equality of
measured income ex post results.
Equality
before law is equally important and necessary requirement for libertarian
thinkers. The problem, however is that
that in order to ensure any meaningful application of the above two
principles, one must ensure a substantial measure of equality in individual
circumstance, particularly economic equality. 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. Since one cannot ensure complete
equality in individual circumstances one would have to conclude that equality
in societal rules, viz, equality of opportunity and equality before the law can
only be strictly valid as a slogan.
1.3.
Marxian Radicalism.
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. But
he was not merely questioning the practicability of this goal of
equality; he was in fact not even willing to acknowledge this as an ideal worth
striving for. Since Marx was fundamentally against oppression in any form one
would have expected him to argue for an egalitarian world. But in fact there are no explicit espousals of the notion of equality in MarxÕs
writings. 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. It is for this reason
that Heller (1988) has observed that ÒEgalitarianism has
no bitterer enemy than Marx himselfÓ[60].
Marx
presupposes a society wherein Ò
the instrument of labour are
common property and the total labour is cooperatively regulated, and where the
proceeds of labour belong undiminished with equal right to all members of
society. 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.
According
to Marx, in the first phase of the communist system, Òthe right of the
producers is proportional to the
labour they supply, the equality consists in the fact that measurement is made
with an equal standard labour. Yet because one man is superior to another
physically or mentally and so supplies more labour at the same time, or can
labour for a longer time, this Òequal right is an unequal right for inequal
labour.Ó[61] Thus
distribution in the first phase of communism will inevitably be an unequal
distribution, and will be so precisely because it is a distribution according
to equal right. He goes on to say, one worker is married, another not; one has
more children than another and so on and so forth. Thus, with an equal
performance of labour, and hence an equal share in the social consumption fund,
one will in fact receive more than another , one will be richer than another,
and so on. To avoid all these defects, right instead of being equal would have
to be unequal.[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 lifeÕs principal need. Marx goes on to say, Òin a higher phase
of communist society, after the enslaving subordination of the individual to
the division of labour, and therewith also the antithesis between mental and
physical labour, has vanished; after
labour has become not only
a means of life but lifeÕs prime want; 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- only then can the narrow
horizon of bourgeois right be crossed in its entirety and society inscribes on
its banners: Òfrom each according to his ability to each according to his needs.Ó[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. According to him even the higher phase of communist
society is not a world that is
characterised by equality in
individual circumstances. In fact precisely the opposite is the case.
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. 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. Thus equality of status is established by doing away
with the notion of private ownership
of holdings altogether.
Thus
it would be seen that while Marx
is indifferent to the elimination of all social and political inequality, he is
for abolition of class distinctions, which for him is of fundamental
importance. It is when the class distinctions are eliminated that social and political inequality arising
from them would disappear of itself. 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. He says that with the abolition of classes
in socialist society all social and political inequality arising from them
would disappear. Implicit in this idea is his belief that even though the rewards of the producers are not
going to be exactly equal, 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, for these needs grow considerably in
comparison with present day society
and it grows in proportion as the new society develops.
1.4.
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, the
socialist thinkers and
writers of the past century
and a half are among the strongest proponents of equality . Marxists have always taken a drastic redistribution for granted. The
socialist thinkers though less radical in their approach, have advocated the
redistribution of income and wealth
by one device or another. This has been for them the central issue of
public policy and to avoid this was to avoid all issues.[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.
Therefore we shall have a brief
look on the views of the Fabians ,
and social democrats.
These
were a small groups of intellectuals, inheritors of the philosophical
traditions of Bentham and Mill.
They were active and resourceful paphleteers and wrote on all manner of social, political and
economic issues. 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, health and other merit
goods. The original Fabian thinkers like Webb and Shaw, all shared MarxÕs moral
outrage at the evils of capitalism, particularly as a system that engenders
abject poverty, inhuman working conditions, and stark inequalities of income,
wealth and social status. They were all convinced that the institution of private property was the principal,
if not the sole cause of the malaise, yet paradoxically, 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. Most of them did not share MarxÕs belief that capitalism must inevitably collapse though they
were careful to acknowledge that the system is prone to periodic slumps. 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.
Socialism
for most of these thinkers meant nationalisation, municipalisation and
government regulation of industry. Shaw, however, extolled the virtues of individual freedom and competition,
and believed these to be as important as the freedom of speech or the freedom
of the press. By the 1930s they came to accept the necessity of mixed economy.
R.H.Tawney, in his classic work,
ÒEqualityÓ[65] made a
forceful presentation of his equalitarian ideology. His concern was with
fundamental equalities before the law, the removal of collectively imposed
social and economic inequalities, and the equalisation of opportunities for all
to secure certain basic goods and services. He emphasised the crucial role of education to make children Òcapable
of freedom and more capable of fulfilling their personal differencesÓ,[66]
and make them communicate with each other at an equal level. He believed that
it was the individuality in each person that ought to be emphasised and
encouraged, Òwithout regard to the
vulgar irrelevancies of class and incomeÓ. Offering one of the most perceptive
critiques of the British class system, Tawney lamented that the twin pillars of
inequality, viz, inherited wealth and public goods, that stood in the way of
ensuring equality of opportunity were BritainÕs hereditary curse, and the
source of most of its afflictions. Tawney made a powerful case for tailoring
economic and social organisations to establish institutions to meet common
needs, such as education, which would be a source of common enlightenment and
common enjoyment.
As
such a strong case for social justice was made out by Tawney, and this was the
central issue to the hardcore thinking of Fabian and Social democrats.
However, they could not extricate
themselves from allowing the
primacy of private ownership of the means of production to continue. 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.[67]
2.
Common Grounds of Distributive
Justice.
The
above discussion brings us into a position where we can draw some conclusions.
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. While Rawls makes a substantial case for reducing
inequalities, 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. Libertarians on the other hand are clear in their minds that equality in individual
circumstances is not even desirable, for it would thwart incentives and growth.
They do talk about equality of opportunity and equality before law, but
equality in the sense commonly understood is clearly undesirable for them. The
argument is that an equal world is
inimical to growth and incentives. The rapid economic advance that we have come to expect seems in a large
measure to be a result of É the unequal circumstances. MarxÕs view on
equality it turns out, that he is
rather indifferent towards the idea of equality of individual circumstances, in
the sense of equal distribution of commodities and income. He would rather
prefer to eliminate the class distinctions, so that oppression and exploitation may be eliminated and all
social and political inequality arising from them would disappear by itself. In
the first phase of communism he envisages inequality emerging from the equal
right to the labour, 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. 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, believing that some form of inequality is not only desirable for the
purpose of long term growth, but also is part of the natural order of things.
Secondly
almost all the thinkers make out a case for ensuring justice,(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. 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. In fact Rawlsian justice
is geared exclusively towards improving the lot of worst off members of
society. Rawls talks of ensuring equality of opportunity, because it ensures,
that fate of the people is determined by their choices and not by their circumstances.
ÒMy aim is to regulate inequalities that affect peopleÕs life chances and not
the inequalities that arise from the peopleÕs life choicesÓ, which are individualÕs own responsibility. Rawls seeks to ensure a scheme of things what Prof Dworkin calls
Òendowment insensitive and ambition sensitiveÓ[68]
dispensation. 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.
Libertarian
thinkers like Hayek and Friedman have recognised the difficulty of ensuring
equality of individual circumstances, but at the same time they have argued for
elimination of moral and political inequality. They have centred their
discussion on ensuring ÒEquality of opportunity and equality before lawÓ. The presupposition is that this ensures
justice and enhances individual freedom. 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. For Marx, a just system is the one, wherein all class
distinctions have been abolished. It is not necessarily a system where equality
prevails for ÒEqualityÓ is fundamentally a bourgeois idea, having no place in
the statement of working class demands and objectives. Since State is an
instrument, used by dominant class to suppress and exploit the dependant class,
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.
Social
Democrats are in favour of ensuring a system (A Just one), wherein substantial
measure of equality is guaranteed without doing away with the basic framework
of market capitalism. R.H Tawney [69]
is in favour of substantial redistribution and in particular public provision
for education, for all children to make them capable of freedom and more
capable of fulfilling their
personal differences and enlargement of personal liberties. Through the discovery
by each individual of his own and his neighbourÕs endowment. Amartya Sen
emphasises this aspect in his advocacy of ÒBasic Capability EqualityÓ. He says
that Òindividual claims are not to be
assessed in terms of the resources or primary goods, persons respectively hold, but in terms
of the freedom they enjoy to choose between different ways of living that they
can have reason to valueÓ Public action to improve nutritional intake, life
expectancy and reduce morbidity
and infant mortality so as to enhance individuals capabilities has received
froceful support in the writings of Amartya Sen.[70]
Under
Indian Constitution, what is laid down in terms of equality is a twin concept,
i.e. equality before law and equal protection of laws, while the former ensures
equal status to everybody, from a
prince to a pauper, the later concept, 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
idea of equality under Indian Constitution, thus, emphasizes on the protective aspect of equality
which has been the prime concern of most of the philosophers we have talked
about above.
This
discussion brings us to the idea of Distributive Justice. Whatever the
differences of opinions amongst the philosophers of various hues, on the
conception of justice and equality, they would all suggest some or the other
kind of distributive mechanism to shape the society in the mould of their
philosophy. In fact the idea of distributive justice is not something new.
Aristotle himself talked about distributive justice. According to him justice
is of two types-complete justice and particular justice. Particular justice, 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. It thus looks beyond equality in purely formal sense. Its central concern
is to redress the bias of contingecies in the direction of equality. In a
democratic world it is taken for granted that policies for the redress of
severe social and economic disadvantages are in themselves desirable. Such
policies of distributive justice aim at different sectors of society and at the
widest possible base. Either we call
such policies as protective discrimination, benign discrimination or
preferential policies, they are the means for achieving the ideals of distributive justice. 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. It is these justifications for
affirmative action, that we now turn to
in the next section.
3.
Affirmative Action Programmes : Jurisprudential Basis.
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 ÒAffirmative
action ProgrammesÓ Constitutionally sanctioned, has not put paid to the
controversies dogging this issue. 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. It has been seen in the introduction that the policies of
compensatory discrimination raise a host of questions and arguments. Here an
attempt shall be be made to look into some of the more important questions and arguments and analyse
their theoritical implications. Though the attempt shall be to cover such
questions or controversies rather exhaustively, however there is no claim on
our part that there are no other questions which have important theoritical
implications.
3.1
Merit Argument.
Meritorian
Principle dictates that social goods should be allotted on the basis of oneÕs
merit on ability, whether natural or acquired. Leaving aside the general
intricacies in the application of the principle, 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.e., their
ability in terms of achievement of certain grades or marks in an objective
test-generally a test of intelligence plus knowledge- held for that purpose.
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,
race, colour, sex, caste, etc.[71]
They say that it also satisfies the justice precept of Òtreat like cases alike and diffferent
cases differentlyÓ in so far as it provides a criterion of immediate relevance
to the good to be distributed. This principle assures the selection of the
ablest persons from amongst a large number for the limited goods or opportunities available for
distribution. 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.
It
appears to be a bit weighty argument but a closer examination reveals its
weaknesses. The notion of merit itself is subjective. What is merit after all ?
Merit has no fixed or definite
meaning free from variations. It is nothing but a criterion to achieve some
pre-determined social objective or value or to satisfy certain perceived social
need. It does not control the objective value, or need, but is controlled by
them.[72]
Thus the merit must vary according to the variations in the social objective,
value, or need for achievement or
satisfaction. For example, in a society suffering from under population due to
long term war or any other reason, 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. Production of more than one or two children may, however, become a demerit in an overpopulated
and underdeveloped society. Similarly, 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, but for a police or defence job where predominantly physically strong men are needed,
physical strength and not the grades in examinations may be the merit.
According
to Prof. Dworkin, there is no combination of abilities and skills and traits
that constitutes ÒmeritÓ in the abstract; if quick hands count as ÒmeritÓ in
the case of a prospective surgeon, this is because quick hands will enable him
to serve 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 ÒmeritÓas well.[73]
Prof . Dworkin does not say that merit is unimportant , 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 is
indeed determined in terms of perceived social objectives, values or needs and
is bound to change with the changes in the latter.
One
may take an example to illustrate the point in another manner. Suppose for
example there are three boy claimants for one ticket of a cricket match show.
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, or the one who has demonstrated
exceptional potentiality to obtain better scores in future, 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. If we want to encourage talent and effort by rewarding
it, the boy with highest marks should get the ticket, if we want to encourage
the effort and potential , the second boy must get the ticket. And if we want
to encourage sports, particularly cricket, the ticket must go the third boy.
Two
general conclusions may be drawn from this discussion. First, since merit is
dependent upon the value, goal, or the objective to be achieved, 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. 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. On the face of it physical strength appears
to be an objective criterion, but in fact it may result in constant and uniform
exclusion of the under nourished and weak.
Secondly,
since the merit is determined for serving the perceived social needs or values
of the day, satisfaction of such needs is the end and merit is simply a means
to achieve that end. For example, 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 may find that having met the ordinary common needs of
the community, it needs highly intelligent and sophisticated doctors, engineers
or lawyers to meet the special needs. 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.
Conversely,
a society may find that it does not need as much intelligent and
sophisticated doctors, engineers
or lawyers, 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, but also on
the basis of their suitability to serve the rural and tribal people. 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, 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.
Thus while in the first case intelligence is the merit for becoming a doctor,
engineer or lawyer, in the second rural or tribal poor background acquires
priority over intelligence and becomes merit.
One
may quote a similar kind of an example. Suppose, for instance, a country is not
interested in high class cloth, but it wants that everyone must be clad even if
the cloth is coarse. In such a situation the enterpreneurs who can produce
cheap cloth even if it is coarse should have priority, if a question of
granting a textile industry license arises, over those who have highly
sophisticated machinery and technical know-how to produce fine quality cloth
beyond the common menÕs reach. Thus the capacity to produce coarse but cheap
cloth becomes a merit as against the capacity to produce high quality
cloth.These examples should leave no doubt that merit varies with the social
needs. It changes with the context and is simply a means to achieve certain
ends.
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. It depends on a number of
factors which one cannot influence in spite of oneÕs best efforts and lie
beyond oneÕs control. Researches have established that intelligence is mainly
determined by heredity-specifically that about 80 percent of variance in IQ
scores is genetically determined. Prof. Eysenck says that Òtalent, merit,
ability, are largely innate factors. In addition to genetic factors, talent is
also conditioned by environmental factors and their interaction with genetic
factors.[74] This is
clear from JensenÕs assertion that something between one half and three fourths
of the average IQ difference between
American Negroes and whites is attributable to genetic factors, and the
remainder to environmental and their interaction with the genetic factors. Even
where heredity is the same as in identical twins, if the social environment is
allowed to vary, remarkable differences sometimes occur. Finally IQ is also
dependent upon motivation and motivation to a great extent depends upon social
environment with shapes future hopes, expectations and prospects.
As
such if merit depends upon a number of factors beyond oneÕs control, is it not
as much suspect as a race, caste, religion, 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. 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. If we cannot provide uniform
conditions of living and development to all, we have no reason to prefer the
advantaged over the disadvantaged. Such arrangements is prima facie unjust in
so far as it ensures perpetual advancement of the former and condemnation of
the latter.
3.2.
Rights Argument.
Articulation
of the Rights Argument poses some difficulties. 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.
because another individual is labelled as belonging to a backward group. Every
citizen has a constitutional right that he is not made to suffer disadvantages, at least in the
competition for any public benefit, 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. Prof. Dworkin blasts out the argument. Commenting on BakkeÕs 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, he says Ò It is true
that blacks or jews do not choose
to be blacks or jews. But it is also true that those who score low in aptitude
or admissions tests do not choose their levels of intelligence.Ó[75]
Certainly, he would have been accepted if he were the black. But it is also
true, and in exactly the same sense, that he would have been accepted if he had
been more intelligent or made a better impression in his interview, or, in the
case of other schools, if he had been younger when he decided to become a
doctor. 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, 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.
Gregory
Stanton takes the view that
equality may have three but related concepts (I) Formal individual
equality,(ii)Weighted individual
equality or substantial individual equality and (iii)proportional group
equality..[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,
proportional group equality
means equality among groups, i.e, 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, arrangements by way of reservation of quota can be made to
equalise the distribution of benefits between 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. And since within the group
also there may be more claimants than the benefits to be distributed, members
of that group are allowed to compete among themselves.
With
this view of Gregory Stanton , if one looks at the Constitution of India, 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, reservations of
appointments or posts in favour of
any backward class of citizens, promotion of the educational and economic
interest of the weaker sections of the people, and consideration of the claims of the members of
scheduled castes and scheduled tribes, in the making of appointments to services
and posts. 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. In
practice, we see that most legislations, particularly in the area of social
welfare, take into account groups and not the individual. For example, a labour
legislation safeguarding the interest of industrial workers does not take into
account the non-industrial worker, though he may be more in need of such safeguards than the
former. 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, i.e., the industrialists. 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. Special
provisions are similarly made on the ground of group characteristics or
handicaps.
Prof
Andre Betielle, in an incisive article on ÒDistributive Justice and
Institutional well beingÓ[77]
articulates a critique of Ògroup rightsÓ argument. He argues that at a deeper
level the caste system has changed fundamentally. The moral claims of castes
over their individual members have weakened at all levels of society, and
especially in the urban middle class where the battle over benign
discrimination is being fought. 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. Having freed themselves from the moral authority of
their caste, such individuals are now able to use it instrumentally for economic and political advantages. In the
traditional order , the village
priest or the village barber, 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, for good or evil, shattered for ever. 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. It is true that caste
continues to operate in many spheres of social life; but it does not do so any
longer as a matter of right. The continued existence of caste is one thing; its
legitimacy is a different thing altogether. 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; but in the meantime it can
cause enormous harm to society and its institutions. 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, and in that way to defeat
the basic objective of affirmative action which is to reduce and not increase
caste consciousness. All parties to the
debate say that they wish to dismantle the structure of caste. But caste
is not a material edifice that can be physically dismantled and destroyed. It
exists above all in the consciousness of people-in their deep sense of divisions and separation
on the one hand and of rank and
inequality on the other; 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.
