PROJECT ON

RESERVATIOIN POLICY IN INDIA AND THE AFFIRMATIVE

ACTIONS IN US

SUBMITTED TO

Faculty of Law
Jamia Millia Islamia, New Delhi

SUBMITTED BY
Mohd Suhail Siddiqui
LL.M. (Executive)
Roll No. – 17MLWE118
Semester – III

UNDER THE GUDANCE OF

Anku Sharma
Assistant Professor
Faculty Of Law, Jamia Millia Islamia, New Delhi-110025
November, 2018
1
 ACKNOWLEDGEMENT

First & foremost, I would like to thank my teacher Anku Sharma for giving me
opportunity to work on this research project named “ Reservation Policy in India and The
Affirmative Actions in US”. His guidance and support has been instrumental while making
my project on this important issue.

I would also like to thank all authors, writers, columnists and social thinkers whose
ideas and works have been made use of in my Project.

My heartful gratitude also goes to all staff and administration of Faculty of Law, JMI
for the infrastructure in the form of our library and IT lab that was a great source of help in
the completion of this Project. I also thank my friends for their precious inputs which have
been very useful in the completion of this Project.

I would also like to thank my parents, dear colleagues and friends in the University,
who have helped me with ideas about this work.

I hope you will appreciate my true work which is indeed a hard work and a result of my
true research and work.

Mohd Suhail Siddiqui

2
 TABLE OF CONTENTS

Page no.

1. INTRODUCTION 5
2. ARTICLE 14: A BRIEF INSIGHT 7
2.1 Valid Classification 8
3. ARTICLE 15 9
3.1 Is caste also a class? 11
3.2 Reservations in Educational Institutions 13
3.3 Reservations in Post graduate courses 15
4. ARTICLE 16 17
4.1 Landmark Judgments 18
4.2 The Mandal Commision Case 20
4.2.1 Brief History 20
4.2.2 The Mandal Challenge 20
4.2.3 Questions Posed Before The Supreme Court 21
4.2.4 Subsequent Amendments 24
5. AFFIRMATIVE ACTION IN USA 26
5.1 History 26
5.2 Development of Affirmative Action in USA 27
5.3 14th Amendment 27
5.4 Civil Rights Act, 1964 28
5.5 Working of Affirmative Action Policy 28
5.6 Judicial Decisions 29
5.7 Evaluation of the Affirmative Action Policy 31
6. AFFIRMATIVE ACTION IN INDIA & USA- COMPARISON 32
7. CONCLUSION AND SUGGESTIONS 34
8. BIBLIOGRAPHY 37
3
 RESERVATION POLICY IN INDIA (Critical Analysis)

ABSTRACT

The issue of Reservations in India has proved to be a tricky question, particularly when
considered from the viewpoint of both the Legislature as well as the Judiciary. Articles 15 and 16
of the Constitution of India form the very bedrock of Reservations in the matters of Education
and government jobs respectively. From the time when the Constitution came into force, these
two articles have proved to be a major cause of controversy and litigation at the Supreme Court
particularly regarding their scope and extent of application. This was inevitable, considering the
fact that their inclusion within the four corners of the Constitution had stirred significant
aberration amongst the members of the Constituent Assembly, since the use of the word “any
backward classes” seemed rather vague and had created an environment of uncertainty. No
method of identifying “Backward Classes” was laid down in the said Articles. It was only a
convincing speech from Dr. B.R.Ambedkar whereby the term was actually coined within the
meaning of Article 16.

The two Articles have subsequently come before the apex court in numerous decisions,
considering several issues regarding Reservations. This paper seeks to encapsulate the very
essence of these landmark judgments which have had a deep impact upon Indian society. It also
seeks to highlight some major considerations taken note of by the Mandal Commission which is
the very basis of Reservations in India today. The paper shall also briefly highlight the major
questions of law which subsequently arose before the Supreme Court in the Indra Sawhney
(Mandal Commission) case and the manner in which each question was considered by the court.
Without doubt, this is the most significant ruling of the apex court to date, regarding the
interpretation of “Other Backward Classes” under Article 16. In addition to the same, there have
been subsequent amendments under Article 16 of the Constitution of India. The author seeks to
touch upon these amendments, the opinion of the apex court regarding the same and the eventual
impact upon society at large.

4
1. INTRODUCTION

The Preamble of the Constitution of India lays down the ideals and principles which the
founding fathers of the nation sought to achieve by virtue of the provisions of the document
which the people gave to themselves on the Twenty-Sixth day of November 1949. It is
paramount to note that the Preamble is regarded as “a key to open the mind of the makers” of the
Constitution and thereby enunciates the purposes and rationale which may have exhorted the
Constituent Assembly to lay down a given set of provisions within the purview of the supreme
law of the land. The Preamble thereby implies the fact that the provisions of the Constitution are
to be read taking into account the principles so laid.

In light of the aforementioned statements, it is important to take note of the fact that the
Preamble guarantees to the people of the country equality of status and opportunity. It thereby
seeks to create a level playing field wherein every individual is given a fair opportunity of
proving his worth in the occupation which he seeks to pursue. This being the ideology embedded
in the Preamble, it finds effect in the Fundamental Right chapter contained in Part III as well as
the Directive Principles of State Policy under Part IV.

Article 14 of the Constitution speaks about the general right of equality which is an inherent,
inalienable right in itself. This right has subsequently been applied to specific situations by virtue
of the next two Articles, i.e. Article 15 and Article 16. The first Article delves into the right of
equality when applied to admissions in educational institutions while the second Article talks
about equality in matters of Public Employment.

In the Indian context, unlike other countries equality connotes reservations in certain key
areas of public life. Through the ages, there have been certain classes of citizens who have been
castigated, vilified and shunned by society for being “backward”. Favouring these sections of
people was considered anathema by the majority. There are multiple reasons for the same.
Owing to this social stigma, the people who belonged to these classes suffered dire consequences
which thereby stultified their ability to rise in the eyes of society and make a name for
themselves.

For this purpose the members of the Constituent Assembly felt that the new Constitution
would give these downtrodden parts of society an opportunity to prove their mettle and allow

5
society to make up for the acts which had ostracized this section of society in the past.
Accordingly certain express provisions were provided for in the Constitution by virtue of which
a certain percentage of seats were exclusively reserved for these “backward” classes of citizens.
At the time of the commencement of the Constitution, there were reservations only in matters of
Employment under the State. However, subsequent to a judgment of the Supreme Court, these
reservations were extended to educational institutions. The same shall be discussed at length
subsequently.

Now the instance which has perplexed the apex court is the manner in which the provisions
have been drafted since it creates a significant amount of ambiguity in the application of the
same. For instance the term “backward classes of citizens” has not been defined anywhere in the
Constitution. Therefore the Supreme Court has been called upon to deliberate upon the same in a
number of landmark judgments. In addition to this, the sensitivity of the issue creates an onus
upon the Supreme Court as well as the authority in power to confer these benefits only to those
who are indeed needy and deserving. This is because Reservation has a significant scope for
misuse.

In addition to the same the bigger issue which follows is that the framers of the Constitution
did not devise any clear cut method for the purpose of identifying the so called "backward
classes.” This is the second major obstacle which is sought to be overcome. These are some of
the major issues which this paper seeks to address.

6
2. ARTICLE 14: A BRIEF INSIGHT

Equality before law- The state shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.

Articles 14 to 18 constitute the right of equality. These fundamental rights guaranteed to the
people are not merely a negative right not to be discriminated against, but also a positive right to
be treated as an equal. Under the later aspect of the right which is the very crux of the Article, the
State is under an obligation to take the necessary steps such that every individual receives equal
respect and concern which he rightly deserves as a human being. Article 14 is required to be read
in consonance with Articles 15 to 18 though it is much wider and general in character.

