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Reservation/Set-Asides in Services in India And USA
by Sheela Rai
Cite as : (2004) PL WebJour 19
The Renaissance in Europe raised the importance of the individual in society and infused the idea of liberalism in the economic and political systems. However, extreme individualism led to grave economic, social and political inequalities in society that gave rise to discontent and threat of disorder. Hence the realisation came that there was need for a more equitable distribution of the goods of society. Equality and non-discrimination became the creed of the twentieth century. But then it was realised that prohibition against discrimination remains a pious goal on paper unless and until, conditions of life are such as to make equality a reality to everyone. Hence, developed the theory of positive equality. Preferential treatment and compensatory justice are among the many tools adopted to promote positive equality.1 ..Quota system is one of the modes of providing preferential treatment. It has been explained that “quota is a numerical goal or requirement for the hiring or admission of members of specified groups within a certain time and until a certain percentage is reached”.2
One of the aims of preferential treatment might be compensatory justice. The aim of compensatory justice is to provide counterbalancing benefits to those individuals who have been wrongfully injured in the past so that they could be brought up to the level of wealth and welfare that they would now have had if they had not been disadvantaged. Thus, compensatory programmes differ from redistribution programmes mainly with regard to their concern with the past. Considerations of compensatory justice can justify a person getting more in the present than would he unless we consider his past losses.
Some writers argue that in addition to compensatory justice for individuals there can also be compensatory justice for groups if one group injures another group or is enriched at the other group’s expense. Paul W. Taylor essays on this thus:3
“When an injustice has been committed to a group compensation or reparation must be made to that group. Group rights to compensation are not rights against wrongdoers but against society as a whole. The obligation to offer such benefits to the group as a whole is an obligation that falls on society in general, not on any particular person. For it is society that through its established social practice brought upon itself the obligation.”
Writers holding opposite view contend,
“The one who have a right to compensation are those who have personally been injured by discrimination and who have not yet been able to overcome this injury.”4
They contend that such schemes subordinate individual to the group. They argue that these classifications are at once overinclusive and underinclusive. It may provide benefit to a well to do person of a disadvantaged group and may deny any preference to the poor man of a dominant group. It is also pointed out that these programmes also tend, at least in the present day context, to benefit those who have suffered least from prior discrimination and to burden most heavily those who have least participated in, and least benefited from past discrimination. Opponents of programmes attempting to provide compensatory justice on group basis object to the manner in which these programmes seem to perpetuate themselves. They point out that those who suffer discrimination today in order to compensate the children of those who suffered it yesterday will some day have children who will in turn have a claim to compensation.
People who hold the other view are broadly of two types. One is of those, who do not object to temporary classification on group basis because they accept the condition that an individual may be disadvantaged solely because he belongs to a disadvantaged group. Thus, affirmative action may be necessary in favour of the group to give equality of opportunity to the individual belonging to that group. But there has come up another group demanding equality of results. The contenders of this view say that all groups should be represented in the institutions and occupations of society roughly in proportion to their representation in population. They contend the only way to measure equality is in terms of such representation, and that it is the Government’s role to bring about proportional representation in short order.5 In USA the two groups are known as “fair shakers” and “social engineers”. While fair shakers want equality of opportunity, a level playing field for all, social engineers demand equality of results. According to this view justice is less an individual claim to equality before law, than a particular distribution of social, economic and political power among groups. This new conception of justice necessarily repudiates the ideal of the rule of law — a law that would treat people equally, but not seek to make them equal. To achieve this goal of group justice social engineers proclaim that it is necessary to abandon colour blindness.6
Similar debate is going on in India too. Views supporting the power- sharing concept were put forward during the time of agitation on implementation of Mandal Commission Report not only in the press and by politicians but also by advocates in the court in Indra Sawhney case.7 This view got support from Kuldeep Singh and Sawant, JJ., but from two different angles. Sawant, J. held that “the provision for reservation in appointments under Article 16(4) is not aimed at economic upliftment or alleviation of poverty”. He said that “Article 16(4) is specifically designed to give a due share in the State power to those who have remained out of it mainly on account of their social and therefore educational and economic backwardness.” Thus, it seems Sawant, J. supported the power-sharing concept in the sense of greater democratisation.