Prof.
M.P. Singh[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. 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
example, Òscheduled castes and tribes are descriptive of backwardness, and
nothing else. For thousands of years they have been treated as untouchables and
denied the right of association with other members of the socie.ty. 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. The individualÕs 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.
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. Further on the other hand if caste identities
are overlooked in public employment and for admission in educational
institutions of higher learning , they are deprived off an opportunity to
overcome their disabilities caused due to exploitation and deprivations of
hundreds of years. The solution appears to be lying somewhere in between-- the
golden mean. Where vast disparities either in Indian situations or in U.S.A.,
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.
3.3.Efficiency Argument.
It
is implicit in the idea of benign discriminations that a less meritorious
person is preferred to another who is more meritorious. The entry of a less
meritorious shall naturally affect the efficiency of the institutional system.
Institutions of our socio economic life like, courts , hospitals, banks,
universities, laboratories, posts and telegraph etc, are the vehicles which
negotiate the arduous path of the community towards a better, more systematic
and healthy life. They are useful not just to the people to whom they provide
employment, but for the public at large and the society as a whole. Indeed the
institutions shape harness and channelise the collective energies of a people
in their quest for a better tomorrow. And as it is said, ÒRome was not built in
a dayÓ , Institutions do not
spring up all of a sudden, they take generations and centuries in their
evolution passing through ups and downs, accumulating experiences of generations,
their trials and travails and
acquiring the shape useful for the
social organism. 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. If for the purpose of redressing grievances of the past, we
tend to undermine the efficiency
of the public institutions, we would be doing unimaginable
harm to the generations to come. It was probably for this reason that
when the framers of Indian Constitution provided for benign
discrimination, 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, 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.[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, yet its importance has to be compared with and
ultimately set against the
significance of such other values as integration, prevention of discrimination
or eradication of stark social injustices. Through that exercise we might find
that for us integration and rectification of socially harmful deprivations and
injustices are as, if not more, pressing needs as efficiency. That was the
demonstrable perception of the constitution makers of the Indian reality and
social needs which have not yet materially changed. Even if we assume the
paramountcy or primacy of efficiency, the connection between the existing test
for entry into the services and the efficiency of administration has not been
empirically established.
According
to Marc Galanter,[80]
Òthe translation of lower academic accomplishment into inefficiency in the
administration is difficult to trace. It is not clear how well academic
performance correlates with administrative talent. Nor is it clear that
differences in the level of such talents are directly reflected in efficiency
or inefficiency of administrationÉ
É..In
part the higher scores of others may reflect cultural disadvantages which are irrelevant to the business in hand; in part, the lower scores of
beneficiaries may reflect a remediable
lack of polish and experience rather than lack of native ability.Ó[81]
In the words of Justice Krishna Aiyar of Indian Supreme Court, ÒThe very
orientation of our selection process is distroted and those like the candidates
from the scheduled castes and scheduled tribes who, from their birth, have a traumatic understanding of agrestic
India have, in one sense, more capability than those who have lived under
affluent circumstances and are callous to the human lot of the sorrowing
masses. Elitists, whose sympathies with the masses have dried up are, from the
standards of the Indian people, least suitable to run government and least
meritorious to handle state business, if we envision a service state in which
the millions are the consumersÉ.. .. Sensitised heart and a vibrant head, tuned
to the tears of the people, will speedily quicken the development needs of the
country and a sincere dedication and intellectual integrityÉ .not degrees of
Oxford or Cambridge, Harvard or Standford or similar Indian Institutions are
the major components of merit or suitability.Ó[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.
3.4.
Balkanisation Argument.
It
has been noted above that benign discrimination underlines class and caste
differences and enhances the social divisions, which are already acute in
Indian socio-political system. A similar kind of an argument has been made in United States of
America, that affirmative programmes are
aimed to achieve a racially conscious society divided into racial and
ethnic groups, each entitled as a group to some proportionate share of
resources, careers or opportunities.[83]
In India due to the history of partition and resulting massacre of around one
million people, the argument that benign discrimination tends to divide the
people revives the history of tragedies of partition. 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. Even
the history of the benign discrimination has not been a smooth one. The
extension of reservations first for the Scheduled Castes and scheduled tribes
and then to Other Backward Classses,(OBC) has already caused so much of
heartburn and has led to ample amount of recriminations. And now the forwards
too are demanding reservations. Demands of Christians and Muslims for
reservations, though subdued at the moment, have started being made. That turns
the whole concept of benign discrimination into a political tool, seeking to
perpetuate the power of paternalistic Government, which would rather dole out,
reservations sops and divide the people than encourage people to stand on their
own feet and compete in a world of excellence. All this leads to an acute kind of anxiety about
the integrity of the country.
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, whose moral and
philosophical justifications leave little room for doubt, which sustain and
transcend the constitutional text and policy. Their argument is that failure at
the implementation front should not be the reason to discard the policy itself. Prof Dworkin has sought to
articulate the response to the Balkanisation argument in American context. He
dispels the fear that affirmative action programme are designed to produce
balkanised America, divided into racial and ethnic sub nations. They use strong
measures to uplift the weaker and deprived or else they will fail, but their
ultimate goal is to lessen and not to increase the importance of race in
American social and professional life.
Prof.
Dworkin writes, ÒAmerican society is currently a racially conscious society;
this is the inevitable and evident consequence of a history of slavery,
repression and prejudice. Black men and women, boys and girls, are not free to
choose for themselves in what roles or as members of which social group- others
will characterise them. They are black, and no other feature of personality or
allegiance or ambition will so thoroughly influence how they will be perceived
and treated by others, 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, one link
is a long and self fueling chain reaction. Affirmative action programmes use
racially explicit creiteria because immediate goal is to increase the number of
members of certain races in these professions. But their long term goal is to
reduce the degree to which American society is overall a racially conscious
society.Ó[84]
According
to Prof. Dworkin, the benign discrimination policies in America rests on two
judgments. 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, while others feel themselves systematically excluded
from a professional and social elite. The second is calculation of a strategy:
that increasing the number of blacks who are at work in the professions will ,
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. At that future point the consequences of nonracial admissions
programmes, whatever these consequences might be, could be accepted with no
sense of racial barriers and injustice.
This
argument perfectly fits in Indian situation as well. The Affirmative
Action Programmes in the form of
State advantages, here in India, more elaborate, varied and specific as they
are, 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
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, in a society
where there exists forward and backward, higher and lower social groups. The
first step in this process is to bring the lower and backward social groups to
the level of forward or higher social group. Unless all social groups are
brought to an equal cultural plane, social intercourse amongst the groups will
be an impossibility. Employment and particularly the government employment
promote social and economic advancement and provisions relating to protective
discrimination precisely aim at achieving this goal. It must be noted in this
context that article 15 (4) and 16
(4) specifically refer to social and educational advancement of disadvantaged
groups. However economic advancement naturally accompany the social and
educational advancement. 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. Under
Indian Constitution, the protective discrimination programme has been designed
specifically to remedy social disadvantages by way of distribution of state advantages. It must, however, be
ensured that a fortunate few do not monopolize its benefits for ever. A
constant endeavour has to be made that the theoretical justifications are
matched by effective implementation.
XXXXXXXXXXXX
CHAPTER - III
Indian Panorama of Equality and Justice : Ancient and Modern.
Times are not static, they change and so changes the life of a nation. Socio-political order of any system in particular is dynamic, 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. 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. Indian social system from the beginning of its inception has been witness to the changes of multiple dimensions. Beginning with the Varna Vyavastha, the Indian social system boiled down to caste structured system which has taken such deep roots that the education, economic development , political awareness, legal institutions, constitutionalism and even modernisation could not not have much impact on it, so much so that even the Protective Discrimination system, 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.
The present set of policies too have more than 100 years history. Initially the policy was introduced by the colonial administration to divide and rule the local people and perpetuate their authority. Apparently a mechanism to maintain the balance of power amongst different sections of society, though the stated objective was to redress the inequality in public services. In the post independence period, however, 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. The ancient past has not certainly been a blameless one, but his also does not justify Henry MaineÕs dismissive remark that much of Ancient IndiaÕs wisdom consisted of Ôdotages of Brahmanical superstitionsÕ.[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. 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 . IndiaÕs 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, on the contrary, it was comparatively a dynamic order unparalleled in the contemporary societies and since it still retains a lot of socio-political validity, it would be appropriate to understand the basics of it. The point 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 IndiaÕs organising principles of socio-political governance (I), trying to understand the peculiar setting of Varna system and its rationale (II), which got distorted into a hierarchical caste structure, 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). The present model, elaborate, complex and bewildering as it is , due to the structural complexities, it would not be possible to cover the whole range of issues that form the part of the present discourse on Protective Discrimination. As such a few arguments, which have been debated in other politico-legal systems (especially U.S) as well, shall be taken up for the purpose of putting the things in perspective.
1. Context of Ancient IndiaÕs Socio-political governance.
Before
we look at the ancient Indian paradigm of equality and justice, we must
understand the fact, bewildering as it may appear to a western mind, that the
organising principles of Ancient IndiaÕs socio-political arena were not rights but the duties.
Hindu constitutional writers have approached the problem of socio-political
organisation from quite different point of view. They usually describe not the
rights of citizens but the duties of the state; the former are to be inferred from the later. Similarly they
discuss the duties of citizens from which we are to infer the extent of the
control, the state could exercise over the citizen. Every individual being,
realising the five kinds of debts he owes towards the system has to concentrate
on his duties, without caring for the likely outcome. ThatÕs how Geeta puts it,
Òtherefore perform your duty effeciently without attachement, because it is
only by actions without attachment that a man can attain the supremeÓ.[86]
Another
important point which is peculiar to a western mind and is required to be noted
for a proper understanding of IndiaÕs
jurisprudential tradition is that there is no essential conflict between
individual and society or the state. 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. 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 very existence of the state is for the purpose of promoting all sided progress
of the citizen. State as such is
indispensable for the progress and
happiness of the individual. Individual on his part having the sense of
obligation due to the five fold debt, [88]he
owed to the system as a whole could sacrifice himself for a bigger purpose.
State as such for the Hindu system is not a necessary evil but a necessary
benefactor. The conception of individual rights therefore could not be a
major problem for political and
jurisprudential thinking. 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.
With
this essential complementarity of
the individual and the state under Hindu system, when we approach the
conception of equality of citizens, the individual citizen is to be understood
and defined from a holistic perspective and from the perspective of individuals
goal in life. 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 . As such the
ultimate goal of both the individual and the state, so to say the Dharma of
both entitities is ÒYato
Abhyudayh Nihshreyasah sa DharmahÓ,
i.e. something which ensures, complete,absolute and best of development is Dharma and therefore ensuring such an environment wherein
the character, and the potential of the individual finds their fullest
development is the duty of the state and as such the right of the 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, call it
state or society.
Individual
personality in the Hindu scheme of things is not considered to be
unidimensional or unilinear. It is complex of various interacting factors,
having many layers of consciousness. At the physical level, the basic equality
of the matter constituting the human body is recognised. Ò One who considers
everybody (including the every creature of the living world) like his own self
is the true knowledgeable personÓ.[89]
At this level human body is nothing but a vibrating pulsating mass of neurons.
As such there is no difference between A and B. What distinguishes the two are the means of experiencing
the outer world. This is the level of consciousness. At the other level, i.e.
the level of physical being, no two individuals are similar in any way
whatsoever. Basic nature, circumstances, the character and the potential which
an individual is born with, can never be the same for any two individuals .
This diversity of natural propensities is to be taken into consideration by the
system providing for balanced development of any human individual .
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. No one
individual is either a paragon of virtues or simply a bundle of evils. On the contrary every individual person posseses a
unique combination of virtues and vices. The system cannot simply think of
providing similar educational facilities, allowing every potential of every
individual to develop, rather the system has to take care, 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. Aristotelian
concept of applying equal laws amongst equals is no different from this. And the concept of equal
protection of laws, under Indian Constitution speaks in the same vien.
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. IndiaÕs
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 nurture his
elements and psychological personality. 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. 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 IndiaÕs
ancient jurisprudential thinking, which somehow impinges on the thought process of policy
makers, legsilators, judges and
academicians, even today.
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. There are two sides of this control or
regulation, social and individual. 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 is
called ÒVarna DharmaÓ. It
represents the social side of Dharma and
the individual side is represented by the Ashrama Vyavastha, which relates
to various stages of
individuals life, young age,
middle age and or old age
etc. [90]Looking
at the social side of the individual, individual is not an absolute entity. 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
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. Some one who is
intellectually very sound and
is adapted in policy issues
for social regulation, is known as Brahmin. One who is physically powerful and has leadership qualities,, 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. Those who are efficient in economic planning and
execution, they either themselves or with the help of the labour perform their
duties for re-inforcement , perpetuation and development of social system and
contribute towards economic well being of the social organism are known as Vaishyas. And those who find their fulfillment and expression
in labour and services of others are known as Shudra. This four-fold division of labour in Ancient India
was known as Varna system
contemplated for the wellbeing and evolution of socio-political system.
This
Varna System was originally an arrangement for the distribution of functions in society, just as much as class
in Europe, but the principle on which this distribution was based in India was
peculiar to this countryÉÉ 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, and he
had to cultivate the spiritual temperament and acquire the spiritual training
which could alone qualify him for the task. The Kshatriya was kshatriya not merely because he was the son of warriors and princes, but because
he discharged the duty of protecting the country and preserving the high
courage and manhood of the nation, and he had to cultivate the princely
temperament and acquire the strong and lofty Samurai training which alone
fitted him for his duties. 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. There was no essential
in-equality between a brahmin and
a sudra since both of them were the necessary part of the single ÒVirata
PurusÓ (cosmic spirit).
Etymologically speaking the word Varna is derived from
the original sanskrit word ÒVriÓ which means and stands for chosing or
selecting a thing. Thus the word ÒVarnaÓ implies the occupation chosen
or selected by an individual in accordance with his nature, disposition, genius
and temperament[91]. The first
use of the term ÒVarnaÓ is found in Rigvedic texts in which the mankind
has been divided into two . ÒVijanihyarnye cha dasyavohÓ[92]
i.e. men are of two kinds ÒAryaÓ i.e. noble and ÒAnaryaÓ the idiot or Shudra.[93]
Prof. P.V. Kane, after
carefully studying the ancient scriptures, concludes that in the earliest times
about which literary record exists, there were only two Varnas, the Aryas and their opponents,
Dasyus or dasas, who were later subjugated and given a position
subservient to Aryas[94]. But later owing to cultural advance,
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 occupations[95].
The most prominent and known use
of Varna is found in Yajurveda, wherein four types of Varnas have been
accepted.
Brahmanasya mukhamaseet
Bahu Rajanyah Kritah
Uru tadasya yadvaishyah
padabhyam shudro ajayat.[96]
A rough and precise
translation of the verse is that the Brahmin is born out of the mouth, the kshatriya from the arms; the
vaishya from the stomach and the shurdra is born from the feet of the
Lord. Manu talks about the same in the following manner.
Lokanam tu vivardhyartham mukhbahurupadtah
Brahmanasya Kshatriyam vaishyam shudram cha nikhartayat
i.e. the Lord has created four
Varnas, Brahmin; Kshatriya, vaishya and Shudra for the upkeep and
betterment of society corresponding to the four limbs of the Lord. That means
that four Varna system has been bestowed on the world by the Lord, the
creator.
The point worth noticing is
that doubt about this theory of Brahmanas having taken birth from the
mouth of the Brahma etc. arise when we take the words at their face value i.e.
when we do the literal interpretation of the text. 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. This may be illustrated by way of an
example. Rigveda states that the King has been made out of eight
elements i.e. Indra, vayu, yama, surya, agni, varuna, chandra, kubera [97]etc.
Evidently the king cannot be produced by eight elements, simply because the
temporal body of human beings have been constituted of five elements i.e.
earth; water; fire sky and air. 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.
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.
Sarvasyaasya tu sargasya guptyartham sa mahadyutih
Bahurupajjaanam Prithakkarmapyakalpayat .[98]
This implies that the Almighty
God has created four varnas for the security, order and prosperity of this
earth, corresponding to the four limbs of the lord and the Karma of a particular varna shall be entitled
for the same. 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
ÒVarno
vrinotehÓ[99] meaning
thereby that something which is chosen/selected by the person according to his
karma is varna. Commenting on this Swami Dayananda Saraswati writes .