Article 14 is divided two aspects, “equality before the law” and “equal protection of the
laws”. The first aspect of equality before the law has been taken from the English Common Law
System which is a declaration of equality of all persons in the eyes of law whereby no individual
is given any special privilege. Every individual irrespective of his stature in society is bound by
the jurisdiction of the ordinary courts. The second expression “equal protection of the laws” is
indeed a corollary of the first and is based on the last clause of the first section of the 14 th
Amendment of the U.S. Constitution. This principle states that which establishes the fact that
equal protection shall be secured to all persons within the territorial jurisdiction of the Union in
the enjoyment of their rights and privileges without favour, predilection or discrimination. It has
been noted that the “equal protection of laws” is a pledge of protection or guarantee of equal
laws. A significant difference between the two terms is that the term ‘law’ in the former is used
in a rather generic or philosophical sense while whereas the term ‘law’ in the latter expression
denotes specific laws which have application in society.

7
 2.1 Valid Classification

A Legislative Classification to be valid must be reasonable and must be based upon a

significant distinction whereby the same is reasonable. It is bound to rest upon some real and
substantial classification to the needs in respect of which the given classification is made. It is a
widely accepted fact that the following two conditions need to be fulfilled after which the given
classification would be deemed to be valid-

1) The classification should be based on an intelligible differentia which distinguishes things

or persons that are grouped together from the other items left out.

2) The differentia must have a rational relation to the object sought to be achieved by the
statute under consideration.

A valid classification does not require mathematical nicety and perfect equality. Nor does it
require identity of treatment. If there is similarity or uniformity within a given group, the law
would not be deemed to be discriminatory if owing to certain circumstances some included in a
given class get an advantage over the others provided that they are not singled out for special
treatment. It has also been found that a disadvantage arising out of a party’s own default or
omission would not be considered to be the creation of two classes which would run contrary to
Article 14 especially when it functions upon the person who has committed such fault or
omission.

Further, the object of the classification should be lawful. Classifications made under utmost
good faith and that which is scientific and rational and one that will have direct and reasonable
relation with the objective sought to be achieved can be found to be bad since the object offends
Article 14. In such a scenario the object itself must be struck down and not the mere
classification which after all is only a means of attaining a desired end. Whether an end is a
desired end or no is inevitably subject to judicial scrutiny. This is an essential element since an
object which may be valid at one point of time or situation may become invalid another given
point of time.

8
3. ARTICLE 15

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth-

(1) The state shall not discriminate against any citizen on grounds of only religion, race,
caste, sex, place of birth or any of them.

(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to-

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of state funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the state from making any special provision for
women and children.

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward of classes
of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the
State from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Schedules Castes or the Schedules Tribes
insofar as such special provisions relate to their admission to educational institutions including
private education institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of Article 30.

Perusing Article 15 establishes the fact that it very evidently applies the general principle of
Equality before law embodied in Article 14 to specific situations. The same can be understood
by scrutinizing few of the landmark judgments of the Supreme Court which will be addresses
subsequently.

9
 Article 15(4) which has proved to be the prime cause of contention before the judiciary as a
matter of fact was never a part of the original Constitution which was laid down by the
Constitution framers. The said article was introduced after two significant judgments which ran
contrary to the meaning of Article 15(1) and thereby acted as a major hindrance when the
Government attempted to make special provisions for the backward classes of citizens. They are
discusses as follows.

The Madras Government issued an order [popularly referred to as a Communal G.O.]

allotting seats in the state Medical Colleges in a community wise manner whereby a certain
number of seats were “reserved” for non Brahmins, backward Hindus, Brahmins, Harijans,
Anglo-Indians, Indian Christians and Muslims. This G.O. was declared invalid owing to the fact
that it classified students merely on the basis of ‘caste’ and ‘religion’ irrespective of their merit.1
A seven judge bench of the Supreme Court struck down the classification as being based on
caste, race and religion for the purpose of admission to educational institutions on the ground
that Article 15 did not contain a provision like Article 16(4).

In another case2 a government order requisitioning land for the construction of a colony for
harijans was held to be discriminatory falling within the mischief of Article 15(1) because of the
fact that the facilities were provided to them as a ‘community’ as such when other members of
the public were equally in need of the same.

Therefore to overcome the difficulties created by the judgments referred to above so as to

improve the situation of the backward classes by establishing discriminatory provisions in their
favour, Parliament laid down Article 15(4) whereby the State would be permitted to make
ameliorative provisions so as to mitigate the hardships faced by the “socially and educationally
backward” classes of citizens. But herein lies a problem. This problem is similar to the one
when considering Article 16(4) which enables the State to make special provisions for
reservations in posts in favour of “backward” classes of citizens. Therefore under both the
provisions of the Constitution the arduous task of determining such classes of citizens has proved
to be of great difficulty. The prime cause for this is that the framers of the Constitution have not
laid down any specific criteria or yardstick for determining the composition of these backward

1
State of Madras v. ChampakamDorairajanAIR 1951 SC 226
2
Jagwant Kaur v. State of Maharashtra AIR 1951 Bom. 461

10
classes. However to ensure that this does not go unaddressed the framers of the Constitution have
stated in Article 340 that a commission may be appointed to investigate the condition of
“socially and educationally” backward classes of citizens and such other matters as may be
referred to the Commission by the President. This Article has been made use of on two
occasions, once in 1953 under the Chairmanship of Kaka Kalelkar and the second in 1978 under
the Chairmanship of B.P.Mandal. It is to be noted that on both occasions ‘caste’ has been taken
as the dominant if not the sole criterion in determining the backwardness of a class of citizens.
However to this day there is no universally established formula for the same. The trend that has
been adopted is that the States have been experimenting with different tests in view of social and
political considerations as well as judicial pronouncements. This is then dully scrutinized by the
courts to ascertain the Constitutional validity of the same. A string of judgment shall
subsequently be dealt with which establishes the lack of brevity in the mind of not just the
Supreme Court but also of the State.

3.1 IS CASTE ALSO A CLASS?

In M.R. Balaji v. State of Mysore3it was held that the caste of a group of persons could not be
the sole or even predominant factor in determining whether a group was eligible for reservations
under the Constitution by virtue of it being a “backward” class. However the same could be a
relevant factor for ascertaining the same. Accordingly the impugned test was struck down. Again
in State of A.P. v. P. Sagar4 the court struck down an Andhra Notification since the given
notification was apparently based exclusively on caste. The Apex court held that in the
determination of a class a test solely based on caste or community could not be accepted. The
same was reiterated by the court in Trilokinath Tiku v. State of J & K5wherein the court observed
that “backward class” was not a synonym of backward caste or community.

What is of paramount importance at this stage is that the Supreme Court in a chain of cases
had laid down that Caste could not be the prime criterion for determining the backwardness of a
group of individuals. By doing so the Court was making a genuine attempt at lowering the stress
on Caste as a yardstick. This would have gone a long way in attenuating the harsh consequences

3
AIR 1963 SC 649
4
AIR 1968 SC 1379
5
AIR 1969 SC 1

11
faced by society because of the socio-political clashes which occurred and continue to do so on
the basis of Caste. Caste is one subject which is of broad significance to Indian Society since
time immemorial starting from the “Varna” system. Since it is inevitably engraved in the mind of
the average Indian citizen and implies major benefits to an individual it continues to be a major
bone of contention to this day. By reducing the stress on Caste the Supreme Court performed a
rather commendable feat. This is simply because this would alleviate Caste Discrimination in
society to a great extent. The Supreme Court was cognizant of the danger in treating ‘caste’ as
the sole criterion for determining social and educational backwardness. However this school of
thought proscribing limitations in terms of caste based reservations did not last long. The very
court which had laid down this proposition in another set of judgments upheld caste based
reservations. The same is discussed at length.