However, Kuldeep Singh, J. supported the power-sharing principle on the ground that Article 16(4) provides for adequate representation to “classes” and not to “individuals”. The word backward according to him, does not have any significance in the interpretation of Article 16(4). Thus, according to his interpretation those sections of population in India which are not represented in the services in proportion to their population should be given reservational benefit under Article 16(4).
The purpose of the article is to examine the constitutionality of these assertions in India and USA. In USA there is no constitutional provision providing for set asides or reservations. These are included under the reasonable classification principle under the concept of equality guaranteed to every citizen in the United States. In India we have Article 16(4) which provides that the State can provide for reservations in services to the backward classes who are in the opinion of the State not adequately represented in the services.
But does the adequacy of representation means power-sharing between different groups of the Indian society? What is the purpose of the use of the word “backward” in Article 16(4)? Are the present provisions for reservation in services different from the quota system introduced by the British in India? How has the United States reconciled the concept of equality with the provision for set-asides? Is the Indian approach same or different?
The article is restricted to the question of reservations in services only mainly because the concept of power sharing through quota system is basically relevant in the area of services. Indian and American position is analysed on the social, ideological and constitutional plane. In addition to this, comparison has also been made of social background of caste relations in the two countries.8
Part I of this Article deals with the social and theoretical background. Part II discusses the Indian constitutional position. American constitutional position has been analysed in Part III and Part IV is the conclusion.
Part I
(a)
Social Background
Writers have distinguished Indian society which according to them is governed by status,9 holism and hierarchy10 from the western society which they find to be governed by contract,11 individualism and equality.12 Caste in India plays a very important role. Most of the writers agree that: A caste is a social group having two characteristics: (1) membership is confined to those who are born of members and includes all persons so born; (2) the members are forbidden by an inexorable social law to marry outside the group. Each one of such group has a special name by which it is called. Several of such small aggregates are grouped together under a common name, while these larger groups are but sub-divisions of groups still larger which have independent names.
Several theories have been put forward regarding the origin of caste in India. The American social stratification is basically due to colour. Though blacks and whites are denoted by various names such as race, class, majorityminority etc. some writers refer to them as castes.13 This seems more appropriate as the term “race” reflects prejudices based on biological differences developed out of false belief that people belonging to certain race have certain characteristics relating to behaviour, intelligence etc. On the other hand, the term “class” is used more in the sense of economic status of a particular group of people in relation to a given society. Moreover there are no social and customary hurdles in passing from one class to another. Therefore, caste is the most appropriate term to use for the two groups of blacks and whites. The differences between blacks and whites are socially created as in caste and the membership of the group is as rigid as in the case of caste. It is not easy to pass from one group to another. Intermarriage between two groups is forbidden, if not forbidden it is universally condemned.
A comparative study of caste position in Indian and American society can be made under the following heads: (1) stratification between the castes in the societies; (2) mobility between the groups.
Stratification
Although broadly four, actually the Indian society has been divided into many castes and sub-castes. The different castes contested with each other to be ranked higher in the social scale and to get dominance. O’Mally has recorded that at the time of 1911 census operation there was a general idea in Bengal that the object of the census is not to show the number of persons belonging to each caste but the relative position of different castes and to deal with the question of social superiority. Many castes were aggrieved at the position assigned to them and complained that it lowered them in public estimation.14
While the untouchables were the completely segregated section of the society, interaction among the other castes was not prohibited to a certain level. Moreover, there was economic interdependence among the various castes living within the territorial boundary of a State. Since movements across the border were restricted it stimulated occupational specialisation and economic interdependence. Since the time of British rule territorial boundaries and occupational rigidity became relaxed but caste consciousness did not die. In certain cases modern means of communication helped the caste to organise themselves on political lines also and in today’s India parties are openly organising themselves and seeking votes in the name of caste.
In America blacks were brought as slaves and were treated like a commodity. Their owner controlled their lives. Even after abolition of slavery there was a complete segregation in the lifestyle of the two groups. White community’s solidarity was endangered if a white was found to be pro-black and was branded as a “nigger lover”. In response the blacks made their own protective community and a black that tried to have affinity with whites was termed as “white man’s nigger”. There was no similarity in the social and cultural life of the two groups.15 For a long time the segregation was held desirable by major American institutions. In fact the court initially interpreted the equality clause as separate but equal thus validating the segregation. After a long struggle the segregation was rooted out from the American institutions.16
Mobility between the two groups
As discussed earlier in truth, there used to be tussle between the various castes for domination and for higher rank in the social hierarchy. Thus, there was no fixed position of a caste in social hierarchy. However, the same cannot be said about ritual hierarchy. The lower castes always tried to imitate the way of life and ritual of dominant class. This was known as Sanskritisation. According to M.N. Srinivas, the well-known sociologist, there was often a clash between upper and lower castes in case the lower castes tried to sanskritise themselves. During the British rule the upper castes started westernising themselves in the area of knowledge. The lower castes imitated the higher castes in the process of westernisation. Often Sanskritisation preceded westernisation in relation to a caste desirous of climbing the social scale.