ÒVarno vrinoteriti niruktapramanyad varniya varitumarhah,
Gunkamani cha drishtwa yathayogyam vriyante ye te varnah.Ó[100]
i.e. the right given to an
individual after observing his qualities and dispositions is the varna. 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 Ò Brahmana Veden Parmeshwarasya
upasanen cha sah Vartmano vidyadi uttamayuktah PurushahÓ [101]i.e.
one who devotes oneself in the studies and thought of the Vedas and the God,
and bears a good moral character is Brahmana. Manu too states the same
thing. According to him to study and teach Vedas, to do and getting done the yagnas, and to give and
takes alms/donations are the six duties/deeds of the Brahmana.[102]
The word Kshatriya is deived from the
original word kshat and has been explained etymologically in Nirukta Ò Kshadati
Rakshti Janan kshatrahÓ [103]i.e.
one who protects public from violence, invasion or loss etc. is kshatriya. Manu explains the
duties/deeds of the Kshatriya
Prajanam Rakshanam Danamijyadhymeva cha
Vishayeshva prasavittashcha
kshatrisya samasatah.[104]
i.e. one who devotes oneself
for the thorough studies of Vedas, performs agnihotra
yagnas, gives alms to worthy people, assures protection, the public at large,
not allured by worldly vices and has control over himself, is benign, noble and
humble is the kshatriya in the real sense of the term. Here the doubt may
arise due to the use of the word ÒeeyaÓ in the sense of an
offspring, 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. For
example there are supposed to be no wife/offspring of surya, varuna etc., but still due to the relation of cause and
effect and the transfer of knowledge the son of Aditi is called Aditya, the wife of the
sun is called Suryaa and so on. [105]
The term Vaishya too is indicative
of the varna system based on merit and deeds and not by birth. Yo yatra tatra
vyavaharvidyasu pravishati shah vaishyah vidyakushalah jano vaÓ [106]i.e.
one who engages in different types of business relations and is different in
different pragmatic relations is vaishya. In this connection Manu
states
Vanikpatham kusidam cha vaishyasya Krishimeva cha [107].
i.e. the protection
and betterment of animals like cow, investing money for progress of
knowledge, performing yagnas like agnihotra etc., studies of Vedas and other
scriptures, doing all kinds of business, not taking interest more than 1.25
percent and not less than 0.25 percent ,not accepting even a penny on receipt of double the
original money. The less interest he takes the more he progresses in terms of
money, his dynasty will never suffer from penury and birth of an idiot
offspring.[108]
Like Brahmin, kshatriya, and vaishya, shudra too is indicative of a varna system based on
merit and deeds. ÒShudrah shochniyah shodhyam sthitimapanno va sevayam
sadhur avidyagun sahito manushya vaÓ[109]
i.e.
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. the owner. Further ÒAshato va Esha
Sambhuto yat ShudrahÓ[110]
i.e. one who suffers lowliness due to his ignorance and idiocy and the one who
can only serve his master is called shudra. Writing on the social status
of a shudra Manu writes
Ekmeva tu shudrasya prabhuh karma samadishat
Etevameva varnanam shushrushamanayuya .[111]
i.e. one who is devoid of
knowledge and cannot be taught by teaching process but is efficient in terms of
physical robustness, the Lord has instructed him to serve the three upper varnas of Brahmin,
kshatriya and vaishyas without any ill will. This may create a sense of
inferiority and worthlessness of an individual who is shudra. But in fact there
is nothing in the varna system that may warrant this assumption. Manu has
used the word Shuchi while explaining the duties of shudras, which stands for
purity of mind and body. And this is also self evident that a person who serves
others can never be treated as lowly, inferior or worthless.Justice Rama Jois
explains Ò 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, the authors of two great epics, the Ramayana and Mahabharata, 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,
belonged to the fourth and second Varna respectivelyÓ[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.e. one who is
one time born. He is treated as shudra since he is not twice born by
knowledge; the shudra is also called by the synonym Ekjanmah.
It is worth noting that castes
were not hereditary, and this demonstrated by a verse in Rigveda where a poet exclaims Ò I am
a reciter of hymns, my father is a physician and my mother grinds corn with
stonesÓ.[113] In another
verse in Rigveda a poet asks the God Indra; ÒOh Indra! Fond
of soma, would you make me the protector of the people, or would you make me a
king, would you make me a sage that has drunk soma, would you impart me endless
wealth.Ó [114]This shows
that the same man could be a sage,
or a nobleman or a kind, depending upon his desire and activities.
The most authentic description
of varna system and the duties of different varnas is supposed to
have been given in Mansumriti. 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. The best illustration/argument to support this
proposition is that Manu had discussed at large the duties of various varnas. Had he treated varna to have been
determined by birth, 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. 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, the same undesirable deed would not affect his station in life
at a later stage. The account of acts prohibited by law, 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. If the merit of an
individual is accepted by birth alone the entire Karma system of Manu
will collapse. He treats every individual a shudra by birth. ÒJanmana jayate SudrahÓ i.e. ever body is
a sudra by birth and his merit or station in life is determined by his acts and
deeds. The Manusmriti is suffused with various examples of it.
Shudro
Brahmanatameti Brahmanshchaiti Shudratam
Kshatriyajjatmevam tuVidyadvaishyattathaiva cha .[115]
The above sloka implies that a Brahmin, may turn into a shudra and shudra into Brahmin, depending on ones deeds and actions. A person born
in a Brahmin family may remain a Brahmin only if his deeds are like
those of a Brahmin, otherwise he lapses into shudrahood. Similarly an individual born
in a shudra family remains a shudra only if his deeds are those of a debauched
person. On the contrary if his
deeds are like that of a Brahmin or kshatriya he gains the varna suiting to his
karma; deeds and disposition. According to Manu one who does not follow
his duties turns into a shudra. He writes
Yondheetya dwijo vedamanyatra kurute shramam
Sa jeevannev shudratwamashu gachhati sanwayah .[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. 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. The point to be
noted in this connection is that
the word veda here has been used as a synonym of knowledge . Not only this, but one who keeps company of shudra i.e. who is not
knowledgeable, too becomes shudra. Manu writes
Uttamanuttamangamangachhanheenanheenasch varjayan
Brahmanah Shreshthatameti Pratyavayen Shudratam.[117]
i.e. a Brahmin by keeping in touch
with meritorious and knowledgeable people and by leaving the company of shudras and debauched,
keeps on attaining merit after merit. One who acts contrary to it lapses into shudrahood. A noticeable
point in this connection is that the word Brahmin here, has not been
used for the person born in a brahmin family but for the one who
attains Brahminhood by his deeds and dispositions. 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, similarly a person born in a shudra family may attain Brahminhood by doing the
suitable deeds.
Shuchirutkrishta
shushruvurmtaduvaganah kritah
Brahmanadyashrayo Nityamutkrishtam jatimashnute[118]
i.e. a shudra of pious body and
character serving the higher castes, if is soft spoken and devoid of pride may
attain Brahminhood or the Dwijanma i.e. twice born Varna .It was because of
this that Chokha Mela, the maratha
pariah, became the revered teacher of a Brahmin, who was proud of his caste
purity. The chandala, (an outcaste who takes care of the burning of died
bodies) taught Shankaracharya [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. There comes a story in Mahabharata, [120]that
an established Brahmin named Kaushik gets an elaborate lecture from a butcher,
Ò You appear to have attained the Brahminhood only in this birth for you are so full of pride, and are
enmeshed in human vices, therefore
you are no better than a SudraÓ.[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, was based purely on ones deeds and was designed
for the maintenance of law and
order and progress of the system. 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. The people were divided into four Varnas but the Varna system was
designed for the peace and progress of the people at large. The people were
equal by birth and there were
available ample opportunities of social mobility horizontal as well as
vertical.
It is commonly believed and
alleged many times that the caste system has really hampered the growth of a
democratic system. Dr. Radhakrishnan, however considers the Varna System as
perfectly democratic system. Firstly, because system believed in perfect
equality at the spiritual level, (Atmavat SarvabhuteshuÉÉ..) 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, it also establishes a system of responsibility and
accountability. Individualism is not fulfilled by running away from the
limitations of responsibilities and accountability. The true individualism lies
in the willing acceptance of the social responsibilities tempered with propriety and honesty.
Thirdly this system also recognises that all functions have social utility but
economically speaking no particular function has any priority. Fourthly, it
must be understood that social
justice is not a system of rights but a system of equal opportunities.
No democratic system would accept that all individuals in the state system
should be alike. State is some kind of a machine, an organic system, different
parts of which have to perform different functions. 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 . 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, political and economic power
rules out any kind of misuse of power of any organ of the state system.
Under this fourfold division,
everybody has to work according to his choice, potential and propensity and has
to achieve their fulfilment. A human individual is niether a single cell like
creature nor a machine which can be bought and deployed for performing a
particular task, according to the choice of the buyer. 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.
3. Deterioration of Varna System into
Rigid Caste System.
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. 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, however
the mental horizon of the people had started narrowing down. There was no
prohibition of varna marriages amongst three Dwija varnas. Shudras were placed at the
lower station in social system but were not looked down upon. There certainly
was no system of untouchability, rather the responsibility of looking after the
welfare of the shudras shared by the three Dwija Communities.
With the changing times,
however, the rot started setting in. Now the offsprings of Brahmins were started being
identified with the specific tasks of Brahminhood and offsprings of kshatriya for the tasks for kshatriyahood. The willingness
to change ones varna had started weakening. Though the mobility amongst
different varnas was still possible in theory; the instances of change
from one to another varna had started becoming rare. The varna system which was deed based hitherto, now started
taking the shape wherein the birth was important in determining the status of
an individual. The offsprings of different varnas started inheriting
the membership of the particular varna. Brahmins were at the apex
of social system due to their established status in society, now they fortified
their position by interpreting the Vedas in their favour. The systemic flux
gave rise to Budhism and Jainism who attacked Brahminism by emphasising
upon the equality of birth and deed based varna system. Since kshatriya gave protection to
these Dharmas the status of kshatriyas in the social ladder recorded
an improvement.
When the Budhism and Jainism too started
showing the signs of decline, the Brahmins once again raised
their positions. 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}. The
predominance of rituals prohibited intercaste marriages. Though anuloma, i.e. the marriage
of a high caste male with the low caste female was permissible, their offspring
were looked down upon and were treated as crossbreeds and hybrids. [122]The
duties of different castes and subcastes had become determined and at this
stage of social development appeared untouchability. The social status of shudras had recorded a
steep downfall. Brahmin made full use of their status and interpreted Vedas and shastras in their own way
distorting the right meanings of the terms.
The Manusmriti had established an
ideal system of rules for the
regulations of social behaviours. But the essence of it had now been lost. The
interpreters like kulluk Bhatt wrongly interpreted the Vedas and Dharmashastras
to
serve their vested interests. Due to these interpretations the position of
Brahmins in society had become fortified but then status of shudras and women had been
lowered considerably. 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. There were mainly four Varnas initially, i.e. Brahmin;
kshatriya, vaishya, shudra, But now these were subdivided into various subcastes. Intercaste marriages
were prohibited altogether and marrying in ones own community was made
essential. Anuloma marriage were permitted, but for the offspring of
such marriages there was a different caste system. Like marriages, strict doÕs
and donts were prescribed in food relations too. Occupational structure of the
social system now had become completely based on inheritance. Administration
and reins of power were now
completely in the hands of kshatriyas. 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. And since Brahmins were being protected by the
administration they once again came to dominate the scene. Religious rites had
now become ritually dominated. Upnayan {wearing of sacred thread}
was now completely prohibited for shudras. They were now banned from,
entering into temples and places of worships to offer their pujas etc. Study of Vedas too was banned for shudras. 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. State administration has turned into inherited monarchies, as a
result of which the king started becoming lusturous, indignant, indulgent; weak
and tyrants. The weak and ignorant
kings came to occupy the throne and head the administration.[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.
According to Justice Ramajois
ÒIn the meandering course of our history the society got divided into
innumerable castes and subcastes.
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 existenceÓ.[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.C. India faced
foreign armies, including the
huns, Arabs, Turks, Afghanis, Persians, Mongols, Portuguese, French, and
British . India came under Muslim rule around 12th century A.D. for
more than 600 years until the Britishers took over the power at the end of 18th
century. This affected the socio-economic and politico-cultural system in far
reaching manner. According to Dr.
Sarvapalli Radhakrishnan,[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. When such people and
races started settling down permanently, and a situation developed wherein the
locals were compelled to stay with them, it was then, that marriage and social
interaction were restricted and that resulted into coming up of caste system.
Who should belong to which varna, was very difficult to
determine taking into consideration the psychological propensities of different
people. It was in such a situation that birth started being considered the
basis of classifying different Varnas. Once this system got
established, it became rather an imperative to maintain the sanctity of the
descent by education or tradition.
With the decline of Mughals
there started European incursions, another curse for the already fractured
socio-economic and politico-cultural Indian system. In the course of time
Britishers came to predominate the Indian scene. They were no reformers or
charityists. They were hard core businessmen and wanted to exploit the resources
of this land for their own gain. As such the economic exploitation of the
country continued and the empoverishment of Indian subcontinent coincided with
the industrial revolution of Europe , with the Britain working as the engine of growth in European
subcontinent.
Since the Britishers had only
economic interests here, 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.
There were attempts from within Hindu society to reform and rehabilitate the
system. Swami Dayananda Saraswati
in the late 19th
century attempted to reform the system from within by removing social evils and
invigorating the system. He was basically a social reformer and the Shuddhi movement started
by him was intended for removing
social evils from Hindu society. It also created an undesirable crack in Hindu Muslim relations. Jyotiba
Phule by establishing Prarthana Samaj worked for the social
upliftment of the deprived and underprivilieged sections of society. 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. He attacked idolatory,
and through his scholarly research established that idolatry was not sanctioned
by Vedas and Upnishads. Secondly he tried to get the barbarous practice of
Sati abolished. 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.[126]
Before we move on to next
section, it should be taken note of that the rigidity and inflexibility which
has come to mark IndiaÕs caste system characterised by inequality and hierarchical
nature, was not inherent in the traditional social pattern, but was later day
accretion due to may internal and external reasons. In the course of time it
gradually hardened into a rigid
framework based upon heredity. Inevitably, it gave rise to gradation
and put a premium on snobbery.
Thus came into being social hierarchy and stratification resulting in
perpetration of injustices by the so called on the lower castes. This
necessitated a programme for the reconstruction and transformation of a medieval
hierarchical society emphasising inequality, into a modern egalitarian society
based on individual achievement and equal opportunities for all regardless
oneÕs caste race, or religion. This was evidently the intent of IndiaÕs
protective discrimination programme.
4. Post-Independence
India : A New Beginning.
system etc, 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. Thus independent India came to embrace
equality as a cardinal value against the background of elaborate, valued and
clearly perceived inequalities[127].
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.
These protective discrimination policies are authorised by constitutional
provisions, that permit departures from norms of equality, such as merit,
evenhandedness and indifference to ascriptive characteristics.[128]
These array of protective discrimination programmes can roughly be divided into three broad categories. First are Reservations
which allot or facilitate access to valued positions or resources; such as
reservations in legislatures, including the reservations for Scheduled castes
and scheduled tribes in Lok Sabha ( House of the People; the lower house of
Indian Parliament),[129]
reservations in government
services and reservations in educational institutions. Second type of
protective measures are employed though less frequently in land allotment,
housing and other scarce resources
like, scholarships, grants loans and health care etc. Third type of
protective measures are specific kinds of action plans for removal of
untouchability, prohibition of forced labour etc. Interestingly few in
independent India, would voice the disagreement with the proposition that the
disadvantaged sections of the population deserve and need special help, there
is no public defence for the caste system, everyone is against untouchability.
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. 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.
4.1. Reservation in Legislative Bodies.
The constitution of India
treats the scheduled castes and scheduled tribes in India with special favour and affords them with some
valuable safeguards. 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. Scheduled
tribes also known as ab-origines,
are those backward sections of Indian population who still observe their tribal
ways, their own peculiar customs and cultural norms. 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.[130] These
scheduled tribes people too need special provisions for safeguarding their
interests. 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. 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.
For the purpose of
providing protection in terms of
political representation, 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.
Earlier section 2 of 23rd amendement of the constitution 1969, excluded the operation of article
330 to the tribal areas of Nagaland , but the exclusion has now been extended
in respect of the state of Meghalaya, Mizoram and Arunachal Pradesh by 31rst
amendment Act as these states are predominantly tribal in nature.[131]
Similarly under article 332, 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. Once again the state of Meghalaya, Nagaland, Mizoram and
Arunachal Pradesh are excluded from the operation of 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.
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. 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.[132]
The claim of eligibility for reserved seats does not exclude the claim for the
general seat. It is an additional claim obtainable by way of merit and work.
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. There is no separate electorate. It is for the scheduled castes and
scheduled tribes alone to elect their representatives[133].
Thus to elect a person belonging to such castes and tribes to a reserved seat,
all the voters in the constituency have a right to vote. 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.[134]
It may be noted that initially
these reservations were provided for only 10 years from the commencement of the
Constitution under article 334. But this duration has been extended continuously since then by 10 years each
time. Now the period of reservations in Lok Sabha and State legislative
assemblies stands for 60 years from the commencement of the constitution. [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. 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. [136]
The fact that reservation of
seats for scheduled castes and scheduled tribes in the legislatures is not
on a permanent basis, 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. Their condition would improve so
much that they would feel their
interests secure without any kind of reservations.
4.2. Resevation in Jobs (Government
Services)
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), but is definitive of equality in relation to backward group[139]. 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, because any real classification will have to take into account the inequalities based on abuse of caste, religion, race etc. criteria. Therefore on the one hand, the constitution forbids discrimination on grounds of race, caste or religion etc, so that the old inequitous situation may not be continued, on the other hand it permits these very criteria for correcting evil consequences flowing from their past misuse. 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, of course, subject to the rider that caste, cannot be the sole or dominant test, although it can be used in conjunction with other relevant consideration like poverty, occupation , place of habitation etc.[140]
It
is noteworthy that under article 16 (4) reservation in government service can
be made not only at the initial stage of recruitment, but even in the matter of promotion from a
lower to a higher post or cadre.[141]
Thus selection posts can also be reserved for backward classes. The expression
adequately represented in article
16 (4) imports considerations of size as well as values. Adequacy of
representation of backward classes in any service has to be judged by reference to numerical as well as
qualitative tests [142]. 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. It is merely an
enabling provision and confers a discretionary power on the state to reserve
appointments in favour of certain classes of citizens. [143]
An
important point about article 16 (4) is that, this provision permits state to
classify individuals for favoured treatment. Now the point is that
classification is possible even under article 14 itself which inter alia provides for equal protection of laws. In fact Dr.
Ambedkar has suggested a proviso
to article 14 that Ònothing in this clause shall prevent the state from
making any law for the removal of inequality, disparity, disadvantage or
discrimination arising out of existing law. Had this proviso been adopted there
would have been no need to have
provision like article 16 (4), however a cursory glance at the constituent
Assembly debates proves that article 16 (4) was incorporated by way of an
abundant caution[144].