To begin with, the Supreme Court in P.Rajendran v. State of Madras6held that a caste was
also a class of citizens and if the given caste as a whole was socially and educationally backward
then in that case reservation could be made in favour of such a caste on the ground that it was
socially and educationally backward within the meaning of Article 15(4). The same was referred
to again in A.Peeriakaruppan v. State of T.N.7The only other point to note in this case was that
the Supreme Court passed a caveat stating that there could be vested interests being created in
favour of castes and accordingly the same required revision over a period of time. Caste based
reservations were upheld subsequently in A.P. v. U.S.V. Balram8. The court was also of the
opinion that there was an onus to prove that the said group of individuals was socially and
educationally backward. This was to be done with the assistance of appropriate data which was
conclusive of the same. It also noted that if the same was proved then in that case the reservation
of such persons would be upheld notwithstanding the fact that a few of the individuals belonging
to that group were both socially and educationally above the general average.

It is rather clear from the two schools of thought in terms of caste based reservations that the
apex court itself is rather nonplussed when it comes to caste based reservation. This is very
evident from its judgment in K.C.Vasanth Kumar v. State of Karnataka9. At this juncture it was

6
AIR 1968 SC 1012
7
(1971) 1 SCC 38
8
(1972) 1 SCC 660
9
AIR 1985 SC 1495

12
rather clear to the states that no clear and uniform policy, guidelines or test of determining
backwardness for the purpose of Articles 15(4) and 16(4) had been laid down. In order to bring
an end to this form of judicial vacillation, the State of Karnataka asked the apex court to give
clear guidelines on this ticklish issue. Rather ironically, each of the five sitting judges of the
Supreme Court in this case gave five separate opinions on the question wherein comparability
with SC’s, ST’s; economic backwardness, Class poverty, and occupation were considered as
means of determining backwardness.

Therefore from the above explanation it is very clear prima facie that the apex court has
indeed struggled to identify a clear cut formula so as to identify the socially and educationally
backwards classes of individuals within the meaning of both Articles 15(4) and 16(4). This has
further proved to be a rift in the lute since it exhorts the average individual to unduly take
advantage of the benefits so conferred.

3.2 RESERVATIONS IN EDUCATIONAL INSTITUTIONS

It has been found that the question of reservation has become a very knotty socio-politico
issue of the day. Owing to keen competition for limited opportunities available in the country,
the government is compelled to indulge in all forms of reservations for different kinds of groups.
The ideology behind reservations is essentially the following- as between two candidates of
equal merit; the candidate belonging to the reserved quota is preferred to the one having no
possession of such quota. The tests applied in this case are the same as applied to Article 14 to
ascertain whether the classification is reasonable. The principle of equality contained in Article
15(1) is not violated so long as some form of rational relevant and intelligible differentia and
there is a nexus between such differentia and the object sought to be achieved, i.e. to procure the
best available talent for professional colleges. It is believed that by reason of such a reservation,
the individuals belonging to such groups will be at an equal footing with the more advanced
sections of society. In addition, since the Constitution is a living organ, the rights of individuals
are to be determined in terms of judgments interpreting the Constitution. Few of the relevant
judgments have discussed at length.

13
 To begin with, in Pradeep Jain v. Union of India10 the residence requirement for admission
to medical colleges was at loggerheads with the idea of unity and integrity of the nation though it
could be justified under Articles 14 and 15(1). It was held that no reservations in excess of 70
percent on the basis of residence could be reserved in at the MBBS level. However, up to seats at
this level could be permitted on institutional basis. This was reiterated in Saurabh Chaudriv.
Union of India11. In State of A.P. v. U.S.V. Balram12, the court held that it was the prerogative of
the state to prescribe the source from which the candidates could be selected. However, once an
admission test was conducted there could be no valid classification between candidates who took
it after the higher secondary course and those who took it after the pre university course.

Another landmark judgment was that of Jagadish Saran v. Union of India13wherein the facts
before the court were that 70 percent of the seats in the post-graduate medical courses of Delhi
University were reserved for Delhi University Medical graduates whereas the remaining 30
percent was kept open to all. The court however did not invalidate the same on the grounds of
imperfect, scanty, fragmentary and unsatisfactory materials.

In the case of Nishi Maghu v. State of J & K14 it was held by the apex court that classification
for the purpose of rectification of regional imbalance without recognizing the relevant areas and
without laying any objective standard to guide selection committee in identifying the areas of
imbalance was invalid. However where the classification was made on the basis of nature of
occupation and place of habitation being located very close to the actual line of control in Jammu
and Kashmir being highly backward areas was very rightly held to be valid.

Another interesting question before the Supreme Court was noted in the case of State of U.P.
v. Pradip Tandon15. In this case, admission to medical colleges in UP in favour of candidates
from rural areas, hilly areas and Uttarakhand areas was challenged. The Supreme Court again
noted that the people belonging to such areas remained backward because of a variety of factors
like poor means of communication, technical facilities and educational facilities kept such

10
(1984) 3 SCC 654
11
(2003) 11 SCC 146
12
(1972) 1 SCC 660
13
(1980) 2 SCC 768
14
(1980) 4 SCC 95
15
(1975) 1 SCC 267

14
individuals devoid of the opportunities to move forward in society. Thereby such reservations on
the basis of geographical or territorial considerations were constitutionally valid.

The above mentioned cases are a few examples of how the Supreme Court has interpreted the
meaning of Article 15 in terms of reservations at the Undergraduate level.

3.3 RESERVATIONS IN POST GRADUATE COURSES

From the judgments referred to above the Supreme Court has expressed a fair level of
flexibility and leniency in ensuring that backward sections of society are given their share of
reservation in educations institutions at the undergraduate level. However when it comes to post
graduate courses, the apex court has adopted a rather stringent approach towards admissions and
more so for super-specialties. The basic ideology of the Supreme Court is that admission to post
graduate courses should be based strictly on merit and that there should be no dilution of
standards in such courses. The court advocated the principle that the higher one goes in the
ladder of education, the lesser should be the role played by reservations.

This ideology has been highlighted by the courts judgment in Jagdish Saran (Dr.) v. Union
of India16. The court observed the fact that to encourage the SC/ST/OBC candidates, the state
was permitted to make reservations for them at the under-graduate level, but at the level of
Ph.D., M.D., or levels of higher proficiency, “equality” measured by matching excellence had
more meaning and could not be diluted much without grave risk. It is noted that at the highest
levels of proficiency or speciality, the best skill or talent would require to be handpicked by
selection on the basis of capability.

Again in Pradeep Jain (Dr.) v. Union of India17the court expressed great reluctance in
conceding any form of reservation for admission to post-graduate courses where ideally it was
merit which should prevail. The same was upheld in Mohan Bir Singh Chawla v. Punjab
University18 wherein the court reiterated the fact that at higher levels of education to would be
dangerous to deprecate merit and excellence. It held that “The higher you go in any discipline,
lesser should be the reservations – of whatever kind”.

16
(1980) 2 SCC 768
17
(1984) 3 SCC 654
18
(1997) 2 SCC 171

15
 Another landmark judgment of the Supreme Court when it comes to admissions for Post-
Graduate Courses is that of Dr. PreetiSagar Srivastava v. State of Madhya Pradesh19. In this
case to appear for an entrance examination the state government had fixed a cut off percentage of
45% in the given examination for the admission of a general category candidate while there was
no cut off marks fixed for SC/ST candidates. The impugned rule was quashed by the Supreme
Court in Dr.Sadhna Devi v. State of Uttar Pradesh20. The court remarked that if this was done,
merit would be sacrificed altogether. The court noted that if this was done it would result in the
entrance test becoming a mere formality because of which the candidates would qualify for
admission even though they did not secure any marks. The court held that this would amount to
sacrificing merit altogether and the same could not be done. It also stated that the same if put into
action would amount to a national loss.

The thought process of the apex court is rather clear by virtue of its observations in the
aforementioned cases. The ideology is that every policy pursued under Article 15(4) must be of
such caliber as would be conducive to the formation of an egalitarian and non-discriminatory
society. This would be deemed to be the final constitutional justification. The given reservations
cannot be unreasonable or arbitrary nor can they undermine vital public interests or general
good. This was by and large the opinion of the Supreme Court when it comes to reservations in
educational institutions under Article 15(4).