In America since the segregation was based on skin colour “passing” — that is integration of black in the white group was more difficult. The American definition of negro was that even if a person had one drop of blood of a negro in his veins he was termed as a negro. But such a person if had white skin could get assimilated in the white community by secret and illegitimate “passing”. The black community although did not on the whole like it but used to maintain the secret of that person.17 Thus mobility in America was confined to individual level. The caste as a whole could not become a higher caste as happened in India.
(b)
Theoretical Background
The debate over affirmative action revolves around three key concepts: individual, equality and group. While the concept of group rights is a recent one, the origins of equality and individualism are traced to Renaissance period in the 15th and 16th century Italy. Concepts of individualism and equality are supposed to have a simultaneous origin. But later on as Simmel18 points out there grew individualism of inequality where each individual wanted to distinguish himself. Individualism of inequality drew the attention of society to unequal conditions of life in which some sections of population were struggling. The affected sections found that they cannot compete because they largely belong to a group, which has been subjected to oppression traditionally. Therefore, formal equality and independence to compete remains a dream for them unless their group is given special advantages to break off the economic, social and psychological constraints to which it has been subjected for years.
The three concepts, of equality, individual and group, are central to the debate on reservations. They have given birth to different competing ideas on social justice, merit and group identity, which are very much relevant in any discussion on reservation.
(1) Social Justice
Social justice is one of the sub-divisions of the concepts of justice. It is “concerned with the distribution of benefits and burdens throughout a society as it results from the major social institutions — property systems, public organisations etc.”19 David Miller excludes power from among the benefits to be considered under social justice because according to him concepts like democracy and authority are used to evaluate the distribution of power in society. Although he concedes that allocation of other benefits may in practice depend upon the shape of power structure but all it means is that distribution of power is causally rather than conceptually relevant to social justice. Since our discussion of social justice is not abstract theoretical one but takes place in the specific context of reservations, therefore, it would be appropriate to include power within this concept.
The issue of conflict is what should be the basis of distribution — rights, deserts or need. Writers like Raphael, Mill and Hume define justice in terms of rights. Nozick, Hayek and Spencer define justice in terms of deserts. But the socialist writers see justice as satisfaction of the needs of mankind. As stated earlier the problem of social justice is one of tussle between individual and society. Which of the three criteria should be given preference involves the determination of the question whether individual or society should be given preference. It is not to say that the issue is always individual versus society because many individualists contend that their approach furthers the overall well-being of the society. Thus, the difference is often one of emphasis and of the way of approach. The three criteria can be put under the two concepts of equality — formal equality and proportional equality. Formal equality means that law treats every one equal and does not favour any one either because he belongs to the advantaged section of the society or to the disadvantaged section of the society. Concept of proportional equality expects the State to take some affirmative step in favour of disadvantaged sections of society within the framework of liberal democratic polity.
Indian Constitution was framed after the Nehruvian concept of socialism which was a blend of individualism/capitalism and communism of Russia. While basic liberties are guaranteed and individual initiative is encouraged, State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which is not his but social.
The American Constitution was framed with pure individualistic liberal notions in mind. Even these notions were first restricted for a few and later were extended to all citizens of America. America’s road to welfare State started with New Deal programmes of President Roosevelt who was obliged to undertake them in order to recover from the Great Depression. Slowly, America became a welfare State from a purely police State; thus adopting individualism to withstand the onslaught of socialism from Russia.
In this era of neocapitalism and globalisation, both countries are struggling to balance their humanitarian responsibilities with the demands of greater decontrol and private initiative which are integral part of market economy. Its effect on the affirmative action programmes is also to be seen. In America after 1980s due to cut in government jobs and deregulation and cut in military size many blacks lost their jobs. Guided by new ideas California stopped its affirmative action programmes.