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.
Despite this level of caution on the part of constitutional framers, the controversy of formal vs proportional
equality equality has not escaped article
16 (4). If one takes the view of formal equality[145]
which simply requires absence of any discrimination in the words 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. And if article 16 (4) is an
exception, then the permissible limit of reservations cannot exceed 49 percent
as the exception cannot override the original provision[146].
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. Even reservations have
to be made subject to the requirement of article 16 (4) regarding backwardness
and under-representation of the
preferred groups. Article 16 (4) read by itself rules out other possible
ways of encouraging the backward classes
in the state employment.[147]
For instance it is unclear whether the preferential rules such as waiver of age
requirement, application of fees and minimum educational qualifications,
special coaching and training programmes are included within the power under
article 16 (4). Apparently these preferences are not reservations in the strict
sense of the term.[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),
and this vision of article 16 (4) would enable the state in making exceptional
provisions for the purpose of benefitting the backward classes. 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.
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.[149]
The departure from equality could be permitted only to the extent
mentioned in clause 4 of article
16. This clause could not be read as completely excluding or ignoring the
rights of other citizens. If unlimited reservations were permissible , this
would have the effect of effacing
the guarantee contained in equality provisions.[150]
But
in Thomas [151]decision
the Supreme Court by majority rejected the notion that article 16 (4) is an exception or proviso to article
16 (1). 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).
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; it is free to choose any means to achieve equality of opportunity
for these backward classes. This also meant that quantum of reservations is not
necessarily to be within 50percent limits. 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 circumstances leading to
the scheme were something like this. 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. In order to give relief to the backward classes of citizens, 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. As a result of this rule , thirty four out of
fifty one posts were filled up by members of scheduled castes and tribes
without passing the test. N.M.Thomas, a lower division clerk, was not pomoted
despite his passing the test. He questioned the rule 13 AA as violative of
article 16 (1) and not saved by article 16 (4). The Kerala High Court declared
the impugned rule invalid under
article 16 (1). 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.[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. 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. Justice Krishna Iyer observed, Ò To my
mind, this sub article i.e. article 16 (4) serves not as an exception but as an
emphatic statement, one mode of reconciling the claims of backward people and the opportunity for free
competition the forward sections are ordinarily entitled to É. True, it may be
loosely said that article 16 (4) is an exception but closely examined, it is an
illustration of constitutionally sanctified classification. 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 doubtÓ[153].
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). 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. This proposition was forcefully expounded in DevadasanÕs case[154].
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. Reservations of more than 50 percent of
vacancies per se were held to be destructive of the rule of equality of
opportunity. [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. 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.
This
view of article 16 (4) has been endorsed in Indira Sawhney v. Union of India[156].
It has been held that Equality postulated under the Constitution is not merely
legal but real equality. Holding article 16 (4) to be an explanation of 16 (1),
justice Sawant has rationalised that equality of opportunity has to be distinguished from equality of results.
Various provisions of constitution show that right to equality is not a formal
right or a vacuous declaration, it is a positive right and the state is
under an obligation to undertake measures to make it real or effectual. A caveat has however been posted by
Justice Sahai, who had emphasised that Ò reservations being negative in content to the right of
equality guaranteed to every citizen by article 16 (1), it has to be tested against positive right of a citizen
and is a direct restriction on state power. Judicial review , thus
instead of being ruled out or restricted, is imperative to maintain the
balance. The court has a constitutional obligation to examine if the
foundations of stateÕs action was within constitutional periphery and even if
it was, 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.[157]
4.3. Reservations in Educational
Institutions.
Provisions
for reservations in educational institutions to deprived sections of scheduled
castes and scheduled tribes has been secured under article 15(4). Article 15 (1) specifically bars the state from
discriminating against any citizen, race, caste, sex, place of birth or any of
them. 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.. The expression Òmaking any
special provisionÓ 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, for example waiver of fees, waiver of age
requirements, special coachings, scholarships, grants, loans etc.
Interestingly, however, the use of article 15 (4) has exclusively been made so
far for providing reservations in educational institutions.
The
two most contentious issues about providing reservations in educational
institutions for scheduled castes and scheduled tribes is ,(1) Determination of
backward class status and (2) extent or quantum of reservations. 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[158].
Article 15(4) lays down the
criteria to designate backward classes, it leaves the matter to the state to specify backward
classes. 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. Article 341
provides that the President may by
notification in a particular state; after due consultations with governor in a
particular state specify the castes, races or tribes which shall for the
purpose of this constitution be
deemed to be scheduled castes in relation to that state. The second clause of
this article provides the list of scheduled castes specified in the notification issued under scheduled
tribes. 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. [159]
The
question of defining backward classes
has been considered by the Supreme Court in a number of cases.[160]
On the whole the courtsÕ approach
has been that state resources are limited; 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. 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. From several judicial prounouncements
concerning the definition of backward classes, several propositions emerge.
First the backwadness envisaged by article 15 (4) is both social and
educational and not either social or educational.[161]
This means that a class to be identified as backward should be both socially and educationally backward.
Secondly, poverty alone cannot be the test of backwardness in India because by
and large people are poor and therefore, large sections of population would
fall under the backward category and thus the whole object of reservation would
be frustrated.[162]
Thirdly backwardness should be comparable , though not exactly similar to
scheduled castes and scheduled tribes. Fourthly, castes may be a relevant
factor to define backwardness, but it cannot be the sole or even the dominant criterion[163].
If classification for social backwardness were to be based solely on caste,
then the caste system would be perpetuated in the Indian society. 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. Fifthly, poverty,
occupations, place of habitation, all contribute to backwardness and such
factors cannot be ignored. Sixthly, backwardness may be defined without any
reference to caste. As the Supreme
court has emphasised[164]
Article 15 (4) does not speak of castes, but only speaks of classes, and that
caste and clas are not synonymous. Therefore exclusion of caste to ascertain
backwardness does not vitiate classification if it satisfies other tests.
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 . Because of keen
competition for limited opportunities available in the country, 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. Basically any reservations
is discriminatory for reservation means that as between two candidates of equal merits, the
candidate belonging to the reserve quota is preferred to the one having no
reserve quota. 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.
Till Thomas[165]
case, the Supreme Court
decisions on article 15 (4) had
held that this article was an exception and that speaking generally,
reservations should be less than
50 percent. In DevadasanÕs [166]case,
the majority held that reservation should be less than 50 percent. 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), 15 (4) would not be controlled by 15 (1) and as such
the quantum of reservations could
go beyond 50 percent. The rationale of such a turn around was articulated by
Justice Krishna Iyer, ÒThe
expression, Ônothing in this articleÕ 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 has not really carved out an exception but has
preserved a power untrammelled by the other provisions of the articleÓ.[167]
This Theory of legislative device is not
tenable and can be criticised on a number of counts. H.M.Seervai, lists the
following criticism.
1.
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), (4) and (5) of article 16 respectively
2.
It ignores the fact that
the words Ônothing in this articleÕ 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.
3. 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, ex majore Cautela.
4
It ignores the
legislative history of article 16
(4) which shows that 16 (4) was an exception of article 16 (1).
5.
It ignore the decisions
of high authority which show that the words Ônothing in this ActÕ or Ônothing
in this articleÕ are apt words for
introducing exceptions.
6.
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.[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 Ôright to
equalityÕ. A plain rerading of sub articles 15(1) and 15 (2) show that
they confer fundamental rights. 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, race, caste, sex, place of birth or any of
them. If any action of the state violates a citizenÕs fundamental right under
article 15 (1), then article 13
declares such action to be pro tanto void, 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, on the prohibited grounds, be subject to any
disability, liability, restriction or condition with regard to the matters set
out in sub clauses (a) and (b) of article 15 (2). 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, namely, that
sub article 15 (1) and (2) confer legally enforceable fundamental right.
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. Article 15 (4), with which we are directly
concerned, 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, but
merely confers a discretionary power on the state to make any special provision
for the advancement of aforesaid classes[169].
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.
Evidently
if article 15 (1) stood alone, no discrimination could be made for example in
favour of scheduled castes , first, because discrimination on the ground of
caste is prohibited by article 15 (1), and scheduled castes are castes. In any
event discrimination on the
ground of religion is also
prohibited by article 15 (1) and
scheduled castes are based on religion, because no one can be deemed to be a
member of scheduled castes if he does not profess the Hindu or Sikh religion.
Therefore article 15 (4) takes out discrimination in favour of scheduled castes
from the prohibition against
discrimination on the grounds of caste or religion. But in a section or
an article, a later provision which takes something out of an earlier
provision, is recognised to be an exception because, but for the exception, its
subject matter would fall within the 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 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. This conclusion
can further be tested in another way. If article 15 (1) were repealed, because, then article 15 (4) must fall
with it or stand impliedly repealed because, 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). The
above analysis of article 15
supports the view consistently taken by the Supreme Court prior to
Thomas decision, with the consequences that the permissible limit of
reservations could not exceed the limit of 50 percent.
N.M.Thomas
decision which has been noted above in detail holds that 15 (4) and 16 (4) are not exceptions ,
then what is the relation of
article 15 (1) and 15 (4), must be ascertained. 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. For a sub article which confers no right but a discretionary
power, cannot be described as occupying a dominant or primary position over an
enforceable fundamental right. 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 ÒnoÓ.
First because artcle 15 (4) opens
with the words Ò Nothing in this article shall prevent the stateÉÓ which
shows that article 15 (4) is in some way related to or connected with article 15 (1). 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. For to say that sub article 15 (1) is not in any way affected by sub article 15 (4) and
vice versa. This means that a
citizen can enforce his fundamental right against the state regardless of what
is contained in sub article 15
(4). Equally that the state can exercise its discretionary power under article
15 (4) regardless of what is contained in sub article 15 (1). 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. 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. Therefore it follows that the two sub
articles are not independent.
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, that is by way of abundant caution. 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. But if the terms of sub article 15 (4) were struck out, the state
would have no power to make
special provision for the
advancement of the classes mentioned
in article 15 (4), because such a provision would violate the
prohibition of article 15 (1).
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, for the public generally and for the state as well. 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 castes[170].
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. 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
stateÕs scarce resources. 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. 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.
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, which laid down that the claim of the members of the scheduled castes
and the scheduled tribes shall be taken into consideration, consistently with
the maintenance of efficiency of administration, in the making of appointments
to services and posts in connection with affairs of the union or the states.
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, as these entrants occupy
posts in teaching Hospitals. 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. Those who have specialised medical knowledge in their
chosen branch are able to treat better and more effectively. Patients who are
sent to the hospitals are treated by these students who enroll for such
speciality courses. At this level an ability to assimilate and acquire special
knowledge is required. 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 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. It is
also for an expert body such as the medical council of India, to lay down the
extent of reservations. Lowering
of the marks, if any, 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.
It
has been stated above that the expression under article 15 (4) ÒAny special
provision for the advancement of É.Ó Is an open ended and very wide provision.
It is unfortunate that it has not been utilised for other purposes. The
underlying assumption of the interpretation of article 15 (4) so far appears to
be that unless posts, including promotional posts are reserved for backward
classes in public employment, their status can never be improved. 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). The language of article 15 (4) shows first that
reservations as such are not expressly mentioned in article 15 (4), but fall
within the wide expression Òspecial provisions for the advancement ofÉÓ 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. Illustratively
those measures would include grant of land either free or on nominal rent the
supply of seeds and agricultural implements, the supply of expert advice as to
how to improve the yield of land, provisions for marketing the produce and the
like[171].
Those measures would also include
schemes for training the backward classes to pursue trades or small business
which would fetch a reasonable income. In relation to education itself, under
article 15 (4) the state can give free education, free text books free uniforms
and subsistence allowance, merit scholarships and the like, starting from the
stage of primary education and going right up to University and post graduate
education. Once this is realised, 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, and backward classes, the controversies of
reservations, of preferring less meritorious to the more meritorious one, or of
impairing the efficiency of administration for the purpose of providing
protective discrimination, which more often than not are accused to be governed by political considerations
shall lose much of their shine.
4.4. Preferences in Resource Distribution.
The
Preamble to the Indian Constitution of India, has enjoined the Òsovereign,
socialist, secular[172],
democratic Republic of India, to secure to all its citizens, social economic
and political justiceÓ. 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. [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, which command the state to remove existing socio-economic
inequalities by special measures. 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.
Before we note how the reconstruction and transformation of Indian society is
intended to be realised, it must be noted that the provisions included in
Directive Principles of State policy are not enforceable in the courts, however
the principles laid down in this part of the Constitution are fundamental in the governance of
the country.
These
provisions may better be described as
the active obligations of the state[174].
The State shall secure a social
order in which social, economic and political justice shall inform all the
institutions of national life.[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. And there
shall be adequate means of livelihood for all and equal pay for equal work. [176]The
state shall endeavour to secure the health and strength of workers, the right to work, to education and
to assistance in cases of want, just and humane conditions of work and living
wage for workers [177]a
uniform civil code[178],
and free and compulsory education for children.[179]
The state shall take steps to organise village panchayats,[180]
promote the educational and economic interests of the weaker sections of the people, raise the level of nutrition and standards of living,
improve public health, organise agricultural and animal husbandry,[181]
separate the judiciary from executive [182]and
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
ÒThe state shall promote with
special care the educational and economic interests of the weaker sections of
the people, and in particular of the scheduled castes and scheduled tribes and
shall protect them from social injustices and all forms of exploitationÓ.
In
pursuance of these directives , various land re-distribution and allotment programmes have been
initiated. 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. This ensued a spate of litigation in the courts,
as the land reforms laws infringed
the right to property of the land owners.[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 government[185].
For
the purpose of providing legal aid to the poor and indigent a vast network of
legal aid programmes involving judicial officers, Bar Councils and law Schools,
have been established all over the country. Legal Services Authority Act, 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,
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.
Apart
from this various health care
programmes such as primary health centres all over the country have been
established and various scholarships grants, loans etc for the deprived
sections of the population have been contributing their bit towards the
socio-economic transformation of the country. These distributive schemes are accompanied by efforts to
protect the backward classes from exploitation and victimisation.
4.5. Action Plans and Amelioration
Programmes.
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. Constitution itself talks about prohibitions of forced labour under article 23, in
pursuance of which Bonded Labour Abolition Act was passed in 1976. In recent
years there have been strenuous efforts to release the victims of debt bondage,
who are mostly from scheduled castes and scheduled tribes. Anti-untouchability
programme is another area of governmental
concern. Constitution itself abolished untouchability vide article 17
which lays down that Ò Untouchability is abolished and its practice in any form
is forbidden. The enforcement of any disability arising out of untouchability
shall be an offence, punishable in accordance with law. It is noticeable that the word
ÒUntouchabilityÓ 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, such as their suffering from an epidemic contagious disease
or on account of social observance such as are associated with birth or death
etc. On the other hand Untouchability is to be understood in the sense of a practice as it has developed
historically in India. The word refers to those regarded as untouchables in the course of historical
developments in this country.
Anti-untouchability
propaganda and the Protection of
Civil Rights Act, 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, but in substance it is
special undertaking to remedy the disadvantaged position of the untouchables.
5.
General Observations.
It
may be summed up by way of general observations that the present model of
compensatory discrimination policies presents a very perplexing conundrum,
which can be said to be sui
generis. In such a system nothing
can remain sans controversies. 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.
And they have produced a substantial redistributive effects as well.
Reserved seats provide a substantial legislative presence and swell the flow of patronage,
attention and favourable policies to scheduled castes and scheduled tribes. The
reservation in jobs and educational institutions has given to a sizable portion
of the beneficiary group earnings, and the security, information, patronage and
prestige that goes with government job in India. However this has not gone
without costs. In fact the costs have been enormous. Lot of frustration amongst those who have
been deprived off the jobs, which
they would have got in the absence of preferential policies, undermining the
efficiency of administration, underlining the differences and leading invidious
discriminations, making the beneficiary groups dependent and blunting their
development and initiative etc
could be said to be costs of these preferential policies. The criticism that
these policies have evoked and the debates that take place in India today,
represent the vivacity of the Indian Civilisation, wherein the advantages and
disadvantages, hopes and frustrations are indisolubly bound to one another, and
connects the past with the future with an unbreakable continuity of the
present.
XXXXXXXXXXXXXXX
CHAPTER-IV
Equality and Affirmative Action Programme in U.S.A.
We
have seen in chapter II , 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. This necessitated a
protective action programme as an equalising measure repairing the deprivations and injustices of the
past.[186] ThatÕs 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. The affirmative
action programmes or benign discrimination in United States of America too have
a definite history. Not only that these programmes have been adopted and
justified due to a definite past, a past of deprivations and inhuman treatment
of a whole section of the population, but they have had a definite evolution as
well. Starting with the depraved slave system, to the civil Rights movement- a
horrendous civil war, and adoption of fourteenth amendement; developing of the
policy of Òseparate but equalÓ doctrine and the disegregation measures, finally
evolving into a full fledged protective action programme, American benign
discrimination has a chequered history. 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 AmericaÕs socio-political
governance, thus preparing the grounds for some useful comparative conclusions.
1.
A Peep into
the History of Slave system.
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.[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. With
the discovery of the new land there started the influx of Europeans into the
American continent. ÒMayflowerÓ was the first ship that took a batch of Protestants, that came to be known as
ÒPiligrim FathersÓ, from England
in 1620.[188] They did
not like the autocracy of James I , nor did they like his religion. So these
people since then called the ÒPiligrim FathersÓ shook the dust of England from
off their feet and went to the strange new land across the Atlantic Ocean,[189]
to found a colony where they would have greater freedom. They landed in the
north and called the place New Plymouth. Colonists had gone before them to
other parts of the North American
coastline. Many others follwed them, till there were little colonies
dotted all over the east coast from north to south. There were catholic
colonies, and colonies founded by cavalier nobles from England, and Quaker
colonies- Pennsylvania is named after the Quaker Penn. There were also Dutchmen
and Germans and Danes and some
French men. They were a mixed lot.