19
(1999) 7 SCC 120
20
(1997) 3 SCC 90

16
4. ARTICLE 16

16. Equality of opportunity in matters of public employment-

(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the state.

(2) No citizen shall, on grounds only of religion, race caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the state.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office [under the Government
of, or any local or other authority within, a State or Union Territory, any requirement as to
residence within that State or Union Territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the state from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented under the State.

[(4-A) Nothing in this article shall prevent the state from making any provision for
reservation in matters of promotion [, with consequential seniority,] to any class or classes of
posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not adequately represented in the serviced under the
State.]

[(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies
of a year which are reserved for being filled up in that year in accordance with any provision for
reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up
in any succeeding year or years and such class of vacancies shall not be considered together
with the vacancies of the year in which they are being filled up for determining the ceiling of fifty
percent reservation on total number of vacancies of that year. ]

(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational

17
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.

Article 16 is therefore a facet of Article 14. Articles 14 and 16(1) have a very close nexus
with each other. Article 16 as a matter of fact takes its roots from Article 14 and in a
Constitutional sense, identifies “equality of opportunity” in matters of employment under the
State. Article 16 in the true sense expands the principle of “equality” enshrined in Article 14 and
therefore applies the same to situations which involve employment under the State.

4.1 LANDMARK JUDGMENTS

The Supreme Court has in a handful of landmark judgments highlighted key aspects of
Article 16. It is to be noted that in a manner similar to that of Article 15, there is no fixed method
for the purpose of indentifying backward classes of citizens referred to under Article 16(4).

To begin with, the Supreme Court answered a significant question which dealt with the
relationship between Articles 14, 15, and 16. This question arose in the case of State of Kerala v.
N.M.Thomas21. The prime issue was whether Article 16(1) protected the exemption of the Lower
Division Clerks (LDC’s) belonging to the SC’s and the ST’s from passing the special tests for
promotion as the Upper Division Clerks (UDC’s). The question was also whether the said
provision was protected under Article 16(4). The majority of the judges were of the opinion that
the said provision would be protected under Article 16(1) and not under Article 16(4). The
majority of the judges were of the view that Article 16(1) permitted reasonable classification and
did not deny the state the opportunity of rendering social justice to the backward classes. It was
also noted that Article 16(1) used the expressions “equality” which made it relatable to any given
matter of employment and in addition permitted classification on the basis of object and purpose
of the law or State action except classification involving the discrimination prohibited by virtue
of Article 16(2). It was further noted that a given rule which gave preference to an unrepresented
or underrepresented backward community was not violative of Articles 14, 16(1) and 16(2).
Article 16(4) wiped out any ambiguity which existed in the instant case. In this case however,
one significant flaw which was applied was that Article 16(4) was considered to be an exception
to Article 16(1). The same was overruled in the subsequent judgment to be discussed.

21
(1976) 2 SCC 310

18
 Subsequently in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India22the
Supreme Court corrected the flaw which was referred to in the previous case of N.M.Thomas.
The Court now held that Article 16(4) was not an exception to Article 16(1) but in fact was an
aspect of Article 16(1). To be more specific Article 16(4) was an enabling provision and thereby
it would foster and further the idea of equality as enshrined in Article in 16(1) whereby special
reference and consideration would be given to hapless and destitute classes of citizens. Finally
the court also noted that if classification of the SC’s and the ST’s as a special category was to be
made, the same could be justified under Articles 15(1) and 16(1). However, classification on the
basis of weaker sections on the basis of backward classes would have to conform to the
requirements of Articles 15(4) and 16(4).

The next contentious issue which has been read into Article 16(4) is that of the “carry
forward rule”. This issue came up for consideration in the case of T.Devadasan v. Union of
India23wherein the constitutionality of the said rule was taken cognizance of by the apex court.
Instructions were provided by the government in 1952 which stated that if in any particular year,
the number of suitable candidates was less than the number of reserved posts, the same in excess
would be treated as unreserved for that particular year but in the next year the given number of
posts which would otherwise have been reserved for such candidates in the normal course would
be altered to also consider the number of seats which were non-reserved in the previous year.
This rule was to be applied for a period of one year as per the 1952 notification but this was
amended to two years by virtue of a notification in 1955. The court was of the opinion that the
rule per se was not invalid but the 1955 notification which extended its operation for a period of
two years was. The ratio so laid was that the power conferred to the state by virtue of Article
16(4) was to be reasonably restricted so as to ensure that employment opportunities to classes
other than backward was not denied. If the manner of such reservation was to such a vast extent
as would obliterate the available opportunity to other classes would amount to a fraud upon the
Constitution. In addition, the court took cognizance of the fact that total reservations in the
instant case would be above the 50% limit laid down in Balaji and therefore was declared
invalid.

22
(1981) 1 SCC 246
23
AIR 1964 SC 179

19
 4.2 THE MANDAL COMMISION CASE

4.2.1 Brief History

Over two decades after the first backward classes commission report was published under the
Chairmanship of Kaka Kalelkar in 1953, Prime Minister Morarji Desai fulfilled the Janata
Party’s electoral promises by constituting the second Commission on backward classes in 1979.
The said Commission was set up under the Chairmanship of B.P.Mandal24. The prime purposes
of the Commission were as follows:

1) Determine the criteria for defining ‘socially and educationally backward classes’.

2) Recommend steps to be taken for the advancement of socially and educationally

backward classes.

3) Examine the desirability of making provisions for reserving posts in favour of such
backward classes of citizens.

The said report applied eleven relative indicators, grouped into three broad heads social,
educational, and economic so as to ascertain which classes could be treated as socially and
educationally backward. The Commission found 3743 socially and economically backward
castes via these parameters, a figure which was 50% greater than what was arrived at by the
Kaka Kalelkar Commission. Accordingly, OBC’s constituted about 52% of the population of the
country.

However it was seen that SC/ST candidates already had 22.5% reservation and introducing
reservations to the extent of 52% for the OBC’s would go against the Supreme Court’s judgment
in Balaji in addition to other cases. Accordingly 27% reservations were given to the OBC
category so that the upper limit of 50% was not breached.

4.2.2 The Mandal Challenge

Two office memorandums were issued by the Central Government to give effect to some of
the recommendations of the Mandal Commission Report relating to public employment. When
the memorandums were read together they had the following connotation: 27% of the civil posts
24
Former Chief Minister of Bihar and Member of Parliament.

20
under the Government of India would be reserved for OBC’s. Among the backward classes, the
poorer sections would be given preference. After providing such preference to the poorer
sections there were still vacancies, the same would be filled by others within the backward
classes. OBC’s recruited on the basis of merit would not be adjusted against the given 27%
reservation. Finally, 10% of the vacancies would be reserved for the other economically
backward sections uncovered by existing scheme of reservations.

4.2.3 QUESTIONS POSED BEFORE THE SUPREME COURT

In a highly charged atmosphere, a bench of nine judges which was the largest bench ever
formed to consider a case on Reservation adjudicated on complex constitutional questions
involving the interpretation of Article 16. The following are some of the key questions which
arose before the court.

(1) Can backward classes be identified on the basis of caste alone?

(2) Whether Article 16(4) is an exception to Article 16(1)?

(3) Whether reservations could cross the ceiling limit of 50%?

(4) Whether the ‘creamy layer’ was to be excluded?

(5) Whether reservations in matters of promotion were permitted under Article 16?