In India although the Government is under constant pressure from the lending institutions to cut down its expenses so far no major cut in the job sector has been imposed to affect the protected category candidates. Moreover, the Government does not seem to be in hurry to end or slow down its reservation scheme. However, it may be affected in a way by growing privatisation of public sector enterprises.
(2) The question of merit
In America the issue of merit has invited responses from two opposite streams; one representing the liberal attitude towards race which Peller calls integrationism and Kennedy calls colour blindness; the other from radical constructivists representing critical theorists. According to integrationists, people are treated unjustly and discriminated against when their merit is assessed according to their status rather than according to their traits and products. Therefore, according to this view racial discrimination is unjust and unfair. But adherents of meritocratic ideal are sometimes supporters of affirmative action also. But for them consideration of race remains a regrettable if necessary deviation from the ideal of a colour-blind meritocratic system.
But the radical constructivists “just don’t believe that it is real merit that institutions measure anywhere in the system ...”. According to this view currently dominant groups have the power to create traditions within which they make judgments of merit and these traditions are obviously “culturally and ideologically specific products”. Thus, there can be no objective standard of merit applicable to all groups within the society. The critical race theorists in America term the current standards as “a gate built by a white male hegemony that requires a password in the white man’s voice for passage”.20
However, not all critics of merit are supporters of affirmative action.
In America the opposition of meritarian idea is on two interrelated grounds. It is always the dominant group which imposes its notions of merit, therefore the merit tests may not be the real indicators of a person’s merit. The second argument is put forward by advocates of national diversity. They contend that there cannot be any objective criteria of merit. The views and thinking process of a person can be influenced by the cultural group to which he belongs. It cannot be said that one view is superior to the other because there is no scientific objective criteria of knowledge. Therefore, different views should be given representation in institutions to promote diversity which is healthy for social and political life of the country.
In India the debate over desirability of meritocratic ideal initially was basically centred round the first argument, but in recent years we find that arguments somewhat related to second point have also been put forward. On the first point supporters of reservation contend that,
(1) It cannot be said that backward classes lack merit. Countering this argument the advocates of meritocracy say that it is not that backward classes lack merit, the contention is that the reserved category candidates lack merit.21
(2) The second argument is that efficiency cannot be measured in terms of marks a person gets in tests and exams. Especially, in relation with Article 16(4) it is pointed out that: “Efficiency means, in terms of good government, not only marks in examination, but responsible and responsive service to the people.”22
With regard to the second line of argument an Indian writer says,
“Efficiency in public services particularly in a welfare State, is to be considered not only in terms of individual capacity but also in terms of system’s efficiency. Broad based participation of different segments of population particularly the disadvantaged ones is likely to augment system’s efficiency in a certain sense.”23
However, in Indra Sawhney v. Union of India the majority ruled that there should not be any reservation in certain upper specialities. The posts that were listed by the courts as super specialities included the teaching posts of professors and above if any. Thus, the Court did not consider the diversity interest in education as advocated in America. Criticising the judgment it is contended that “the majority failed to appreciate the real societal interest embedded in representation of all sections of the society in administration”.24
Another criticism which has come up against the objective meritocratic ideal is the existence of corruption in Indian society and lack of any standards. It is contended that there are so many hidden reservations in appointments etc. that it is hypocratic to oppose the reservation policy. Even without reservations people tend to appoint persons from their caste and their relatives. Therefore, it is a farce to say that reservations in any way destroy merit in India.25
(3) Integrationism and nationalism
In the United States race relations are being viewed from two angles — integrationist approach and nationalistic approach. The integrationists emphasise on individual, State neutrality or impartiality, objective assessment and universalism. The nationalist on the other hand stress on ethnicity and groups. According to this approach an individual’s life is largely conditioned by the group to which he belongs. To say that an individual should be looked upon as a separate entity apart from the group is nothing but a way to impose the culture of the dominant group upon minorities. According to integrationist perspective racism is rooted in “prejudice” — the prejudging of person according to mythological stereotypes or “bias” — the process of being influenced by subjective factors. These lead to irrationalism. Its social outlet is “discrimination”. While “prejudice” is contrasted with knowledge, discrimination is contrasted with “neutrality”. Thus, integration means to overcome prejudice which will lead to neutrality that is equal treatment and this will ultimately lead to universalism. Freedom from racial discrimination is one instance of the historical move from status to contract, from caste to individual liberty. Individualism and universalism are thereby linked together. Thus, integrationists view their movement as point of the very idea of progress itself.