By
the late 17th century, large tobacco and cotton plantations had
developed in the Southern America, for which there was a big demand of labour.
The Red Indians, who once inhabited the whole continent, were basically nomads
and did not like to settle down. They also refused to work under the conditions
of slavery. They would not bend, rather they preferred to be broken and broken
they were in the subsequent years. They were either exterminated or died off
under the new conditions.[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. Spanish and Portuguese
were the dominant partners in the slave trade; though English too took their
full share in this abominable trade. Africans specially Negroes were hunted and
caught like wild beasts and then chained together and transported to America.
It was found That this carrying of
Africans to America and selling them as slaves was a very profitable business.
The slave trade grew and was subsidized as a business chiefly by the English,
the Spanish and Portuguese.[191]
Special ships slave traders were built with galleries between decks. In these
galleries the unhappy Negroes were made to lie down all chained up, and each
couple fettered together. The voyage across the Atlantic lasted many weeks
sometimes months. During all these weeks and months these Negroes lay in these
narrow galleries, shackled together, and all the space that was allowed to each
of them was five and half feet long by sixteen inches wide.
Vast numbers of such slaves died even before
they could reach their
destinations at the American Coast.[192]
The early days of the Industrial
revolution led to a great advance in cotton spinning in Lancashire in England,
and this led to a demand for more slaves in the United States, for the cotton
plantations of the southern states. These cotton plantations were rapidly
extended, more slaves were brought over from Africa and every effort was made
to breed Negroes. In 1790 there
were 697,000 slaves in America, in 1861, the number rose to 4,000,000.[193]
From
the very beginning there was great difference between northern and
Southern states. The northern states had taken a lead in Industrial development
where the new big machine Industry spread rapidly. In the South there were
large plantations worked by slave labour. Slavery was legal but in the north it
was not popular and had little importance. The south depended entirely on slave
labour. 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. Threats of breaking away from
the union were made. The States were jealous of their rights and did not like
too much interferences from the Federal Government. Two parties arose in the
country, one favouring State sovereignty, the other wanting a strong central
government. All these points of difference divided the North and South farther
from each other, and where-ever new states were added to the union, the question
arose which side they would support.[194]
In
the meanwhile anti-slavery movement gathered momentum in the north under the
leadership of William Lloyd Garrison. The election of Abraham Lincoln was a
signal for the South to break away.[195]
Despite LincolnÕs all efforts to avoid civil war, even his assurances that he
would respect slavery where-ever it existed, 11 States of the South broke away, calling themselves Confederate
States and war ensued in 1861. 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 StateÕs
Constitution, in the form of fourteenth amendment. It was also laid down that
no state could dis-enfrenchise a man on account of his race, colour or previous slavery.
This
did not break the travails of blacks. Despite abolition of the slavery system
and fourteenth amendment rights to all citizens the discrimination against Negroes continued well into mid 20th
century. Everywhere they were segregated and kept apart from the whites in
hotels, restaurants, churches, colleges, parks , bathing beaches, trams and
even in stores. In railways they had to travel in special carriages, called
Òjim crow carsÓ. Marriages between whites and Negroes were forbidden.[196]
The State of Virginia had passed a law as late as 1926 prohibiting while and
coloured persons, from sitting on the same floor. There were innumerable number
of cases, even in the ninteen thirties and fourties, wherein the areas, having
scarcity of labour, Negroes were sent to prisons, on trumped up charges, and
convict labour was leased out to the contractors.
2.
Towards Equality.
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.[197] The Acts
of 1866 and 1870, guaranteed equality of legal status and voting rights against
state action, the Act of 1875, placed the right to equal enjoyment of public
inns, conveyances and amusements regardless of race within the protection of
federal law. ÒEqual ProtectionÓ expressed the desire to lift that great and
good law, above the reach of political strife. 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.
Interestingly,
however, the Supreme Court refused
to construe the fourteenth amendment as altering the existing design of federalism.[198]
In denying the application of the equal protection clause to the Louisiana
butchering monopoly, Justice Miller doubted that the equal protection clause
could have any application except in cases involving the rights of blacks. But
when in 1883 the court was confronted with congressional legislation,
guaranteeing equal protection of the laws to blacks, it balked at giving the
clause positive meaning.[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), it
preserved the existing federal system at the expense of implementing the
principle of ÒEqual ProtectionÓ of laws. The persistent question, however for
the states was, what would be an
acceptable legal principle to support the policy of holding blacks in
their former status. And the answer was found in the formula of ÒSeparate but
equalÓ which got the final approval of the Supreme Court in Plessey v.
Ferguson.[200] Justice
Brown, articulated the majority
opinion that the fallacy of the (Negroe) plaintiffÕs argument consisted in his
assumption that the enforced separation of the two races stamps the coloured
race with a badge of inferiority. If this be so, it is not because of the
reason of anything found in the act, but solely because the coloured race
chooses to put that construction upon it..[201]
This was certainly an
astounding formulation of
Fourteenth Amendment, which was disented by Justice Harlan who insisted that
the ÒLaw was colour blindÓ.[202] It may be noted that though the
opinion of justice Harlan has the touch of progressivism, it however
fell far short of the modern ideals
of the Principles of Equality. It was not until the late 1930s that the
court began to give serious attention to equality requirement. In 1938, the
Court invalidated a law under which Gaines, a black applicant, was refused
admission to the School of law, of the State University of Missouri.[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, and argued that by this action it was
meeting the separate but equal requirement. Chief Justice Hughes, for the
majority of seven, disposed of the stateÕs contention emphatically, ÒThe basic
consideration is not as to what sort of opportunities other
states provide, or whether they are as good as those in Missouri, but as to what
opportunities Misssouri itself furnishes to white students and denies to
negroes solely upon the ground of colour. 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. [204]
That Obligation is imposed by the
constitution upon the states severally as governmental entities- each
responsible to its own laws establishing the rights and duties of persons within
its borders. It is an obligation the burden of which cannot be cast by one
state upon another, and no state can be excused from performance by what
another state may do or fail to do. That separate responsibility of each State
within its own sphere is of the esssence of statehood maintained under our dual
system.
3. Death of ÒSeparate But EqualÓ Doctrine & Protective
Discrimination.
Around 1945-50 a group of cases heralded the impending death of the
Òseparate but Equal doctrineÓ. The
case of Sweatt v. Painter,[205]
was highly significant. In this
case the applicant , 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, and that equal protection of laws was thus
denied. In a unanimous decision the Supreme Court ordered his admission to the
white School, indicating that it was virtually impossible in practice, at least in professional
education, for a state to comply with the separate but equal formula.
Following
this the National Association for the Avancement of Coloured people and other organisations pressed
the fight against segregation in public schools. Finally it was in may 1954
that the famous Brown v. Board of Education [206]ruling
came. The unanimous opinion of the Court articulated by Justice Warren,
declared that in the field of Public Education the Doctrine of ÒSeparate but
EqualÓ has no place. Separate Educational facilities are inherently unequal.
Earlier decisions had eroded the constitutional foundations of the Òseparate
but equalÓ formula to the vanishing point. Nor did the historical evidence,
furnished at the CourtÕs request
and available to it in briefs of counsel, influence the decision. In
approaching this problem, said the Chief Justice, Òwe cannot turn the clock back to 1868, when the
Amendment was adopted, or even to 1896, when Plessy v. Ferguson[207] was
written. We must consider public education in the light of its full development and its present place in American life throughout the
nation.
Brown v. Board of
Education,[208]
sounded the death knell for all racial segregation- at least where the
requirement of state action is met. Brown is based upon the categorical finding
that segregation must involve discrimination, regardless of the tangible
factors, involved in the separate facilities provided. That is inevitably true
of any and all segregation. After all, everyone knows that the purpose of
segregation is not to exclude
white persons from the facilities used by Negroes, but to exclude
coloured people from those used by whites. The post Brown decisions strike down
all forms of segregation in publicly operated facilities, public buildings,
public housing, eating facilities and hospitals and other health facilities.[209]
It is no longer open to question that a state may not constitutionally require
segregation of public facilities. Failure to comply with the disegregation
demand cannot be justified by the mere fact that officials seem it necessary to prevent
interracial disturbances, violence, riots, and community confusion and turmoil.[210]
The compelling answer to this contention is that constitutional rights may not
be denied simply because of hostility to their assertion or exercise.[211]
Important as is the preservation of public order it cannot be accomplished by
the depriving of Negroe children
of their constitutional right.[212]
Thus
came to be established the ÒRight
to Equal ProtectionÓ for all without distinction as to race, colour, and
ethnic origin etc. Shorn of all its contextual interpretations of 14th
Amendment , the ÒEqual ProtectionÓ clause providing that ÒAll persons born or
naturalised in the United States and subject to the jurisdiction thereof are citizens of U.S. and States wherein
they reside. No State shall make or enforce any law which shall abridge the
privilege and immunities of citizens of U.S. nor shall any state deprive any
person of life, liberty or property, without due process of laws, nor deny to
any person within its jurisdiction the equal protection of lawsÓ, means
exactly what it says in so far as
its application is concerned . Its language applies to every person within
State jurisdiction without regard to accidents of sex, birth, or fortune.
Unless words are deprived of their ordinary meaning, it includes every human
being irrespective of citizenship, sex or race- as well as artificial persons
such as corporations.[213]
However, as has been noted that despite its existence in the United StatesÕ
Constitution for around a century, there have been discriminations of most
invidious kind and the interpretation of this clause has changed from time to
time for example, at one time Fourteenth Amendment was quoted as supporting the
Òseparate but equalÓ[214]
doctrine. 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.[215]
However, beginning most notably with the Supreme CourtÕs condemnation of school
segregation in 1954, the United States Supreme Court has finally begun to
correct the discrepancy between its ideals and its treatment of the blackman.
The first step as reflected in the decisions of the courts and the civil rights
laws of Congress,[216]
merely removed the legal and quasi legal forms of discrimination. These actions
while not producing true equality or even equality of opportunity logically
dictated the next step; positive use of governmental power to create
possibility of real equality. This
is how the language used in ÒEqual ProtectionÓ clause expressed in the
individualistic terms came to be used to defend a group, the blacks and by an
activist Supreme Court. This very language came to be interpreted as designed
to defend the rights of Chinese, Japanese, Mexican Americans, Celtic Irishmen,
Indians, aliens and many others.[217]
By 1964, the United States witnessed the emergence of busing to achieve racial
balance , quotas in employment and public housing and inclusionary admission standards for colleges and
universities. These developoments signified the relevance of race as a factor
to achieve actual equality for Negroes and other disadvantaged groups.[218]
It
may be noted that today Òequal ProtectionÓ clause as well as the Civil Rights
Act has come to be viewed as
mandating affirmative action programme using racial classifications. 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. The opponents of these programmes have begun to call such
measures as discrimination in reverse.[219]
The Statement that American
Constitution is colour blind,
expressed in Justice HarlanÕs dissent in PlesseyÕs case has come to be claimed
as the law of the land. Why should a white care how many Negroes are there as
doctors, lawyers or professors ?
He should be considered on
his own merits. If a Negroe cannot be discriminated against on grounds of race
neither can a white be discriminated against on ground of race. The
Constitution is colour blind, it was argued. 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. The equalitarian guarantees of the
Constitution accrued to the individuals and not to groups.
These
competing arguments against and in favour of benign racial discrimination reached their acme in the case
of Regents of University of California v. Allan Bakke,[220]
and later in the United Steel Workers of America v. Weber.[221]
Interestingly, however, neither Bakke
nor the Weber case has decided finally the question
of constitutionality of racial quota, system. These cases, however, have
brought into focus, the entire range of issues, involved in preferential action
policies. Before we have a look at the range of issues, involved and discussed
in these cases, let us have a look at the facts of BakkeÕs case. Allan Bakke, a
white male who applied for admission to the University of California
Medical School at Davis, was
denied admission twice, claimed his individual right to adminssion on a
non-discriminatory basis. 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. The minority applicants could however
compete for all the one hundred places. The trial court found in favour of Bakke, and ordered
the Davis School to admit him. The California Supreme Court struck down the DavisÕ special
admission programme as violative of equal protection clause. It ruled that race
can never be used as a factor in admission programmes. The University appealed
to the United States Supreme Court.
The
Supreme Court was equally divided on the issue. Out of nine Justices who participated in the proceedings,
four justices considered the case on narrow statutory grounds and held that
Title VI of Civil Rights Act 1964 mandated Òcolour blindÓ approach. Whether
race can ever be a factor in admission programmes is not the issue, rather,
they held that Allan Bakke was excluded
because of his race. This was impermissible . Out of five who considered
the issue on Constitutional grounds, one Justice, i.e. Justice Powell held that
both the equal protection clause and Title VI were designed to protect the
individuals right to equality,
regardless of race, colour or skin. He held that race could be a factor in
admission programme provided that none was excluded. While deciding this
Justice Powell had in mind the Harvard School kind of a flexible programme, that do not set target numbers for minority
students. Rather it aimes at diversity in the student body. They recognise that
racial diversity is as important as geographical diversity or diversity in
extracurricular talents and career ambitions, 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.
Remedial use of race could be made only
when appropriate finding of past or present discrimination had been made by
judicial, legislative or administrative
agency. Voluntary use of racial classifications was impermissible. He
held that in no case had the court upheld voluntary use of race conscious remedy
as the one adopted by Davis. And in earlier cases where remedial use of race was upheld none
was excluded from the State benefits. In none of the earlier cases one
individual was preferred at the expense of another. Justice Powell therefore
concluded that racial and ethnic distinction of any sort are inherently suspect
and thus call for an exacting judicial scrutiny. 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. 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. 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.
Thus
four justices who decided Allan BakkeÕs 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 Òcolour blindÓ
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.[222]
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 objectivesÓ. Applying this standard of review they held
that DavisÕ 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
Ðrepresentation 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,
ÒTodayÕs 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 discriminationÓ.
And he concluded that Òthis court
in Civil Rights cases and Plessey v. Ferguson [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 [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 CaliforniaÓ.
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 ÒEqual
ProtectionÓ clause was left unresolved. The other important case which came
before the Supreme Court was that of United Steel Workers of America v.
Weber.[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 companyÕs plant in Gramercy, Louisiana, where Brian Weber a white
labour was employed. Blacks held hardly any of the plantÕs 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 plantÑexcept 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
Congress[226] in
enacting the civil Rights Act concluded that the aim of Congress was to remove
the plight of the Negores in AmericaÕs
economy and Congress really wanted the employers to act voluntarily to
end racial discrimination. The Private employerÕs 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. ÒNeverthelessÓ, Prof Dworkin[227]
put it, Òthe 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
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.[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 HarlanÕs 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 AmericanÕs 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.[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.
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 groupÕs claim for
equality. Where there is a need
for rapid and substantial integration of races oneÕs race can be part of oneÕs
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, Òa piece of intellectual confusionÓ. He goes on to argue
that ÒThere 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.[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 ÒMeritÓargument which has been noted in Chapter II, and which has
been criticised by Prof Dworkin as a ÒPiece of Intellectual confusionÓ.
Another
very favourite argument of the opponents of preferential policies is that
ÒAffirmative 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. But numerical quotas or reservations are impermissible
as they impose unfair burdens on those excluded and they involve the suspension
of standards. Compensation to the
disadvantaged should be made in such a way as not to exclude anyone.[231]
This argument is similar to the argument advanced by Justice Powell in the case
of Bakke, wherein he supported the flexible protective
discrimination programmes like the
one of Harvard University that do not even set target numbers for minority acceptance. 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, 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.
It
is true that a flexible programme is likely to be more efficient
in the long run, 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. His fate depends on
how much either the handicap or the exclusion reduces his overall chances of
success. The handicap and the
partial exclusion are only different means of enforcing the same fundamental classifications.[232]
In principle they effect a white
applicant in exactly the same way , i.e. by reducing his overall chances and
neither is, in any important sense more individualised than the other. The
point is not that factually administering a flexible system may covertly transform it into a quota plan. The
point is rather that there is no difference, from the standpoint of individual
rights, between the two systems at all.
This
brief review of the competing arguments between those who favour benign
discrimination and those who do not, 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. This
also brings forth the
limitation of the intrumentality
of law in social engineering. It is undeniably a very crude strategy to induce
social transformation. The ultimate solution of such vexed issue like benign
discrimination, it appears, depends on the creativity and the goodwill of a
social system committed to
equality of all citizens. 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, each has to bear the social tension
and unrest which accompany the idea of benign discrimination. 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, for which stage
appears to have been set.
XXXXXXXXXXXX
CHAPTER Ð V
Evaluations and Conclusions
Equality and quality are two incongruous quantities, but if the Democracy is not to be a teasing illusion, but humanism in action for underprivileged sections of society, these quantities are to be so harmonised by social technology as to live in functional friendliness, and not snarling fretfulness.[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. For the purpose of realising the fullest potential of democracy the victims of social injustices of bygone generations in whichever country they are, are to be provided ÒEqual Protection of LawsÓ by special strategies, hand in hand with equal opportunites to the more privileged and well to do sections of the population. 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. This is not a one shot affair but an incessant struggle between two opposing trends which involve so much of social history, pathological politics and Constitutional law internalised in this type of social engineering.
The
essence of equality and justice lies in some kind of a leveling process. It
implies the giving of favoured treatment to those who are governed by
unfavourable circumstances and thus lacking in resources opportunities,
incentives and background to achieve success on terms of formal equality[234].