The questions referred to the bench shall now be analyzed individually-

4.2.3.1 Can backward classes be identified on the basis of caste alone?

The majority of the judges declared that ‘a caste was nothing but a social class – a socially
homogenous class’ and that ‘it was mainly these classes the Constituent Assembly had in mind
though not exclusively-while enacting Article 16(4)’. The majority reasoned that caste,
occupation, poverty and social backwardness were closely intertwined and this justified caste
based reservations. It was noted that the Union could start with any caste, apply the criteria of
backwardness evolved by it to that caste, and thereby determine whether it qualified as a
backward class or not. Since caste represented an existing identifiable social group/class
encompassing an overwhelming majority, one could well begin with it and then go to the other

21
groups, sections and classes. It was also highlighted that reservations under Article 16(4) were
not in favour of ‘caste’ but a ‘backward class’ and in such a situation the bar of Article 16(2)
would not apply. The stress of the provision was on social backwardness resulting from years of
historical discrimination. Therefore once a caste satisfies the criteria of backwardness, it would
be deemed to be a backward class for the purpose of Article 16(4). However the majority also
clarified that ‘other backward classes’ need not be similar in their backwardness to the SC’s and
ST’s in order to make use of the benefits of reservation.

4.2.3.2 Whether article 16(4) is an exception to article 16(1)?

The Supreme Court clarified that Article 16(4) was not an exception to Article 16(1) but only
an instance of classification implicit and permitted under Article 16(1). Even without Article
16(4), the State could have classified “backward class of citizens” in a separate category for
special treatment in the nature of reservation in government services. Article 16(4) merely put
the matter beyond any shadow of doubt in specific terms. It was also noted by the court that
Article 16(4) was rather a means of achieving the right to equality enshrined in those Articles.
Therefore the Supreme Court overruled this opinion of its judgment in N.M.Thomas.

4.2.3.3 Whether reservations can cross the ceiling limit of 50%?

The Supreme Court stated that barring extraordinary circumstances, reservations could not
exceed 50%. The court gave the example of far flung and remote areas where on account of their
being out of the mainstream of national life ad in view of conditions peculiar to them, they would
required to be treated in a different way and some relaxation with reference to such a rigid rule
would become the need of the hour. However extreme caution was required to be exercised and a
special case made out.25 Individuals selected on merit would not fall within this category. This
rule would also not apply to exemptions, concessions and relaxations. It was also stressed on the
fact that this would be applied taking a year as a unit and not the entire strength of the Cadre. As
long as this was observed, the “carry forward rule” was permissible. The court therefore
overruled Devadasanon this point. The prime reason behind this was that Article 16(4) spoke
about “adequate representation” and not “proportional representation” The said power was to be
exercised in a fair manner and within reasonable limits.

25
Observation by J. Reddy

22
 4.2.3.4 Whether the creamy layer is to be excluded?

The Supreme Court reiterated the meaning of “creamy layer” by stating that it referred to
those individual members found in any caste who had already made such significant strides in
social, educational and economic progress such that it would render them undeserving of the
benefits of reservation. The court however did not itself lay down finally the test to identify the
“creamy layer” and thereby directed the Government to specify the basis of exclusion- whether
on the basis of income, extent of holding or otherwise.

The idea behind such a provision was that the socially advanced members of a backward class
should be excluded from the benefits of reservation. It was noted that such a provision would
benefit the truly backward people and thereby serve the purpose of Article 16(4).

4.2.3.5 Whether reservations in the matter of promotion is permitted under article

16?

A significant point noted by the Supreme Court in the instant case was that the rule of
reservations would not apply to promotions. The application of Article 16(4) was limited to the
entry stage, i.e. only at the initial stage of direct recruitment and not at the subsequent
promotional level. The court therefore disagreed with the proposition that Article 16(4)
“contemplates or permits reservation in promotions as well”. The court came to such a
conclusion by virtue of a combined reading of Article 16(4) and Article 335. J. Reddy held that it
would be a serious and unacceptable inroad into the rule equality of opportunity to say that such
a handicap should be provided at every stage of promotion. The same would have a deleterious
effect on the efficiency of administration. It was noted that once reservation was provided for at
the entry level, it would be the duty of the backward classes of citizens to ensure that henceforth
they are expected to compete with others and earn promotion like all others. They were also
expected to operate on equal footing with others.

The court therefore overruled the case of Gen. Manager, Southern Railway v. Rangachari26
which was considered an authority for a period of thirty years up to this stage. The court also
held that to mitigate the rigour of the new rule, wherever reservations had been provided for in

26
AIR 1962 SC 36

23
promotions, the same would continue for a period of five years. Essentially, the rule would
apply prospectively.

4.2.4 SUBSEQUENT AMENDMENTS

The judgment of the Supreme Court in Indra Sawhney v. Union of India27proved to be rather
harsh in the opinion of the Legislature and thereby there were two amendments to Article 16(4)
whereby the rigour of the judgment would be mitigated.

Article 16(4-A)

The bare provision has been referred to supra for the purpose of reference. This amendment
was made by the Constitution (77th Amendment) Act, 1995 with the purpose of overcoming the
decision of the Mandal Commission case that no reservations could be made under clause (4).
This clause does not affect that decision as regards OBC’s but us inapplicable to the SC’s and the
ST’s. This was the first issue in this regard. The second issue was regarding seniority between
the General Category and the reserved candidates. A senior general candidate at the lower level,
if he reached the promotional level later but before the further promotion of the reserved
category candidate, would be treated as senior at the promotional level to the reserved category
candidate even if the reserved candidate was promoted to that level earlier. This was the ratio
followed by the court in Union of India v. Virpal Singh Chauhan28 as also in the case of Ajit
Singh (II) v. State of Punjab29. In order to nullify this observation in the two mentioned cases, the
Constitution (85th Amendment) Act, 2001 introduced the words “with consequent seniority”.

Article 16 (4-B)

The Mandal Commission case had laid down a 50% upper limit for reservation in a year
under clause (4) and had upheld 49.5% reservations whereby no scope was left to fill in the
backlog vacancies and to hold special recruitment drives. 30 With the fundamental objective of
overcoming this legal impediment, the Constitution (81st Amendment) Act, 2000 introduced an
exception to the 50 % limit for the purpose of filling the backlog vacancies. It is rather

27
1992 Supp (3) SCC 217
28
(1995) 6 SCC 684
29
(1999) 7 SCC 209
30
R.K.Sabharwalv. State of Punjab (1995) 2 SCC 745

24
interesting to note that neither of these 2 clauses are solely restricted to the Scheduled Castes or
the Scheduled Tribes. It would also include within its ambit the Other Backward Classes
(OBC’s).

Though no specific case has been decided under the said Article of the Constitution, the
Supreme Court in M.Nagaraj and Ors. v. Union of India and Ors.31made certain
recommendations to ensure the efficiency of Administration as required by Article 335 of the
Constitution. It very categorically stated that in each case, the appropriate government would
have to introduce the time cap depending upon the given fact situation to fill in the backlog
vacancies. It is apposite to consider the fact that Article 335 which applies only in the case of the
SC’s and the ST’s has been extended to Clause (4-B).

In the above mentioned Supreme Court judgment, (which was decided by a 5 judge bench)
their Lordships unanimously upheld the validity of the amendment wherein the above clauses
were introduced within the meaning of Article 16. This is shocking to say the least, owing to the
fact that this outrageous amendment to the Constitution has proved to have blatant disregard for
the principles of law which were analyzed and thereby laid down by the Apex Court of the
country in the Indra Sawhney32.

This clearly proves to be a double whammy, owing to the fact that the Legislature first
nullified a judgment passed by the Hon’ble Supreme Court and subsequently, the Supreme Court
itself gave an impetus to such an act of the Legislature by holding the amendments to Article 16
to be constitutionally valid. This only goes to show the extent to which the collusion of
constitutional bodies can prove to be detrimental to the growth of stability and meritocracy in the
Country.

31
(2006) 8 SCC 212
32
Supra

25
5. AFFIRMATIVE ACTION IN USA

5.1 History

Racial inequality continues to be a major problem in American society. After the end of the
Civil War in 1865, the US Congress passed the 13th and 14th amendments to the Constitution
outlawing slavery and prohibiting all states of the Union from discriminating against persons on
the basis of race. Despite these measures, many southern states passed what became known as
“Jim Crow” laws, which mandated separate facilities for whites and non-whites. The Supreme
Court upheld “separate but equal” facilities in the infamous case of Plessy v. Ferguson (1896),
where a man who claimed to be seven-eighths white was required under a state law to ride in a
separate train car from whites.