The black nationalist position received its first modern wave of sustained mass exposure in 1965 when Willie Ricks and Stokely Camichael began using the term “black power”. According to black nationalists integration was a “subterfuge for white supremacy” and represented a “form of painless genocide”. While integrationists asserted that blacks and whites are essentially the same, nationalists contended that they are different in the sense of coming from different communities, neighbourhoods, churches, families and histories and of being in various ways foreign to each other. The difference between black nationalists and white supremacist is that while the latter locates the difference between two groups on racial grounds, the former attributes it to social history. Thus, nationalists articulated a historicised view of social relations. The idea of nationalist base of social identity is that they are thrown into history with some aspects of social reality already structured to limit some possibilities, while making other ones available.
The Constitution-makers of India expressly rejected the idea of group in favour of individual. It was rejected by the liberals like Pt. Nehru and also by advocates of social justice for dalits like Dr. Ambedkar. Mahatma Gandhi gave the idea that under the proposed constitution village and not the individual should be made the basic unit. But the idea was rejected. People like Pt. Nehru thought that it would subordinate the individual to the community resulting in impeding liberalism. Dr. Ambedkar rejected the idea because for him villages were the seat of caste and faction and would allow little room for individuals to develop their abilities. While Gandhiji had pleaded for reform of caste system, Dr. Ambedkar was in favour of abolition of caste system which was eventually based on hierarchy of groups and it cannot be done away unless the individual was liberated from the constraints of tradition.
In India the problem of integration and ethnicity developed in relation to tribal people, religious minorities and language. It did not arise in relation to caste as such because as shown earlier the tendency of lower placed caste for Sanskritisation and upward mobility. The lower placed castes tried to imitate the values and way of living of higher castes and wanted to be recognised as such. They never tried to stress upon their separateness, maybe because they hardly can be said to have a separate culture since they were part of a larger religious culture and had within themselves values of that culture. A backward caste in India was not a separate cultural group but a lowly placed group in the caste hierarchy.
Part II
Reservations and the Constitution of India: Equality
of Status and Opportunity to all
The Constitution of India seems to assume that at the time of independence all groups of Indian society were not placed on equal footing. A small section of the society had advanced under the British rule. But a large number of people were suffering from illiteracy, ignorance and poverty. Many sections of the society were cut off from the mainstream of social life. Therefore, the Constitution of India was so framed as not only to remain a formal legal document but also to become a social document with social and economic transformation of the country as its goal.26 With this aim the Constitution by its various provisions like Articles 15(3), 15(4), 16(4) and Part XVI (Articles 330 to 342) tries to promote positive equality by providing compensatory justice to certain classes of citizens. Among these provisions Article 16(4) is an important as well as a controversial provision which legitimises reservation in services.
Article 16(1) ensures that there shall be equality of opportunity for all citizens in matters relating to employment on appointment to any office under the State. However, Article 16(4) explains27 that nothing in Article 16 shall prevent the State from making any provision for the reservation in appointments or parts 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. “Adequacy of Representation” has become a controversial issue and may involve clashes between different sections of society if not interpreted in its proper light. The intention of the Constitution and approach of the Supreme Court on this issue can be studied under the following heads:
- 1. background to the Constitution of India;
- 2. determination of backwardness;
- 3. reservation in promotions;
- 4. extent of reservation;
- 5. reservation of single post;
- 6. reservations and requirement of efficiency.28
(a) Background to the Indian Constitution
The quota system introduced by British provided for group representation. It was introduced by the British in India ostensibly to enable each community to have an equal share in power on the basis of population but their real objective was to “divide and rule”. Thus, in 1985 in the Police Department the appointments were made in proportion for the Brahmins, Muslims and other Hindu castes. The Government of India Act, 1919 provided for communal representation for Muslims, Sikhs, Anglo-Indians, Indian Christians, depressed classes aborigines etc. The Government of India Act, 1935 contained similar provisions. In 1929-30 reservation in government jobs was assured to minorities up to 25%. Through government order in Madras a clear-cut reservation procedure was laid down by order of 1927. The following compartmental reservation was provided.
- 1. Non-Brahmin Hindus 5 of 12 posts i.e. 42%.
- 2. Brahmins 2 of 12 posts i.e. 17%.