In fact equality is furthered by
favouring competence and by creating a favoured group for redressing
rooted inequalities. Distribution according to merit, desertes, or contribution
and distribution according to need, both are consistent with the essential
principles of equality. 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,[235]
weaknesses and inferiority caused due to genetic, environmental or historical
reasons. Redistribution of societyÕs goods and services in order to remove or
eliminate existing inequalities may ultimately be beneficial to the society as
a whole. Even if compensation involves social costs, imposes burdens on those
excluded and affects the standards and meritocracy, the benefits accruing to
the society as a whole will in the long run outwiegh the costs. The
compensatory treatment provides the beneficiaries an access to the op-
portunity structure of the society than they would have otherwise enjoyed. The
preferences promote integration of the disadvantaged groups into the larger
society and promote national development as well.
It
may be noted that stipulations of equality and justice in a constitution are
often expressed in the universalistic or individual terms. They do not lay down
any particular or specific concept of equality and justice . 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, established morality or the constitutional
goal to achieve equality overall. 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.
With
this perspective in mind when we look at the two largest Democracies of the
world, India and United States, their social history and causes of present
disparities existing amongst various sections of society; the way they look at these differences; the way the
provisions for benign discrimination have been framed in their constitutions;
the way they administer these policies of affirmative action, certain
interesting conclusions can be drawn which have great theoretical implications
not only to the administration of these policies in these countries, but also for the democratic functioning and
the role of law in the democratic
process. These comparisons and contrasts not only lead to ÒCross FertilisationÓ
of the ideas, but also to a better understanding of the other. It must be noted
that a Legal System, have a peculiar mix of specificity and immutability on the
one hand and the dynamics of the evolutionary process on the other. Such
comparative conclusions are
necessary desiderata of institutionÕs evolutionary process that shape the
destiny of the human race.
In
a democratic order, the state system has the responsibility of ensuring an
environment in which every individual irrespective of his caste and creed,
community, sex, descent or place of birth could find the fullest development.
For a balanced equitable and healthy growth, the individual should have the power to make choices and in
an structurally hierarchical society, this can not happen unless conscious
interventions by the state system, to alter the normal processes and existing
patterns, are made through public action. Ò There is nothing as unequal as the
equal treatment of unequalsÓ and therefore the state system has an obligation
to take positive steps for the amelioration of the historically deprived and
exploited sections of population.
Here an attempt has been made to compare the two systems, we had
discussed in the preceding pages, to bring out the differences and similarities
between the two systems in their conception, articulation and administration of
compensatory discrimination policies.
1.
Social Pathology : Caste and Race.
It
has been noted in the preceding
pages in an elaborate manner that what we know as the caste system of
India, which has been subjected to
second rate denunciations for so long, was originally known as Varna System
and was an arrangement for the distribution of functions in society [236],
just as much as class in Europe, but the principle on which distribution was
based in India was peculiar to this country. 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, and he had to cultivate the
spiritual temperament and acquire the spiritual training which could alone
qualify him for the task. The Ksatriya was a kshatriya not
merely because he was the son of a warrior and prince, but because he
discharged the duty of protecting the country and preserving the high courage
and manhood of the nation, and he had to cultivate the princely temperament and
acquire the strong and lofty samurai traing which alone fitted him for his
duties. 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.[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, (the Cosmic Spirit). Later on
the same system was perverted into a machine of exploitation resulting into
deprivations of a large sections of the population. It is the nature of human
institutions to degenerate, to lose their vitality and decay, and the first
sign of decay is the loss of flexibility and oblivion of the essential spirit
in which they were conceived. The spirit of the caste arrogance, exclusiveness
and superiority replaced the spirit of the duty under Varna system, and caste system became the synonym of
abominable thraldom and human injustices under which a substantial class of the
people had been groaning for
centuries. It was this realism of Indian scene that led to the adoption of
protective discrimination progammes under specific and elaborate provisions of
Indian Constitution.
The
racism of the United States vintage, has had a different course altogether. In
constrast to the ideal beginning of Varna system, what one finds in the U.S.
system is abominable slave system, wherein the Negroes in Africa were
hunted and caught like wild beasts
chained together and brought over to America. Vast number of such slaves died
even before they could reach their destinations at American coasts. Specific
thing about American slavery was that it was exclusively a Negro slavery. Most
of the features that characterised it were connected with the race and not
status. A consistent overworking, flogging and disruption of families due to
sale of slaves were the worst aspects
of it. Frederick, Law Olmsted, visited one of the first rate cotton
plantations in Mississippi. He found a large and handsome mansion; nearly
fourteen hundred acres planted to cotton, corn and other crops; and two hundred
hogs. Of the one hundred thirty
five slaves, nearly seventy worked in the fields, three were mechanics and nine
were house of stable servants. They laboured from dawn to dark, with Sundays
and sometimes Saturdays free. In summer the hoe gang thus spent sixteen hours
in plodding labour, with one short interval at noon for rest. The food
allowance was a peck of corn and four pounds of pork apiece each week, supplemented
by vegetables, eggs and poultry grown by the slaves themselves. Every Christmas
molasses, coffe, tobacco, and calico were generously distributed. The Negroes
got their own fuel for their little cabins from a wooded swamp, where on
Sundays they buy small comforts.
This
was a plantation of better sort, Olmsted found plantations where slavery was
harsher and more brutish. The lot of indigenous people, which Americans called
Red Indians (or simply Indians) was no better. Basically nomads these
indigenous people refused to work under the conditions of slavery. And in the
subsequent years they were literally wiped out. 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. In the
later half of 20th century benign discrimination kind of a thing was
read into the 14th amendment and protective provisions enforced for
the upliftment of these exploited sections of the U.S.population.[238]
The
contrasts between the social history of benign discrimination in India and
U.S.A. are so obvious. In one, the beginning was an ideal one, in the other the
very start of the social system was abominable and depraved. While in India,
there was little inequality in terms of
principles at least, in as much as the people belonging to fourth Varna
were considered as part of the whole, in U.S. the Church continued to debate
well into 20th century
whether the blacks and Indians have souls at all ? In the perverted
caste system people were exploited in the name of religion, as their conditions
were attributed to their ÔPrarabdhaÕ or destiny, in U.S. the slave system was
justified in economic terms, being beneficial to both the masters and slaves,
as it protected the workers in unemployment, sickness and the old age, making
masters chivalrous and the slaves loyal and Christianised the heathen people
and gradually elevated them.[239] The perpetrators of injustices under
the caste system were the people of their own kind, (belonging to the same
race) in U.S.A. the perpetrators of injustices under the slave system were a
different race.
2.
Benign
Discrimination Provisions.
Indian
Constitution drafted in mid 20th century has clear cut provisions for social justice and
benign discrimination. The Preamble makes explicit in bold letters, the resolve
of the system to constitute India into a Òsocialist and democratic RepublicÓ,
with a view to securing , inter alia,
social economic and political justice,
equality, liberty and above all, dignity of the individual.[240]
Translating these general principles into concrete legal propositions, part III
of the Constitution guarantees certain fundamental rights to the individual which are not all negative in character
but envisage positive state action. . Among these rights, the right to equality
in its various facets, including the authorisation of the state to take
affirmative action for the benefit of the backward classes,[241]
the scheduled castes and the scheduled tribes, abolition of untouchability,[242]
prohibition of traffic in human beings, and prohibition of employment of children in facotries[243]
are clearly representative of egalitarian as opposed to meritarian concept.
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. The directives
in no uncertain terms require the state, inter alia to promote the welfare of
the people by securing and protecting a social order in which justice, social
economic and political, should inform all the institutions of national life, to
rduce economic disparities, to make available adequate means of livelihood; to distribute the ownership
and control of material resources so as to subserved the common good; to
operate the economic system in such a way that it does not result in the
concentration of wealth and means of production[244]
to the common detriment; to protect health and strength of workers and children
of tender age against abuse; to provide for legal assistance and aid, to
provide right to work, to education and to public assistance in cases of unemployment, old age, sickness and
diablement and in other cases of undeserved want; to secure just and humane
conditions of work and provision
of maternity relief; to provide for living wages and conditions of work
ensuring decent standard of life and full enjoyment of leisure and social and
cultural opportunities; 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; and to raise the level of
nutrition and standard of living
and public health.[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.
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.[246]
It also directs for their induction into state services and provides special
administrative safeguards for them. 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. Special provisions have also been made
for such minorities as Anglo Indians.
In
the U.S. , on the other hand the
Fourteenth amendment provides that
ÒAll persons born or naturalised in the U.S. and subject to the jurisdiction
thereof are citizens of U.S. and states wherein they reside. No state shall
make or enforce any law which shall abridge the privilege and immunities of
citizens of U.S., nor shall any state deprive any person of life, liberty or
property, without due process of laws, nor deny to any person within its
jurisdiction the equal protection of laws. 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. Fifth
amendment contains a due process clause, which seeks the same ends as the equal
protection 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.
There
is clearly an absence in the United StatesÕ Constitution, 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. And this was accepted by
Justice Powell in so many words when he remarked that Ònothing 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. 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. 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. The overall tenor of the Indian
Constitution offers much support to interpret equality as permitting protective
discrimination, even at the cost of an individualÕs right, who have not been a
victimiser. In U.S. on the other hand, the Constitution contains no comparable
language helpful in deciding whether equal protection clause permits or
proscribes protective discrimination to racial minorities. 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.S. Constitution.
3.
Group Right
vs. Individual Right.
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 citizens[247]
or for the scheduled castes and scheduled tribes, reservations of appointments
or post in favour of any backward class of citizen;[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 tribesÉ in the making of appointments to services and posts. In view of these express
provisions no one can assert that the right to equality is always an individual
right.
In
the U.S. on the other hand the language used in the Equal Protection clause can
plausibly be used to defend both, the claims of the individual equality as well
as the claims of the disadvantaged groups. But the whole concept of legal
rights has been developed in the United States in individual terms. 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. In the United
States in the absence of constitutional language used to defend group claims,
(as used in Article 15 (4) and 16 (4) of Indian Constitution), the deprivations
of individual rights on the basis of group characteristics, race, religion,
national origin is nevertheless treated in law as a problem of protecting the
rights of an individual. It is not that only the constitutional and legal
language used in the United States, in Fifth, Thirteenth and Fourteenth
amendment, in Civil Rights Act 1964, in Voting Rights Act 1965, is used as
suggestive of a colourblind theory, even the recent philosophical
discussions on the problems of justice ignores the problem of justice for the
groups.
The
majority opinion in the United States of America, appears to be very
uniform on their individual rights approach. George
Gallup, remarked sometime back that from the Public opinion in todayÕs America,
one finds a striking degree of consensus against quotas and special preference.
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.[249]
It seems however, that there is nothing like an emerging national consensus
that has appeared in America on the permissibility of quotas. There are competing
arguments justifying both the
individual and groups rights approach.
Prof.
Dworkin, clearly rejects the group rights approach for the purpose of
redressing past injustices. According to him, Òaffirmative action programme
seems to encourageÉ.a popular
misunderstanding, which is that they assume that racial or ethnic groups are
entitled to proportionate shares of opportunities, 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. That is a plain mistake, the programmes are not based on
the idea that those who are aided are entitled to aid, but only the strategic
hypothesis that helping them is now an effective way of attacking a national
problem, i.e. the problems of racial consciousness.[250]
4.
Policy vs Rights
Approach.
In
India the popular perception about benign discrimination, and that has been
noted in the preceding pages, is that, since the scheduled castes, scheduled
tribes, or other backward classes
for that matter, have been subjected to all kinds of discrimination for hundreds of years and that
has left them socially and educationally backward. They are born in unequal
conditions and die in those conditions. These lowliest and the lost people were denied access to wells, temples,
schools and other places and asked to perform unclean and impure tasks without
which their very existence and continuance would have been impossible.[251]
These inhabitants of the less visible area of humanity were socially oppressed,
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.
An uneven socio-economic landscape hardly gave them the joy of equal
opportunity and development or draw forth their best from man power resources.
Justice
demands that historican
deprivations of these people be repaired and special protective measures be provided
to them so as to eliminate their disabilities. So far so goo. 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, which sanctions
such a conclusion. The provisions for protective discrimination have been held
to be enabling provisions . They do not impose an obligation but merely leaves
it to the discretion of the
appropriate government to take suitable action if necessary.
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. This at once raises the temperature of the debate and forces
people to adopt intransigent positions. Understandably, they find it far more
difficult to yield on what they believe, or are led to believe to be matters of
right and Justice than they would, on matters of utility of policy. 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.[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. Policies unlike rights
are not absolutes; they have to be examined in terms of costs and benefits. We may not always be able to
measure these , but that should not
prevent us from trying to form clear judgements about them. Both costs
and benefits should be taken into account in assessing any policy of affirmative action.
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, but that it does not do as a matter of right. Its continuance is
socio-political life is one thing and its legitimacy is altogether a different thing. 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.
In
United States on the other hand the case for reverse discrimination has
consistently been made out in the name of policy and utility, rather than in
the language of rights. The Òquotas for disadvantaged groups are best viewed
as matters not of right but of
policyÓ. The strongest argument in support of reverse discrimination are made
not on grounds of rights and
justice but on those of policy and utility. Prof Dworkin rejects categorically
the assumption that racial and ethnic groups are entitled to proportinate
shares of opportunities and adds, that is a plain mistake, the programme are
not based on the idea that those who are aided are entitled to aid, but only on
the strategic hupothesis that helping them is now an effective way of attacking
a national problem.[253]
Among other things, adopting a
policy oriented approach allows a degree of freedom and flexibility in the
formulation and administration of such programmes.
The
philosophic debate that ensued in the wake of DeFunis and later after BakkeÕs
judgment make the above point a
bit clearer. DeFunis a white applied to the University of Washington Law
School, he was rejected though his test score and college grades were such that
he would have been selected if he had been black. DeFunis claimed that his
rights to equality under Fourteenth Amendment was violated. Prof. Dworkin met
the argument squarely. He maintained that
DeFunis has no Constitutional right, that the state provide him the legal
education of a certain quality. Nor does he have a right to insist that
intelligence be exclusive test of admission. 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, that is to say that intellectual standards are justified not because they
reward the clever but because they serve a useful policy.[254]
Prof
Dworkin sought to differentiate, between ÔEquality as a policyÕ and ÔEquality
as a rightÕ. According to him there are two different sorts of rights which a
member of a democratic society
deemed to possess, the first is the ÔRight to Equal treatmentÕ which is the
right to an equal distribution of some opportunity or resources or burden. The second is the ÔRight to treatment as an equalÕ,
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. I
have two children, one dying from a desease that is making the other
uncomfortable, I do not show equal concern if I flip a coin to decide which
should have the remaining dose of
drug.. This example shows that the ÒRight to Equal TreatmentÓ is fundamental
and ÒRight to Equality is derivativeÓ.[255]
He returned to the same argument sometime later in an essay on BakkeÕs case,
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. He repeated the argument that Bakke had no Constitutional right that had been
violated by the medical school, when it denied him a place in the interest of
its affirmative action programme.
That programme was good one as it
served a useful policy and although it might cause disappointments or even
hardships to the individual, but it
did not violate his constitutional right.
The
above argument is no doubt a very convincing one, but Prof. Dworkin makes the
concept of ÒEquality of OpportunityÓ to stand on its head when he concludes
that the ÔRight to Equal TreatmentÕ is the principal right and Ôright to
equalityÕ a derivative right. 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 that does not make the derivative right a principal
right and a principal right a derivative one. 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, on the grounds of merit, but the
principle of ÒEquality of OpportunityÓ is certainly a principal right that we
can not afford to devalue. 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.
It
may be noted in this context, that a similar kind of an argument was used by
Indian Supreme Court in the State of Kerala v. N.M.Thomas, wherein the exception
i.e. article 16 (4) was treated as the main provision and the main provision in
article 16 (1) just a derivative
principle, thus making the whole concept of equality to stand on its head. The
principal argument have been extensively dealt with elsewhere in this work,
however, a brief review would not be out of place here. Article 16 (1) of
Indian Constitution provides that
ÒThere shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the state. 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. For long it has been the considered opinion of the
Supreme Court of India that article 16 (4) is an exception (i.e. a derivative
principle) of the main provision
(i.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. The departure from equality i.e. from the main principle of ÒEquality of
OpportunityÓ enshrined under article
16 (1) could be permitted only to the extent mentioned in clause 4 of
article 16. This clause cannot
logically be read as
completely excluding or ignoring the right of other citizens. If unlimited
reservations were permissible say to the extent of 80 percent that would have
the effect of effacing the principal provision i.e. article 16 (1), giving
primacy to the exception clause and by logic the derivative provision over
principal provision.
But
in Thomas case, 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). As such the state is not confined on to the method of reservations for
encouraging the backward groups in the area of public employment. It is free to
chose any means to achieve equality of opportunity for these backward classes.
Justice Mathew observed, that ÒArticle 16 (4) is capable of being interepted as
an exception of article 16 (1), if the equality of opportunity visualised in
article 16 (1) is sterile one, 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. If Equality of opportunity
guaranteed by article 16 (1) means
effective material equality, then article 16 (4) is not an exception to article
16 (1). 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.Ó Elsewhere in the judgement Justice
Mathew expressed the opinion that the expression in article 16 (4) ÒnothingÓ 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,
but falls outside it, it has not
really carved out an exception but has preserved a power untrammelled
by other provisions of the article. 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, however, since article 16
(4) is not controlled by 16 (1), the amount of reservations could go beyond 50
percent. This was said to be the ÒPositive EqualityÓ.[256]
The
minority opinion was that it was dangerous to authorise the State to give
preferences outside the protective clause. The minority argued that if inroads were allowed into the
equality notion beyond those permissible under the exception clause, not only
that the ideal of merit, efficiency of services and absence of discrimination
in the sphere of public employment would be obvious casualties, but the concept
of equality of opportunity shall also be undermined.