In reality, such facilities were not equal, and upholding segregation laws amounted to
government-sponsored racism. It took nearly sixty years for the Supreme Court to reverse its
ruling in Plessy in another landmark case, Brown v. Board of Education (1954). The Court struck
down the separate but equal practice, here in the context of lawsuit regarding segregated state-
run public schools. The ruling sparked an era of social upheaval in the US.

The term “affirmative action” was first introduced by President Kennedy in 1961 as a method
of redressing discrimination that had persisted in spite of civil rights laws and constitutional
guarantees. It was developed and enforced for the first time by President Johnson.33 The
Affirmative Action Programme in USA was primarily mooted to remove the difficulties and
suppression of the natives and the African-Americans who were brought as slaves to the
mainland from Africa.

The US Supreme Court even went to the extent of holding that, “Blacks, not just slaves but
all Blacks, were incapable of obtaining the citizenship, because they were not members of the
‘the people of the United States’ identified in the Preamble of the Constitution.”34 In its
tumultuous 45-year history, affirmative action has been both praised and pilloried as an answer
to racial inequality.

33
Brunner Borgna, Beth Rowen, “Affirmative Action History- A History and timeline of Affirmative Action”.
Available at http://www.infoplease.com/spot/affirmative1.html, last accessed on 20th of June, 2013.
34
Scott v. Sanford, 19, Howard 393, 1857.

26
 5.2 Development of Affirmative Action in USA

The XIII Amendment of the US Constitution abolished slavery and the XIV Amendment
guaranteed equality to all its citizens. The ‘Separate but equal’ doctrine evolved in 189635 was
overruled in two landmark decisions rendered in 1953.36 However, in reality discrimination
persisted and the Civil Rights Act, 1964 was passed.

While it is not possible to discuss the development of the law in America, it is interesting to
note the development of the case of “Reverse Discrimination” in the case of Bakke37, where a
white man could not get admission for two consecutive years in a medical college but members
of minority races who had scored less marks than him gained admission.

5.3 14th Amendment

The Fourteenth Amendment declares that, “No State... shall deny any person within its
jurisdiction the equal protection of the laws.” It was proposed on June, 13th 1866 and ratified on
July 9th, 1868. The legislative history of the fourteenth amendment is not only relevant to but
dispositive of the legal dispute over the constitutional standards applicable to race- conscious
affirmative action plans. From the closing days of the Civil War until the end of civilian
Reconstruction some five years later, Congress adopted a series of social welfare programs
whose benefits were expressly limited to blacks. These programs were generally open to all
blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections
that such racially exclusive measures were unfair to whites. The raceconscious Reconstruction
programs were enacted concurrently with the fourteenth amendment and were supported by the
same legislators who favoured the constitutional guarantee of equal protection. This history
strongly suggests that the framers of the amendment could not have intended it generally to
prohibit affirmative action for blacks or other disadvantaged groups.

The Supreme Court most recently addressed at length the constitutionality of affirmative
action in Fullilove v. Klutznick38. Fullilove upheld by a vote of six to three a provision of the

35
Plessey v. Ferguson (1896) 41 Law Ed 256.
36
Brown v. Board of Education (1953) 98 Law Ed 873; Bolling v. Sharpe (1953) 98 Law Wd 888.
37
Regents of the University of California v. Allan Bakke, (1978) 57 Law Ed 2d 750.
38
448 U.S. 448 (1980).

27
Public Works Employment Act of 1977 requiring that ten percent of all federal grants for local
projects be channelled to minority firms. The interpretation of the XIV Amendment’s limitations
on affirmative action should turn, however, not on whether a majority of the present Supreme
Court would have voted for these race-conscious Reconstruction programs, but on the fact that
the thirty- ninth Congress repeatedly chose to do so.39

5.4 Civil Rights Act, 1964

The Civil Rights Act of 1964 introduced the principle of ‘affirmative action’ into the
political, judicial and administrative spheres of American society. The institutions set up under
the 1964 Act, together with other Supreme Court rulings, were to define the American
affirmative action program, which is not quota based. The Civil Rights Act was followed by a
series of executive orders, issued by the Lyndon B. Johnson administration, to promote equality
in employment and education. The legal authority for affirmative action in its original form was
embedded in Titles VI and VII of the Civil Rights Act of 1964. These two titles ban
discrimination (whether negative or positive) on grounds of race, colour, religion, sex, or
national origin, in federally assisted activities and in employment, respectively.40

5.5 Working of Affirmative Action Policy

In the United States, the first affirmative action policies were implemented within the
Executive branch by Presidents interested in appealing to black voters, but wary of
Congressional opposition. Once Court-ordered desegregation and realignment mobilized and
empowered black voters, more sweeping affirmative action policies were possible.
Discrimination against Blacks is a feature of contemporary American labour markets, leading to
a very strong case for affirmative action.

Through the 1970s, however, affirmative action policies have been increasingly contested.
Until recently, the most critical case in the sphere of education was that of Alan Bakke, who sued
the University of California at Davis Medical School for denying him admission even though his
qualifications were superior to the Black students who were admitted. The Supreme Court issued

39
Eric Schnapper, “Affirmative Action and the Legislative History of the Fourteenth Amendment”, Virginia Law
Review, Vol. 71, No. 5 (Jun., 1985), pp. 753-798, at p. 770.
40
John M. Alexander, “Inequality, Poverty and Affirmative Action: Contemporary Trends in India”, Jnanodaya:
Journal of Philosophy, vol. 11 (2004), pp. 5-24, at p. 20

28
its decision in 1978 that ruled out the use of quotas in admissions. It is to be noted that the Bakke
case ruling diluted affirmative action but did not rule it out completely.

From the mid-1990s, however, some university regent actions, a few state referenda and
several federal lower court rulings struck down affirmative action in admissions – not just quotas
but also other forms of preferences. However, in 2003, the Supreme Court gave its ruling on two
lawsuits filed against affirmative action admission policies at the University of Michigan.

5.6 Judicial Decisions

The Supreme Court upheld “separate but equal” facilities in the infamous case of Plessy v.
Ferguson (1896), where a man who claimed to be seven-eighths white was required under a state
law to ride in a separate train car from whites.

In another landmark case of Brown v. Board of Education (1954), the Court struck down the
separate but equal practice, here in the context of lawsuit regarding segregated state-run public
schools. The Court’s decision cited sociological studies in an attempt to demonstrate that the
separate facilities were inherently unequal and irreparably harmed blacks. The ruling sparked an
era of social upheaval in the US.

In the most critical case in the sphere of education was that of Alan Bakke,41 who sued the
University of California at Davis Medical School for denying him admission even though his
qualifications were superior to the Black students who were admitted. The Supreme Court issued
its decision in 1978 that ruled out the use of quotas in admissions. However, it allowed for other
forms of preferences for minority students, provided that race/ethnicity is only one of the factors
taken into account in the admission process and the institution has a compelling interest in a
racially/ethnically diverse student body. Thus, the Bakke ruling diluted affirmative action but did
not rule it out completely.

The backlash from affirmative action has climaxed in an U.S. Supreme Court ruling. The
Court by a majority of one (5-4) has rolled back much of the victory of the civil liberty
movement. States, schools, and colleges, ruled the Court, can no longer be sued for policies that
have an adverse and discriminatory effect on minorities - the Blacks, the Latinos and other

41
Regents University of California v. Allan Bakke, 438 U.S. 265 (1978).

29
groups. The ruling itself comes as a response to a case wherein Spanish speaking residents had
sued Alabama for adopting an English-only policy for driving tests. The Court has struck off
major portions of the important Civil Rights Act of 1964, even as it bases its judgment on a
technical distinction between intention- regarding policies and outcomeregarding policies. Civil
rights laws do not apply to any legislation that results in racial discrimination ruled the Court.
They only apply to legislation that intends deliberate discrimination. Whereas agencies that
receive federal funding can be sued for intentional discrimination against racial groups, they
cannot be so sued if their policies have an adverse effect on minorities.