- 3. Muslims 2 of 12 posts i.e. 17%.
- 4. Anglo-Indians 2 of 12 posts i.e. 17%.
- 5. Depressed classes 1 of 12 posts i.e. 18%.
India gained independence in 1947. But the joy of independence was marred by communal riots, bloodshed and partition of the country. Nationalist leaders of India and historians blamed the divide and rule policy of the Government for the misfortune which befell on the country. They cited the above provisions as part of a planned effort by the British to keep India divided in order to perpetuate their rule. Therefore submitting its recommendations, the Advisory Committee on Fundamental Rights, Minorities and Tribals and Excluded Areas, set up by the Constituent Assembly, remarked:
“The first question we tackled was that of separate electorates; we considered this as being of crucial importance both to the minorities themselves and to the political life of the country as a whole. By an overwhelming majority we came to the conclusion that the system of separate electorates must be abolished in the new Constitution. In our judgment this system has proved one of the main stumbling blocks to the development of a healthy national life. It seems specially necessary to avoid these dangers in the new political conditions that have developed in the country and from this point of view arguments against separate electorates seems to be absolutely decisive.”29
In the area of services emphasising to the need of IAS and IPS through direct and impartial recruitment Deputy Prime Minister Sardar Vallabhbhai Patel pointed out:
“The service must be above party and we should ensure that political considerations either in its recruitment or in its discipline and control are reduced to the minimum if not eliminated altogether.”30
On 13-12-1946 Pt. Nehru moved the Objective Resolutions in the Constituent Assembly which were to serve as the basic objectives and guiding principles to be kept in view in the process of constitution making. Clauses (5) and (6) of the Objectives Resolutions while ensuring to all people freedom and equality included provision for “adequate safeguards shall be provided for minorities; backward and tribal areas, and depressed, and other backward classes;”
Clause (5) of Article 3 of the Draft Articles prepared by the SubCommittee on Fundamental Rights provided:
“All citizens are entitled to equal opportunity:
(a) in matters of public employment and office of power and honour;
(b) in the exercise of trade, profession or calling and
(c) in the exercise of franchise according to the law of the Union; and no citizen shall be denied the right on grounds of religion, race, colour, caste or language.”31
When the draft clause came to be discussed before the Advisory Committee Alladi Krishnaswami Ayyar objected to the affirmative assertion in the first part of the clause on the ground that the claims of minorities could not be adequately met without an additional sub-clause if the affirmative expression was changed to a negative one as in Section 298 of the 1935 Act.32
K.M. Munshi, on the other hand, stressed the view of the SubCommittee that the general principle regarding equality of opportunity to all must be asserted in affirmative; and if any exception was to be provided in favour of backward communities, that should be done by incorporating a separate sub-clause to that effect. Dr. Ambedkar also disagreeing with Krishnaswami Ayyar stated that between the members of the same minority, guaranteeing of equality of opportunity might become essential.
The exception clause as drafted by the ad hoc committee read:
“Nothing herein contained shall prevent the State from making provisions for reservation in favour of classes not adequately represented in the public services.”33
Ujjal Singh expressed the fear that no minority community would be given representation in the services on a scale higher than what it would get on a population basis because of the words, “not adequately represented”. He pointed out that this would be unfair to the Sikhs for whom 20 per cent of public appointments were at the time reserved in the Punjab though they formed only 13 per cent of the population. But it was opined by many that reservations are not limited to the proportion of population. Rajgopalachari took this position. Rajgopalachari amongst others pointed out that reservations are not limited to the proportion of population.
The provision after being accepted by the Advisory Committee was discussed in the Constituent Assembly. The clause as accepted by the Constituent Assembly was reproduced in the Constitutional Adviser’s Draft Constitution of October 1947 as clause (12) without any substantial alterations and appeared as Article 10 of the Draft Constitution prepared by the Drafting Committee with one important modification: instead of the words “in favour of any particular class of citizens” the words “in favour of any backward class of citizens” were inserted. Draft Article 10 read as follows:34
“(1) There shall be equality of opportunity for all citizens in matters of employment under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or any of them, be ineligible for any office under the State.
(3) 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 who, in the opinion of the State, are not adequately represented in the services under the State.”