Going
back to Prof DworkinÕs argument, it
is true that there is no
absolute right of merit and that merit itself is contextual thing, 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, objectives and policies; 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. The
rapid economic growth that we have achieved is in a large measure, is the
result of this merit alone. American democracy from the very beginning has
generally been meritarian in enterprising in character. The Horatio Alger
stories of rising from rags to riches, the tales of how the west has won by the
sheer individual persistence and
determination and accounts of early settlers, their courage and
conviction are all part of the popular lore that most American hold very dear. There has been Horatio
Algers in India as well and that too in
millions. The millions of refugees who crossed over from what is now the
territory of Pakistan, without any aid from the state and within a decade rose
to prominence and became the star performers of Indian economy. It shall be
very difficult to found such rags to riches story any where in the world. They
did not ask for sops from the state system in the form of preferential
treatment, but celebrated excellence. 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. 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.
5.
Concluding
Observations .
Going back to our theme of Equality and justice which we had taken up in the introduction, it may be observed that the human race in its quest of peace and prosperity and to control its destiny, has always been endeavouring to devise legal institutions of such character that may ensure a dignified place to every human individual. While the ancients sought the deliverance of human race in religion and God, the medieval societies slipped into hierarchical setting of institutions. The advent of modernity marked a comprehensive change in its outlook and the human race sought refuge in legal institutions to better its lot. The growing emphasis on justice and human rights the world over, during recent years, should be seen in this perspective. Philosophers like Dworkin and Rawls, therefore, have emphasized that the ÒRight to equal concern and respectÓ is the most fundamental of all rightsÓ. 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.
This
idea of Affirmative Action and adoption of policies of preferential treatment
in India in the form of
Reservations in government services, educational institutions,
legislative bodies etc and in the United States of America, in the form of
preferential treatment of blacks in jobs and educational institutions, embodies
the commitment of these societies to eliminate inequalities of status and
invidious treatment. The contents of
such policies differ in the two systems as the differing needs of the
socio-economic circumstances demand. However the basic commitment of quest for
just and equal socio-political order remain the same. The excluded ones due to
the emphasis on preferential
policies have raised some very valid objections as has been seen above, however
these very discontents shall prove to be the touchstone for testing the
commitment of these societies towards Justice and Equality.
XXXXXXXXXXXXXXXXXX
List of Cases
1. Akhil Bhartiya Shoshit Karmachari Sangh Rlys v. Union
of India,1981 (1) SCC 246.
2. Ashok Kumar Thakur v. State of Bihar, AIR 1996 SC 75.
3. Ajit Singh v. State of Punjab, AIR 1999 SC 3471.
4. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC
802.
5. Brown v. Board of Education, 347 US 483 (1954)
6. Chamraja v. State of Mysore, AIR 1967 MYS 21.
7. Chhoteylal v. State of U.P., AIR 1979 ALL 135.
8. Chitra Ghosh v. Union of India AIR 1970 SC 1050.
9. Chitralekha v. State of Mysore, AIR 1964 SC 1823.
10. Dayaram v. State of Haryana , AIR 1974 P & H 270.
11. D.N.Chanchala v. State of Mysore, AIR 1971 SC 1762.
12. Davis b. Board of School Commrs 402 U.S. 33 (1971)
13. DeFunis v. Odegaard, 416 US 312 (1974)
14. Devadasan v. Union of India AIR 1966 SC 179.
15. Douglas v. California 372 U.S. 353 (1963)
16. Fatehchand v. State of Maharashtra, AIR 1977 SC 1825.
17. Frank v. Bowman Transportation company, 434 US 747
(1975)
18. General Manager Southern Railways v. Rangachari, AIR
1962 SC 36.
19. G.Michael v. S Venkateshwar, AIR 1952 Mad 474.
20. Griffin v. Illinois 351 US 92 (1955)
21. Gurinder singh v. State of Punjab, AIR 1974 P & H
125.
22. Hariharan Pillai v. State of Kerala, AIR 1968 Ker 42.
23. Harnandez v. Texas 347 U.S 475 (1954)
24. Inder Prakash v. Dy Commer of Delhi AIR 1979 Del 87.
25. Indira Gandhi v. Rajnarayan, AIR 1975 SC 2279.
26. Indra Sawhney v. Union of India, AIR 1993 SC 477.
27. Indra Sawhney v. Union of India, AIR 2000 SC 498.
28. Jacob Mathew v.
v. State of Kerala, AIR 1964 Ker 39.
29. Jagdish Rai v. State of Punjab, AIR 1977 P & H 52.
30. Jagdish Saran v. Union of India , AIR 1980 SC 192.
31. Jaisinghani v. Union of India, AIR 1967 SC 927.
32. Janaki Prasad Parimoo v. State of J.K., AIR 1973 SC
930.
33. J.C.Malik v. Union of India, AIR 1995 SC.
34. Jolly George v. State of Kerala, AIR 1974 Ker 178
35. K.C.Vasanth Kumar v. State of Karanataka, 1985 SCR
Suppl 352.
36. Keshavanand Bharati v. State of Kerala, AIR 1973 SC 1461.
37. K.S. Jaishree, v. State of Kerala, AIR 1976 SC 2381.
38. Lau v. Nichols 414 US 563, (1974)
39. M.A.Rasheed v. State of Kerala, AIR 1974 SC 2249.
40. Loving v. Virginia, 388 U.S. 1 (1967).
41. Maneka Gandhi v. Union of India (1978) 1 SCC (248)
42. Minerva Mills v. Union of India, AIR 1980 SC 1789.
43. M.R.Balaji v. State of Mysore, AIR 1963 SC 649.
44. North Carolina State Board of Education,v. Swann 402
US 43.
45. Periakaruppan v. State of Tamilnadu AIR 1971 SC 2303.
46. Plessy v. Ferguson 163 U.S 537 (1896).
47. P.Sagar v. State of Andhra Pradesh, AIR 1968 AP 166.
48. P Sudarshan v. State of M.P. and others, AIR 1958 AP
569
49. Preeti Shrivastava v. State of M.P. And others, (1999) & S CC 120
50. Ramkrishna Singh v. State of Mysore, AIR 1960 Mys.,
338.
51. Ramana v. I.A. Authority of India, AIR 1978 SC 1628.
52. Ramesh Chander v. State of Punjab AIR 1966 Punjab,
466.
53. Regents of University of California v. Allan Bakke,
438 U.S. 265, 57 L. Ed. 2nd
750.
54. Shelley v. Krammer, 334, U.S. 1 (1948)
55. Schlesinger v. Bellard, 419 U.S. 351 (1974)
56. S.H.Partha v. State of Mysore AIR 1961 Mys, 220.
57. Spottswood Thomas Bolling v. Melvin Sharp , 347 U.S.
497.
58. S.R. Bommai v. Union of India AIR 1994 SCC 1.
59. State of Andhra Pradesh .v. U.S. Balram, AIR 1972 SC 1775.
60. State of Jammu and Kashmir v. T.N.Khoza, AIR 1974
SC 1
61. State of Kerala v. N.M.Thomas, AIR 1976 SC 490.
62. State of Madras, v. Champakam Dorairajan, AIR 1951 SC.
226.
63. State of
Punjab, v. Hiralal AIR 1971 SC 1777.
64. State Of Punjab v. R.K.Sabharwal and others,
Janasatta, 10Feb, 1995.
65. State of U.P. v. Pradip Tondon, AIR 1975 SC 563.
66. Sweatt v. Painter 339, U.S. 629 (1950)
67. Union of India v. Veerpal Singh chauhan, The Hindustan
Times , 11oct 1995.
68. United Steele Workers of America v. Weber, 99 SC
Report 272 (1979)
69. Washington v. Davis 426 U.S. 229 (1975)
70. Wendy Wygant v. Jackson Board of Education, 476 US
267.
71. Wealth Commissioner of Income tax v. G.S.Rao, AIR 1996
SC 1995.
72. Yick Wo v. Hopkins, 118 U.S. 356 (1886)
XXXXXXXXXXX
List of Articles and From Journals and
periodicals.
1. Agrawal, S.K : Protective Discriminatin for Backward Classes, in India, , M.Imam, (Ed) Minorities and the Law, New Delhi, Indian Law Institute, (1972)
XXXXXXXXXXXXXX
BIBLIOGRAPHY
1. A.L.Bahsam : The wonder That was India,
Oxford University press, New Delhi 1990
2. A.C.Kapoor : Major Constitutions of the World, S.Chand & Co New Delhi 1998.
3. A.R.Wadia : Contemporary Indian Philosophy.
4. Anant S.S : The Changing Concept of Caste in India,
Vikas Publications, New
Delhi, 1972.
5. Arjun Dev : History of Civlization, NCERT, Pub, New
Delhi, 1986.
6. Andre Betielle: Social
Inequality, Penguine Books India New Delhi,1974.
Caste Old and The New, Asia Publishing House
Bombay, (1969)
7. Aurobindo : IndiaÕs
Rebirth, Institut de recherchŽ evolutive, Paris, 2000.
8. Allan Nevin and Henry
Steele Commager: Pocket History of America, 1951.
9. Alphaeus Thomas Mason & William M Beany, American
Constitution, Prentice Hall
Inc, Englewood Cliffs, 1976.
10. Bernard Schwartz,
American Constitutional Law, 1976.
11. Bipan Chandra: IndiaÕs
Struggle for Independence, Penguine Books India Ltd New
Delhi. 1991.
12. B.Shiva Rao : Framing of IndiaÕs
Constitution.N.M.Tripathi Bombay, 1967.
13. Bailey F.G. : Caste and Economic
Frontiers, Oxford Univesity Press, Bombay 1960
13. Brandt, R. : Social
Justice, N.J.Prentice Hall, Inc, Englewood Cliffs (1962)
14. D. Miller, Social
Justice, Oxford University Press,
Bombay, 1976.
15. Dumont L, Homo Hierarchichus, Chicago University
Press, Chicago, 1972.
16. D.D.Basu :
Commentaries of Indian Constitution, N.M.Tripathi Bombay (1975)
17.F.A.Hayek : Law, Legislation
and Liberty: A Mirage of Social Justice
Chicago University Press, (1976)
18.Granville Austin: Indian Constitution : The cornerstone
of a Nation. (1966)
Oxford University Press.
19.Harold A Gould: The Hindu
Caste System, Oxford University Press, London, 1969.
18.Harrison S. : India, The
most Dangerous Decades, Princeton University Press 1960
19.J.H. Hutton : Caste In India,
Oxford University Press, Bombay,
1963.
20.J.L.Nehru :
Glimpses of World History, Oxford University Press, New Delhi 1989
21 John Rawls : A Theory of Justice, Oxford
University Press, London, 1972.
22.K.M.Panikkar: Hindu
Society At Cross-roads International, Book House, New Delhi
1988.
23.K.P.K Shetty, Fundamental Rights and Socio-economic
justice under Indian
Constitution, 1969.
24. M.Ramajois, Legal and
Constitutional History of India, N.M.Tripathi, Bombay, 1990
25. M.N.Shriniwas, Caste In Modern India, Asia Publishing House
1964.
26. Marc Galanter, Law and
Society in Modern India, Oxford University Press, New
Delhi, 1992.
27. Nandkishore Acharya, The
Culture Polity of Hindus, Richa Publishers, Bikaner 1988
28. N.K. Bose, Structures of
Hindu Society, Orient Longman, New Delhi 1975.
29. P.V. Kane, History of
Hindu Dharmashastras, Bhandarkar Research Inst, Pune, 1932.
30. Ronald Dworkin, Taking
Rights Seriously, Harvard University Press, 1997.
31. Ronald Dworkin, A Matter of Principles, Harvard
University Press, 1985.
32. R.K.Gupta, Justice
Unequal but Inseparate, New Delhi, 1982.
33. R. H. Tawney, Equality,
(1965)
34. Rajni Kothari, Politics
in India, Orient Longman, Hyderabad, 2002.
35. Rajni Kothari, Caste and
Class in Indian Society, Orient Longman, New Delhi, 1970
36.Robert E Goodin, and
Philip Petit, A Companion to contemporary Political,
Philosophy,
Blackwell, Oxford, 1995.
37. S.D.Gupta, Justice and
Political Order in India, 1978.
38. Sukhdev Khanna,
Reservations & Its Implications, Jain Books, New Delhi 1994.
39. Seervai. H.M.,
Constitutional Law of India, N.M.Tripathi, Bombay, 1993.
40. Sarvapalli Radhakrishnan,
Eastern Religion and Western Thought, Rajpal and Sons
New Delhi, 1970.
41. Sarvapalli Radhakrishnan,
East and The West, Rajpal and Sons New Delhi, 1970
42. Upendra Baxi, Democracy,
Equality and Freedom, Oxford University Press,
New Delhi, 1993.
43. V.N.Shukla,
Constitutional Law of India, Eastern Book Company, Lucknow, 2000.
44. V. C. Mishra, Reservation
Crisis in India, Bar Council of India Trust, 1991.
XXXXXXXXXXXXXXX
[1] Constitution of India, H.M.Seervai, N.M.Tripathi, Bombay, 1989.
[2] Declarations of the Rights of Man, 1789.
[3] A.C.Kapoor, Principles of Political Science, S .Chand and Company, New Delhi, 1989.
[4] Ethica Nicomchea, Book V Chapter VI, In the works of Aristotle, Vol-XII Sir David Ross 1966 Reprint.
[5] Aristotle, Ibid.
[6] H.L.A.Hart, The Concept of Law, (1961) p. 155.
[7] Upendra Baxi, Democracy, Equality and Freedom, Oxford University Press, New Delhi, 1992.
[8] Justice P.B.Sawant, in Indira Sawhney v. Union of India, AIR 1993, SC 477, Para 23.
[9] Varna system was the Traditional way of classifying people, in Ancient India, According to their occupation , for details see chapter III Indian Panorama of Equality and Justice Ancient of Modern.
[10] KPK Shetty, Fundamental Rights and Socio-economic Justice in Indian Constitution (1969) for detailed analysis of caste system, See G.S. Ghurye, Caste and Class in India, N.M.Tripathi Bombay (1967) Andre Betielle, Castes, Old and the New (1969).
[11] Marc Galanter, Law and Society in Modern India, Oxford University Press, 1992.
[12] Dr. Parmanand singh, Equality, Reservation and Discrimination in India, Deep and Deep Publications, New Delhi, 1985.
[13] A Wonder that was India, A.L.Basham, Roopa and Company, N.D.New Delhi, India, 1990
[14] Rajni Kothari, In India , Orient Longman, Hyderabad 2002.
[15] Rajni Kothari, Ibid.
[16] Rajiv Dhavan, in the Introduction to Marc GalanterÕs ÒLaw and Society in Modern IndiaÓ Oxford University Press, 1992.
[17] Pursuing Equality in the land of Hierarchy : An assessment of IndiaÕs Policies of Compensatory discriminatin for his historically disadvantaged groups, Marc Galanter , In Law and Society in Modern India, Oxford University Press, 1992.
[18] Marc Galanter, op cit f.n. 12.
[19] According a survey conducted by Bar Council of India, 90 percent of the compensatory policies benefits are cornered by 3 percent of the elite among the backwards, See Bar Council of India Review, Vol XVII, 3 and 4, 1991, distributors Universal Book Traders New Delhi, 1991.
[20] See Ajit Singh v. State of Punjab, AIR 1999, SC 75.
[21] See Sukhdev Khanna, Reservations and its implications, Jain Law Agency, New Delhi, 1994.
[22] Marc Galanter, ibid, note 11.
[23] Oliver Brown v. Board of Education, 347 US 483., Spotts Wood Thomas Bolling v. C.Melvin Sharp, 347 US 497 . Marco Defunis v. charles Odegaard 416 US 312, and Regents of University of California v. Allan Bakke, 438 US 265.
[24] Mason and Beany,American Constitutional Law, Prentice Hall Inc Englewood Cliffs, New Jeresy, 1978.
[25] Barnard Schwartz, American Constitutional Law, 1976.
[26] Oliver Brow et al v. Boad of Education of Topika, et al, 347 US 483, 98 Law Edition 873.
[27] State of Kerala v. N.M.Thomas, AIR 1976 SC 490.
[28] 419 US 351 (1974)
[29] Parmananda Singh, Equality, Reservation and Discrimination in India, Deep and Deep Publications 1985.
[30] A Guide to modern Politics.
[31] Harold J.Laski, A Grammar of Politics.
[32] Alexis De Toqueville said that men have greater passions than for liberty. J. S. Mill realized the importance of encouraging the widest possible diversities of mind and taste. He argued that the best state for human nature is that in which while no one is poor,,no one desires to be rich. Although he urged that social policy be directed to suppress to increasing equality, he never intended to convey the idea that it should suppress varieties of individual character and genius. 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. 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.
[33] Pulin B Nayak, ÒOn Equality and Distributive JusticeÓ Economic and Political Weekly, Annual Number March 1991.
[34] Dallmayer, Functionalism, Justice and Equality, (1967), 78 Ethics 10.
[35] The Idea of Equality, Bernard Williams, In a Ò Companion to Contemporary Political PhilosophyÓ Edited by Robert Goodin and Philip Petit, Blackwell, Oxford 1995.
[36] Democracy, Equality and Freedom, Edited by Upendra Baxi, Oxford University Press, New Delhi 1993.
[37] Complex Equality, By Michael Walzer, in ÒA companion to Contemporary Political PhilosophyÓ edited by Robert Goodin and Philip Petit, Blackwell, Oxford, 1995
[38] Rashdall Hastings, The Theory of Good and Evil, (1907) Vol I, 223-224.
[39] Ibid, page-147-148.
[40] See Bernard Williams, AO, Òthe Idea of EqualityÓ in ÒA Companion of contemporary Political Philosophy, op cit f.n.6.
[41] Reservation Crisis in India, Bar Council of India Trust, Universal Book Traders, New Delhi, 1991. Also see Taking Rights Seriously by Ronald Dworkin, Harvard University Press, 1997.
[42] A.C. Kapoor, Principles of Political Science, S Chand and Company, New Delhi, 1984.
[43] Ibid.
[44] Harold Laski, A Grammar of Politics.