In a landmark 2003 case involving the University of Michigan’s affirmative action policies-
one of the most important rulings on the issue in twenty-five years-the Supreme Court decisively
upheld the right of affirmative action in higher education. Two cases, first tried in federal courts
in 2000 and 2001, were involved: the University of Michigan’s undergraduate program42 and its
law school43. The Supreme Court (5-4) upheld the University of Michigan Law School’s policy,
ruling that race can be one of many factors considered by colleges when selecting their students
because it furthers “a compelling interest in obtaining the educational benefits that flow from a
diverse student body.” The Supreme Court, however, ruled (6-3) that the more formulaic
approach of the University of Michigan’s undergraduate admissions program, which uses a point
system that rate students and awards additional points to minorities, had to be modified. The
undergraduate program, unlike the Law Schools, did not provide the “individualized
consideration” of applicants deemed necessary in previous Supreme Court decisions on
affirmative action.

In the Michigan cases, the Supreme Court ruled that although affirmative action was no
longer justified as a way of redressing past oppression and injustice, it promoted a “compelling
state interest” in diversity at all levels of society.

The policy must promote a “compelling state interest” through a means that is necessary to
achieve the goal. In the 1978 case Bakke v. Regents of the University of California,44 a plurality
of the Supreme Court held that a university’s desire to achieve a diverse student body was a

42
Gratz v. Bollinger, 539 U.S. 244 (2003).
43
Grutter v. Bollinger, 539 U.S. 306 (2003).
44
438 U.S. 265 (1978).

30
compelling state interest. However, admissions officers were prohibited from using quotas to
achieve this goal; instead, the Court specified as constitutionally permissible a “plus” system
where students of colour competed equally with whites for all available positions though they
could be given additional weight based on their race. Thus, “race could be considered as a plus
factor in a candidate’s application” but only insofar as the purpose was to achieve diversity
among the student body.

In Fullilove v. Klutznick,45 the Court upheld, uneasily, a congressional statute reserving to

minority-controlled businesses ten percent of federal funds spent on local public works. Chief
Justice Burger’s plurality opinion rested on “an amalgam of Congress’s specifically delegated
powers,” including its power to spend public funds for the “general Welfare,” its power to
regulate commerce, and its power to “enforce” the Constitution’s equal protection clause. In
view of that authority, the Court thought it permissible for the National Legislature to target
amodest slice of federal funds for minority businesses as a way of compensating for “the present
effects of past discrimination.”46

5.7 Evaluation of the Affirmative Action Policy

The AAP of USA has resulted in the increase in black students from 0.8 percent in 1951 to
6.7 percent of the entering class in 1989. However, the affirmative action program needs to be
strengthened since income disparities continue to be important. About half of the progress in the
median income of people of colour from 1996 to 2000 was wiped out in the following three
years. After slowly increasing from 55% of white income in 1988 to 65% in 2000, black median
income fell again to 62% of the white median in 2003. These institutions are representatives of
elite schools that have used affirmative action, and with a wide range in their selectivity of
admitting students.47

45
448 U.S. 448 (1980).
46
U.S. Const. amend. XIV, Section 5.
47
Ashwini Deshpande, “Affirmative Action in India and the United States”, Equity & Development, World
Development Report 2006, Background Papers, Revised: January (2005).

31
6. AFFIRMATIVE ACTION IN INDIA & USA- COMPARISON

American courts and many in the general public in the US have realized that there is a fine
balance between redressing past wrongs while maintaining principles of equality for individuals
instead of groups. Importantly, the US Constitution protects all citizens equally from government
factors. Positive discrimination in public sector educational and work settings has limits, as
evidenced by the American judiciary consistently disallowing the use of quotas or reservations.
Though the American private sector has been required by federal and state statutes not to
discriminate, the decisions of how best to institute anti-discrimination policies have in large part
rested with private parties.

This flexibility means that they can institute a greater degree of “positive discrimination” if
they see fit. However, companies have also realized that explicit quotas or reservations creates
resentment amongst staff and can negatively impact productivity as it seen as a barrier to
advancement. Considering ‘equal opportunity’ while hiring allows access to a broader talent pool
and fosters a positive image while maintaining meritocratic standards. Many companies have, as
part of their stated employment practices, proactively recruited and mentored talented
underrepresented minorities.

The US experience shows that implementing reservations for minorities in private sector will
be of little help to Indian scenario. If such an issue were to be taken to US courts, there would be
absolutely no doubt about the outcome reservations would not be allowed. Therefore before
embarking upon the journey of implementing reservation in the private sector for the minorities,
simply by aping the U.S.A.’s affirmative action policies, without actually understanding and
evaluating them, would do a great disservice to India and hence proponents of private sector
reservations in India should refrain from looking to the US for support.

The important difference which lies between the USA and India is that affirmative action is
not enshrined in the constitution of the USA, nor is it quota-based. Thus, as a result, the effect is
that even executive orders and/or court judgements can either strengthen or dilute the affirmative
action program with the passage of time. The program encompasses a large number of activities
that are designed to improve the presence of minorities and women in the workforce and thereby
raise their standard of living. Thus, an obligation to seek selection criteria that did not

32
disproportionately screen out minorities and women was imposed on the employer. Starting with
the inclusion of the label “equal opportunity employer”, measures to ensure that selection
procedures incorporated compensatory correction to ensure adequate representation of minorities
came to comprise the affirmative action program.

People of U.S, being more aware of their rights, are in a position to seek legal remedies in the
Court of law and also seek enforcement of their rights in case the employers acted
discriminately. Whereas in India, people belonging to S.T/S.C., are hardly aware of their rights,
as a result of which, the chances of their going to the Court of law and seeking enforcement of
their rights, seems a view which is unaware of the reality. Moreover, as administration of justice
in the U.S. is much faster than in India. So, in India, even if a person makes an attempt to seek
remedy and enforcement of his right in the Court of law, there are all chances that the litigation
may prolong over a decade, making the purpose of litigation, meaningless.

The Indian Constitution proclaims equality as a sovereign virtue. But realizing that equality
in India has to be achieved against a historical background of entrenched social, economic and
political inequalities created and justified by a caste-based hierarchical social order, it stipulates a
number of affirmative action or positive discrimination policies and programs in the areas of
politics, public employment and education for overcoming these inequalities.

In United States, firstly there was nothing like equality of opportunity in matters relating to
public employment. Secondly, the situation was actually opposite because of the existence of
“spoils system”, which was based on the theory that no one had the right to public employment
and hence, it was far from the idea of public employment being a matter of right.

The framers of our Constitution were aware of the existence of the spoils system in the U.S.
Constitution. So, if the doctrine of equality as contained in the U.S. Constitution were to be
imbibed in the Constitution of India, the result would be that it would be restricted to its general
application only and would not go any further to extend the equality doctrine in the matters of
public employment. And so, the right to public employment was expressly conferred by way of
Art.16 as the Indian Constitution had not adopted the spoils system.

33
7. CONCLUSION AND SUGGESTIONS

The wording of the Constitution today is such that the concept of “Reservation” for the so
called “Backward Classes” is deeply rooted in the conscience of Indian society. To very
explicitly state, it is a safeguard which the law of the land grants to a section of society. Certain
castes which were permitted to take advantage of the tag of “Backward” decades ago and have
therefore thrived for generations, today seek to protect this title with tremendous zeal and vigour.
It is rather ironic to note that India is possibly the only country in the world where individuals
strenuously fight to be recognized as backward. Further, it is also deplorable to note that over the
passage of time, there is no reduction in the list of backward classes.