After the Draft Constitution was circulated R.R. Diwakar and S.V. Krishnamurthy Rao proposed the addition of words “economical or culturally” before the word “backward” in clause (3); T.A. Ramalingam Chettiar suggested the deletion of the word “backward” from clause (3); Upendranath Barman proposed that in clause (3) before the word “backward” the words “the Scheduled Castes or” be inserted.
B.N. Rau, in his notes on the amendments commented that while there could be no great objection to the amendment proposing the addition of the words “economically or culturally”, it was unnecessary. As for the omission of word “backward” from clause (3) he said, it would in that case be open to a State to reserve posts in favour of any class of citizens who are not adequately represented in the service and would thus extend the scope of the clause.35
Insertion of the word “backward” was basically criticised by the members of the minority community on the ground that it would include only backward members of the majority community. They wanted adequate representation in services for minorities.
Replying to the criticism of insertion of the word “backward” Dr. Ambedkar said:
“Unless you use same such qualifying phrase as ‘backward’ the exception made in favour of reservation will ultimately eat up the rule altogether.... That, I think ... is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word ‘backward’ which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly”.36
Replying to the suggestion that the words “Scheduled Caste” be added before “backward” K.M. Munshi said that it was unnecessary and added:
“What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the State.... At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; .... the word ‘backward’ signifies that class of people ... does not matter whether you call them untouchables or touchables belonging to this community or that ... a class of people who are so backward that special protection is required (for them) in the services.”
In sum, the following points emerge from the Constituent Assembly proceedings:
1. Constitution-makers agreed in favour of a polity above which would have a national and secular identity.
2. They wanted the services to be above politics.
3. Word “backward” was specifically introduced so that the general guarantee of equality under Article 16(1) does not become a dead letter.
4. (2) To make the determination of backwardness non-justiciable it was provided that representation can be given to classes which in the opinion of the State are not adequately represented. Making provision non-justiciable implied that the provision was not in the nature of legal right but its implementation depended on the need of its ameliorative nature.
5. It was for a period of 10 years signifying that it is a temporary provision.
(b) Determination of backwardness: caste criteria or the class criteria: secular identity v. ethnic identity
Supreme Court of India in the beginning tried to define backwardness in a secular tone. In M.R. Balaji v. State of Mysore37 P.B. Gajendragadkar, J. speaking for the Constitution Bench pointed out that in determining the social backwardness of groups or class of citizens caste cannot be made the sole or dominant test in that behalf.
The general attitude of the Supreme Court was that the Constitution uses the word “class” and not “caste”. Therefore, although caste might be one of the relevant factors it cannot be made the sole determining factor. While reservation only on the basis of caste would be violative of Article 15(4) but in Indian circumstances caste as a whole can be backward and can get the benefit of reservation on that basis because caste is also a class of citizen. On the other hand, a classification is not vitiated on the ground that it does not use caste as one of the factors. Thus while measures such as those taken in R. Chitralekha v. State of Mysore38 were approved; measures such as those taken in Triloki Nath Tiku v. State of J&K39 were struck down.
In R. Chitralekha v. State of Mysore38 the Government classified the socially and educationally backward classes on the basis of economic condition and occupation for the purposes of Article 15(4). Both Subba Rao, J. (giving the majority decision) and Mudhalkar, J. (dissenting) agreed that the constitution used the word “class” and not “caste”. Therefore “under no circumstance a ‘class’ can be equated to a ‘caste’ though the caste of an individual or a group of individuals may be considered along with other relevant factors in putting him in a particular class”. A classification is not vitiated on the ground that it does not use caste as one of the factors.
In Triloki Nath Tiku v. State of J&K39 the petitioners contended that they had been discriminated against solely on the ground of religion and place of residence. Junior officers were promoted over officers senior to them on the ground solely that they — the junior members belonged to the Muslim community or that they were Hindus belonging to the Jammu Province of the State of Jammu and Kashmir. The State contended that Muslims as a community in the whole of the State of Jammu and Kashmir formed a backward class of citizens and they were not adequately represented in the services of the State.
Subba Rao, J. speaking for the court held that “backward class” is not used as synonymous with “backward caste” or “backward community”. The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class. Again he observed that for the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.
By an order of the Government 50% vacancies in the State services were reserved for the Muslims, out of the remaining 50%, 40% were reserved for the Jammu Hindus and 10% for the Kashmiri Hindus.40 The court held that it was not a policy of reservation of some appointments or posts but a scheme of distribution of all the posts communitywise and, therefore, it was unconstitutional being contrary to Article 16(1) and 16(2) and it could not be saved by Article 16(4).