[45] Oxford University Press, 1972.
[46] Pulin B Nayak ÒOn Equality and Distributive JusticeÓ, Economic and Political Weekly, Annual Number, March 1991.
[47] A Theory of Justice, John Rawls, Oxford University Press, 1972.
[48] A Theory of Justice,P.100.
[49] Ibid, p/511.
[50] A Companion to Contemporary Political Philosophy, op cit f.n. 6.
[51] Ibid.
[52] constitution of Liberty , Routeledge and Kegan Paul, London, (1960)
[53] Capitalism and Freeom, Milton Friedman, Chicago University Press, (1960)
[54] Anarchy State and Utopia by R.Nozick, Basil Blackwell, Oxford (1974)
[55] Against Equality, Mc Millan London (1983)
[56] Constitution of Liberty, (1960) p. 87.
[57] Against Equality,By William Letwin (1983) Mc Millan London.
[58] P.B.Nayak, On Equality and Distributive Justice, op cit f.n. 2.
[59] F.A.Hayek, constitution of Liberty, p.42.
[60] Agnes Heller, Labour and Human Needs in a society fo Associated Producers in Tom Bottomore (ed) Interpretation of Marx, Basil Blackwell, Oxford 1988.
[61] Karl Marx ÒCritque of Gotha Programme, in selected works by Karl marx and F Engels, Progress Publishers, Moscow 1975.
[62] Ibid.
[63] Ibid.
[64] P.B.Nayak, op cit f.n. 6.
[65] R.H.Tawney, Equality, Unwin London (1964)
[66] Ibid.
[67] J.A.Schumpeter, Capitalism, Socialism and Democracy, Allen and Unwin, London (1976)
[68] Taking Rights Seriously, Ronald Dworkin, Harvard University Press, 1997
[69] ÒEqualityÓ by R.H.Tawney,Unwin, London (1931).
[70] Justice, Means versus Freedom, Philosophy and Public affairs, 19: 111-21.
[71] See V.C. Mishra, Bar Council of India Review, Vol XVII, New Delhi 1990.
[72] M.P.Singh, Reservation Crisis in India (Ed) V.C.Mishra, Universal Book Traders, New Delhi, 1991.
[73] BakkeÕs Case : Are Quotas Unfair, in ÒA Matter of PrincipleÓ, Ronald Dworkin, Harvard University Press,1985.
[74] Quoted in V.C. MishraÕs Reservation Crisis in India, Universal Book Traders, New Delhi, 1991.
[75] BakkeÕs Case : Are quotas unfair, in ÒA Matter of PrincipleÓ, By Ronald Dworkin, Harvard University Press, 1985.
[76] As Quoted in V.C.MishraÕs Reservation Crisis in India, Universal BookTraders, New Delhi, 1991.
[77] Economic and Political Weekly, Samiksha Publications Bombay, March 1991.
[78] Jurisprudential Basis of Reservations, in Bar Council of India Review,Vol XVII, New Delhi, 1990.
[79] See B.Shiva Rao, The Framing of Indian constitution, Vol.III N.M.Tripathi, Bombay, 1967.
[80] Law and Society in Modern India, By Marc Galanter, Oxford University Press, 1989.
[81] Ibid.
[82] Quoted by Prof M.P.Singh, in His Jurisprudential Basis of Reservations, op cit f.n. 47.
[83] Ronald Dworkin, BakkeÕs Case : Are quotas Unfair, in ÒA Matter of PrincipleÓ, Mass Harvard University Press, Cambridge, 1985.
[84] Ronald Dworkin, op cit, f.n. 52.
[85] S.S.Dhavan, Indian Jurisprudence and the theory of State in ancient India, Mussorie, National academy of Administration, Printed Lectures, 1962.
[86] Shrimadbhagwadgeeta, 2/47.
[87] The Cultural Polity of Hindus, Dr. Nandkishore Acharya, Richa Publishers, Bikaner, India.(1969)
[88] According to Manusmriti (73/69), five kinds of debts, an individual owes to the social system. They are Dev Rin,(Debt of Gods) Rishi Rin,(Debts of the teachers and sages) Pitr 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).
[89] Atmavat Sarvabhuteshu yah pashyati sah Panditah, (Hitopadesh, Vishnu Sharma)
[90] Dr. S. Radhkrishnan, Eastern Religion and Western Thought, Rajpal and Sons New Delhi, 1971.
[91] Rigvedadi Bhashya Bhumika, Varnashrama Dharma Vishay, Chaukhamba Publishers Varanasi, 1975.
[92] Rigveda, Purush Sukta.
[93] Ibid.
[94] P.V. Kane, History of Dharmashastras, {1968} Vol Ð I Bhandarkar Research Institute Poona.
[95] Ibid.
[96] Yajurveda.
[97] Manusmriti, 1/87
[98] Ibid, 1/89
[99] Nirukta 2/1/4
[100] Rigvedadi Bhashya Bhumika, Swami Dayananda Saraswati, Chaukhamba Prakashan Varanasi, 1975
[101] Ashtadhyayi, 4/2/59
[102] Manusmriti, 1/88
[103] For similar views see Etareya
Brahmana 8/2
[104] Manusmriti, 13/1/53
[105] Ashtadhyayi, 2/1/19
[106] Vasudha Smriti, for similar views
see Tandya Brahman.
[107] Manusmriti 1/90
[108] Satyartha Prakash, Swami Dayananda Saraswati, Chaukhamba Prakashan, Varanasi, 1968.
[109] Unadi Sutra Path, 2/19
[110] Taitriya Brahmana, 3/2/39
[111] Manusmriti, 1/91
[112] M.Rama Jois, (1984) Legal and Constitutional History of India, vol. I N.M.Tripathi Bombay.
[113] Rigveda, IX, 112.3
[114] Rigveda III, 44.5
[115] Manusmriti, 10/65
[116] Manusmriti 10/66
[117] Manusmriti 4/45
[118] Manusmriti 9/335
[119] Shankaracharya, born in 8th century, 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.
[120] One of the two all time great Epics of India, based on a story of Mahabharat War supposed to have been fought more than five thousands years back.
[121] Mahabharat, Van parva, III/75-84.
[122] M.N.Sriniwas: Caste in Modern
India, Asia Publishing House Bombay, 1962
[123] L.P.Sharma, Ancient History of
India, Calcutta, 1978.
[124] M.Ramajois, {1984} Legal and
Constitutional History of India, Vol-I , N.M.Tripathi, Bombay.
[125] Eastern Religion and Western Thought, Rajpal And Sons, New Delhi, (1971)
[126] Verinder Grover; Political Thinkers
of India, Deep & Deep Publications, New Delhi, 1998.
[127] Marc Gallanter, Law and Society in Modern India, Oxford University Press, New Delhi, 1990, P.185.
[128] Ibid.
[129] Indian Parliament is a Bicameral Legislature. Rajya Sabha is the upper chamber of the Parliament having 250 members elected indirectly for 6 years. Lok Sabha is the lower chamber, consisting of 544 members elected directly for five years.
[130] M.P.Jain, Indian Constitutional law, Wadhwa and Co Nagpur, 1997.
[131] V.N.Shukla, Constitutional law of India, Eastern Book Company Lucknow, 1990.
[132] V.V.Giri v. D. Suri Dora, AIR 1959 SC 1318.
[133] M.P.Jain, Indian Constitutional law, Wadhwa and Company Pub, Nagpur, 1997.
[134] This has a long history, Mahatma Gandhi has undergone a long fast to protest against the Ramsay Mc Donald award, for separate electorate in 1932 resulting into Poona Pact, under which it was agreed to have joint electorate but reservations in legislative bodies. This particular provision was given concrete shape in the Government of India Act of 1935. See Bipan Chandra, Freedom Struggle. Oxford University Press, New Delhi, 1990.
[135] This has been effected vide, 79th Constitutional Amendment Act 1999, brought into force wef.25.1.2000.
[136] Article 330 and 332 of Indian Constitution.
[137] Article 15 (1), and 15 (2) of Indian Constitution.
[138] Article 17 of the Indian Constitution, also see the Protection of Civil Rights Act 1957.
[139] Dr. Parmanand Singh, Equality, Reservation and Discrimination in India, Deep and Deep Publications New Delhi, 1985
[140] M.R.Balaji v. State of Mysore, AIR 1963, SC 649.
[141] General Manager S.Rly v. Rangachari, AIR, 1962 SC 36.
[142] Ibid.
[143] M.R.Balaji, v. State of Mysore, AIR 1963 SC 649.
[144] B.Shiva Rao, Making of IndiaÕs Constitution, Vol-III.
[145] Justice Mathews articulated the concept of formal vs numerical equality, in his address to the Evening Faculty of Law, University of Delhi, on 25th Jan 1975. This was a Symposium on the Consitution of India, entitled ÒFundamental Rights and Distributive JusticeÓ.
[146] M.R.Balaji, v. State of Mysore, AIR, 1963 SC 649.
[147] Ibid.
[148] Dr. Parmanand Singh, Equality, Reservation and Discrimination in India, Deep & Deep Publications, New Delhi, 1985.
[149] P.Sagar, v. State of Andhra Pradesh, AIR, 1968 AP 166.
[150] Devadasan v. Union of India, 1964 (4) SCR 680.
[151] State of Keral v. N.M.Thomas, (1976) 2 SCC 310.
[152] H.M.Seervai, Constitutional law of India, N.M.Tripathi Bombay, 1993.
[153] In fact Justice Krishna Iyer qoted Justice Subba RaoÕs dissenting judgement from Devadasan v. Union of India,without mentioning the fact that this was dissenting judgment.
[154] Devadasan v. Union of India, (1964) 4 SCR 680.
[155] Ibid.
[156] Indira Sawhney v. Union of India, AIR 1993, SC. 477.
[157] Ibid.
[158] M.P.Jain, Indian Constitutional Law, Wadhwa and Company, Nagpur, 1997.
[159] Moosa v. Kerala, AIR 1960, Ker 355.
[160] See D.N.Chanchala v. State of Mysore, AIR 1971, SC 839.
[161] State of Andhra Pradesh v. P.Sagar, AIR 1968 SC 1367.
[162] Pradip Tondon v. State of U.P. AIR 1982.
[163] D.N.Chanchala, v. State of Mysore, AIR 1971 SC 1762.
[164] Indira Sawhney v. Union of India, AIR 1993 SC 477.
[165] State of Kerala v. N.M.Thomas, AIR 1976 SC 490.
[166] Devadasan v. Union of India, 1964 (4) SCR 680.
[167] Justice Krishna Iyer, supra f.n. 80.
[168] Constitutional law of India, H.M.Seervai, N.M.Tripathi, Bombay, 1993.
[169] H.M.Seervai, ibid. p.557.
[170] Jan-Satta, 13th June, 1994, New Delhi.
[171] Dr. Parmanand Singh, Equality, reservations and discrimination in India, Deep & Deep Publications New Delhi, 1985.
[172] The word Secular was added in to the Preamble by 42nd Amendment, 1975.
[173] See Articles 330 to 334 of Indian Constitution.
[174] V.N. Shukla, Constitutional Law of India, Easern Book Company, Lucknow, 1990.
[175] Article 38 of Indian Constitution.
[176] Article 39 of Indian Constitution.
[177] Article 41, 42 and 43 of the Constitution.
[178] Article 44 .
[179] Article 45.
[180] Article 40.
[181] Article 47 and 48.
[182] Article 50.
[183] Article 51.
[184] See Kameshwar Singh v. State of Bihar, AIR, 1962, SC 1116.
[185] 44rth Constitutional Amendment Act of 1978 abolished the Right to Property from Indian Constitution.
[186] M.P.Jain, Legal And Constitutional History of India, N.M.Tripathi, (P) Ltd Bombay, 1990.
[187] Allan Nevins and Henry Steele Commager, A Pocket History fo U.S. (Pocket Book) 1951.
[188] Jawahar lal Nehru, Discovery of India, Oxford University press, 1989.
[189] Allan Nevins, op cit, f.n.2. Also see J.H.Franklin, From Slavery to Freedom (1974)
[190] History of civilization, Arjun Dev NCERT New Delhi, 1986.
[191] Jawahar Lal Nehru, Glimses of World History Oxford University press, New Delhi 1989.
[192] Vidyaratna Swami Nair, History of America, Prakashan Kendra, Aminabad, Lucknow, 1977.
[193] Jawaharlal Nehru, op cit f.n.6.
[194] Allan Nevin,op cit f.n. 2.
[195] Ibid.
[196] Arjun Dev, History of Civilization NCERT New Delhi 1986.
[197] Bernard Schwartz, American Constitutional Law, 1976.
[198] Hall v. Decuir, 95 US 485 (1878) and Slaughter House cases.
[199] Mason and Beany, American Constitutional Law, Prentice Hall Inc Englewood Cliffs, New Jeresy USA. 1978.
[200] 163 US 537 (1886)
[201] Ibid
[202] Dissenting Judgement of Justice Harlan in Plessey v. Ferguson, op cit f.n. 15.
[203] Missouri ex rel Gains v. Canada, 305 US 337.
[204] Ibid.
[205] 339 US 629 (1950)
[206] 347 US 483 (1954)
[207] 163 US 573 (1896)
[208] ibid f.n. 21.
[209] Gaffin v. Maryland, 378 US 130 (1964), Watson v. Mephis, 373 US 526 (1963) State Atletic CommÕn v. Dorsay 359 US 533 (1959) Gayle v. Browder 352 US 903 (1956)
[210] Wright v. Georgia 373 US 284 (1963)
[211] Watson v. Memphis , Ibid f.n. 24.
[212] Cooper v. Aaron 358 US (1958)
[213] Bernard Schwartz, American Constitutional Law, (19760
[214] Plessey v. Ferguson, 163 US 537 ( 1896).
[215] John W Davis, appearing on behlf of states presented the historical data to press his claims. Also see Mason and Beaney American constitutional Law, prentic Hall Inc Englewood Cliffs New Jeresy 1978.
[216] Civil Rights Act, of 1964 specifically title VI and VII of the said Act.
[217] Yick Wo v. Hopkins 118 US 356 : Bayside fish flour co v. Gentry 297 US 422 : (1936) Patsone v. Pennsylvania 232 US 138 : Terrace v. Thompson 263 US 197 (1923) : Takahashi v. Fishgame Commission 334 US 410 (1948)
[218] See Robert OÕNiel Discriminating against discrimination and Zimmy Beyond Defunis :Disproportionate impact analysis and madated preference in law school admissions 54 NCL Review 317 (1976)
[219] Dr Parmanand singh, Equality, Reservations and Discrimination in India, Deep and Deep Publications New Delhi, 1985.
[220] 438 US 265 57 L.Ed 2nd 570.
[221] 99 Supreme Court Report 2721 (1979), For an analysis of Weber case se O.N Fiss ÒThe Supreme court 1978 term: A foreword 93 Harvard Law Review (1979) and Ronald DworkinÕs How to read civil Rights Act, in Taking Rights Seriously, Harvard Univesity Press, 1997.
[222] D.D.Basu, Shorter constitution of India, Wadhawa Publishers Nagpur, 1997.
[223] 163 US 537 (1896)
[224] 347 US 483 (1954)
[225] 99 Supreme Court Report 2721 (1979)
[226] 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.
[227] Ronald Dworkin, op cit f.n.42.
[228] John hart Ely, the Constitutionality fo Reverse racial Discrimination Ch Law Review 723 (1974), Also see Robert J Willey ÒA case for Preferential Admission, Howard Law Journal, 175 (1978).
[229] These arguments were more succinctly articulated in De Funis case See The Road Not taken Virginia Law Review 917 (1974)
[230] Posner, Defunis case and the Constitutionality of preferential treatment of racial minorities , I SC Review (1974)
[231] This argument was put forward by Justice Powell in Allan Bakke Judgment, 438 US 265.
[232] What did Bakke really decide? Ronald Dworkin in Takin Rights Seriously, Harvard University Press, 1997.
[233] Justice Krishna Aiyar, in the foreword to the ÒEquality, Reservations and Discrimination in IndiaÓ by Dr. Parmanand Singh, Deep and Deep Publications New Delhi. 1985.
[234] The competing arguments for and against compensatory discrimination have been analysed in Chapter IV, supra, Also see the introductory chapter for competing arguments.
[235] For details see chapter II.
[236] For details see chapter III.
[237] Aurobindo, IndiaÕs Rebirth, Institut de recherchŽ evolutive, Paris, 2000.
[238] For details see chapter IV.
[239] Allan Nevins and Henry Steele Commager, Pocket History of America 1959.
[240] Preamble to the Indian constitution, 1950.
[241] Article 14, 15 and 16 of the Indian Constitution.
[242] Art 17.
[243] Article 23 and 24.
[244] Article 38.
[245] See Generally the Directive Principles of State Policy.
[246] Article 334 of the Indian Constitution.
[247] Article 15 (3) and (4).
[248] Article16 (4)
[249] Nathan Glazer, ÒIndividual and Group Rights: Is there any way to resolve the conflictÓ in Human Rights (ed) Eugene Kamenka and Alice Erhsoon (1978)
[250] BakkeÕs Case, are quotas unfair, in Ronald Dworkin Ò A matter of PrincipleÓ Harvard University Press, 1985.
[251] KPK Shetty, Fundamental Rights and Socio-Economic Justice in Indian constitution, (1969).
[252] Andre Betielle, Distributive Justice and Institutional Well being, Economic and Political Weekly, Samiksha Publications, Bombay March 1991.
[253] BakkeÕs Case: Are quotas unfair, in Ronald DworkinÕs ÒA Matter of PrincipleÓ Harvard University Press 1985.
[254] Taking Rights Seriously, Harvard University press, 1997.
[255] Ibid.
[256] For an incisive critique of Justice MathewÕs argument, see H.M. Seervai, Constitutional Law of India, N.M.Tripathi, Bombay, 1993.