It is essential to understand that the founding fathers of the Constitution envisaged

Reservations only for a temporary period such that those who were put at a disadvantage owing
to their social condition could get the benefit of easier admissions to various educational
institutions in the country or several public jobs on offer. It was believed that this would create a
level playing field since individuals belonging to these groups of society may be at a
disadvantage and would therefore struggle when it came to competing with forward
communities. Reservations would undoubtedly benefit such backward communities, but it is
submitted that such Reservations should have remained temporary.

The Supreme Court on numerous occasions has directed the State Governments to
periodically review the extent to which the benefit of Reservation is being conferred, but this has
been in vain. There is an increasing demand among various classes of society to be recognized as
backward, which is rather sullen to note. Once a community is recognized as Backward, it would
be practically impossible to withdraw such recognition, since it would question the credibility of
the political party in question. Even if a community deserves the recognition of a backward class,
it is seen that they are conferred such a title without significant statistical backing to ascertain the
social stature of the community claiming the same.

Several stalwarts of the Bar as well as the Bench had predicted that conferring the title of
“backward” in an unorderly fashion would only wreak havoc in society. Nani Palkhivala, the
Senior Counsel who had argued on behalf of the Petitioners in the Mandal Commission case had
strenuously urged that reservations would have a devastating impact upon merit and efficiency of

34
administration. He had also submitted that caste-based reservations would be highly opposed to
the secular structure of the Constitution, since the concept of Caste was unheard of, regard being
had to other religions such as Islam, Christianity and Sikhism. However this was not taken note
of by the majority. The renowned Constitutional jurist H.M.Seervai, after the passing of this
judgment went on record to hold that the judgments of the six majority judges had reached the
rock bottom48. Justice Krishna Iyer, who had passed several landmark judgments for the derelict
classes of society sought to highlight the fact that Article 16(4) could be manipulated by the
public by the use of political pressure. The prophetic vision of the esteemed judge has come true
and today the consequences are being faced by the public at large.

It is contended that for the purpose of establishing vote banks and winning elections,
politicians today seem to be hell bent on obliterating the vision which the founding fathers had
for the nation. The least that they could have done was to ensure that the backwardness of a class
was determined in a systematic manner and not the manner adopted by the Mandal Commission.
For now, it only seems as though the policy of Reservations will continue for eternity.

Affirmative action policies and programs are in principle a digression from a strict
interpretation of equality of opportunity for all in order to achieve a more substantial equality of
all citizens in the future. It is backward-looking insofar as it seeks to remove people’s disabilities
that were the results of the erstwhile hierarchical caste system. It is forwardlooking because the
reservation policies and programs are pursued with a view to creating a more egalitarian Indian
society where individuals will be valued and respected for their intrinsic worth rather than for
their affiliation to a particular group or caste.

We must however be aware that the regime of affirmative action cannot be maintained
forever. Not only will the resentment of the non-beneficiaries continue to create unwanted
backlashes but also the arguments in favour of equality of opportunity are likely to prevail one
day. The founders of the Constitution were well aware of these undercurrents. That is the reason
why they never thought of affirmative action as a permanent feature of Indian society. Given
these realities, it is extremely important that affirmative action policies and programs are

48
Seervai, Constitution of India, 4th Edition, Vol. 2, p. xcv

35
implemented impartially and efficiently while there are still some opportune moments for doing
so. Not castes, but poor and disadvantaged families should receive benefits of reservation. The
Government should formulate a policy whereby, there should be progressive de-reservation.

Although India has borrowed from the United States in creating and interpreting their equal
protection provisions, it has failed to adhere to the American perspective on women’s equality.
While this has both positive and negative aspects, it will be interesting to watch for the resolution
of various equal protection issues as India continues its attempt at a more secular legal and social
system that provides more equality for women.

Affirmative action, not reservation, is the need of the hour, say education policy makers.
Think-tanks have come out against the quota policy, asserting that the government should find
more practical solutions to the problem of social justice in India. When reservation was made for
SC/ST after Independence, the plan was to taper it off.

The suggestions that I put forward are that the implementation of the Affirmative Action
Programme for the upliftment of the native-Americans, African-Americans is seen to be more
effective than the Reservation Policy of India. There needs to be a total revamping of the existing
reservation system in India to suit the present social scenario. A well planned step should be
taken by the government where in the spirit of the Indian constitution will be maintained.

36
8. BIBLIOGRAPHY

Books & Articles

1. Sowell, Thomas, “Preferential Policies: An International Perspective”, New Haven, Conn.

William Morrow and Co. (1990).

2. Alexander, John M., “Inequality, Poverty and Affirmative Action: Contemporary Trends
in India”, Jnanodaya: Journal of Philosophy, vol. 11 (2004), pp. 5-24.

3. Schnapper, Eric, “Affirmative Action and the Legislative History of the Fourteenth
Amendment”, Virginia Law Review, Vol. 71, No. 5 (1985), pp. 753-798.

4. Deshpande, Ashwini, “Affirmative Action in India and the United States”, Equity &
Development, World Development Report 2006, Background Papers, Revised: January (2005).

5. D. Totten, Christopher, “Constitutional Precommitments to Gender Affirmative Action in

the European Union, Germany, Canada and the United States: A Comparative Approach”, 21
Berkeley J. Int'l L. 27 (2003).

6. Gupta, Asha, “Affirmative Action in Higher Education in India and the US: A Study in
contrasts”, Centre for Studies in Higher Education, University of California, Berkeley, (2006).

7. Foster, Jason Morgan, “From Hutchins Hall to Hyderabad and Beyond: A Comparative
Look at Affirmative Action in Three Jurisdictions”, 9 Wash. & Lee Race & Ethnic Anc. L.J. 73
(2003).

8. Liebman, Lance, “Equalities Real and Ideal: Affirmative Action in Indian Law”, 98 Harv.
L. Rev. 1679 (1985).

9. Chandola, M. Varn, “Affirmative Action in India and the United States: The Untouchable
and Black Experience”, 3 Ind. Int'l & Comp. L. Rev. 101 (1992-1993).

10. Deo, Meera. "Affirmative Action Rationales & Outcomes: A Comparative Analysis of
the United States & India", Paper presented at the annual meeting of the American Sociological
Association, Montreal Convention Center, Montreal, Quebec, Canada, (2006).

11. Lillibridge, Nicole, “The Promise of Equality: A Comparative Analysis of the

Constitutional Guarantees of Equality in India and the United States”, 13 Wm. & Mary Bill Rts.
J. 1301 (2005).

12. Connor, Yamicia, “Preferential Treatment Policies: A Perspective into Affirmative

Action in India and the United States”, SP.660: Gender and Race, Work, & Public Policy Spring
(2005).

37
Websites

1. http://www.allacademic.com/meta/p104489_index.html

2. http://scholarship.law.wm.edu/wmborj/vol13/iss4/7

3. http://scholarship.law.berkeley.edu/bjil/vol21/iss1/2

4. http://www.escholarship.org/uc/item/5nz5695t

5. http://ssrn.com/abstract=1908653

6. http://www.infoplease.com/spot/affirmative1.html.

7. http://www.core.org.cn/NR/rdonlyres/Urban-Studies-and-Planning/11-237Spring

2005/E35D7443-ABC6-45F6-B69C-29C3655F9F4F/0/yamicia_polipap2.pdf

8. http://www.escholarship.org/uc/item/5nz5695t

9. https://openknowledge.worldbank.org/bitstream/handle/10986

/9038/WDR2006_0012.pdf?sequence=1

10. http://scholarlycommons.law.wlu.edu/crsj/vol9/iss1/8 International Journal of Law and

Legal Jurisprudence Studies: ISSN:2348-8212 Volume 2 Issue 1

11. http://www.jstor.org/stable/1340955

12. http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ii

cl3&div=7&id=&page

13. http://www.allacademic.com/meta/p104489_index.html

38