Again it was on the basis of this logic that the Supreme Court approved the State Government measure in the case of K.S. Jayasree v. State of Kerala41. In this case the State Government ordered that members of families consisting of Ezhavas whose aggregate annual income was below Rs 6000 would be entitled to admission to the seats reserved for socially and educationally backward class in the MBBS course was challenged. The petitioners contended that there was no reason to exclude an insignificant part of the community on the basis of income alone. The State contended that the government order “was not in violation of Article 15(4) because the expression ‘backward class’ in Article 15(4) is not used as synonymous with backward caste or backward community”. The Court accepted the contention of the State. Therefore neither caste nor poverty alone can be the criteria though both are relevant factors in deciding the backwardness of a class.
However, there prevailed a view among many of the Supreme Court judges that class should not be identified on the basis of caste at all. In K.C. Vasanth Kumar v. State of Karnataka42 Chandrachud and Desai, JJ. opined in favour of secular criteria for determination of social backwardness in place of caste criteria contending that caste criteria did not include that section of persons who did not follow caste criteria. They further contended that caste based reservations helped only the well-off sections of that caste getting the advantage of reservation. On the other hand, some of the judges like Chinnappa Reddy, J. were not in favour of total exclusion of caste criteria.
In Indra Sawhney v. Union of India7 the majority relying on preconstitutional rules and Constituent Assembly debates held that in the Indian context class is used as a social class and not as a class in the Marxist sense of the term. In India especially in rural areas caste-occupation-poverty is an ever-present reality. Hence a caste can be and quite often is a social class in India. If it is socially backward it would be a backward class for the purposes of Article 16(4). Sawant, J. held that the backward class of citizens referred to in Article 16(4) is the socially backward class of citizens whose educational and economic backwardness is on account of their social backwardness. A caste by itself may constitute a class.
However, Thommen, Kuldeep Singh and Sahai, JJ. dissented and insisted on educational social and economic backwardness.
As to the nature of backwardness it was held in the case of Janki Prasad Parimoo v. State of J&K43 and in Vasanth Kumar v. State of Karnataka42 that backwardness under Article 16(4) meant both social and educational backwardness. However, this view was rejected in the case of Indra Sawhney v. Union of India7 and it was held that backwardness under Article 16(4) is wider than under Article 15(4). Certain classes which may not qualify as backward under Article 15(4) may qualify as such under Article 16(4). Backwardness under Article 16(4) is basically social backwardness, therefore, it is not social and educational as required in Article 15(4).
An important observation was that of Sawant, J. that a class which is not socially and educationally backward though economically or even educationally backward is not a backward class for the purposes of Article 16(4), because the purpose of reservations under Article 16(4) is not alleviation of poverty but to give such classes an adequate share in power.44
As to the degree of backwardness it was held in Janki Prasad Parimoo v. State of J&K43 that it should be comparable to the backwardness of Scheduled Castes and Scheduled Tribes. Similar views were expressed in K.S. Jayasree v. State of Kerala41 and by Chandrachud, J. in K.C. Vasanth Kumar v. State of Karnataka42. However, Chinnappa Reddy, J. in this case held the opposite view. Same view was expressed earlier in State of A.P. v. U.S.V. Balram45. In Indra Sawhney v. Union of India7 the majority held that the backwardness of the other backward classes need not be comparable to the backwardness of the Scheduled Castes and Scheduled Tribes. Thommen, J. gave the dissenting opinion.
Although the Supreme Court has finally accepted that caste can be the determinant of backwardness yet it tried to strike a balance with the secular notion by bringing in the concept of Creamy layer. Views have often been voiced in the court and outside for skimming the creamy layer amongst the protected communities while giving them benefit under Article 15(4) or 16(4). Three important cases involving the issue of creamy layer which came before the Supreme Court are K.S. Jayasree v. State of Kerala41, Indra Sawhney v. Union of India7 and Ashoka Kumar Thakur v. State of Bihar46. In K.S. Jayasree v. State of Kerala41 the Supreme Court validated the government order for providing reservational benefits only to those members of the Ezhava community whose aggregate income was below Rs 6000 per annum.
In Indra Sawhney v. Union of India7 all the Judges except Pandian, J. held that means test should be adopted to exclude the better off individuals from the protected group for the purpose of reservation. Kania, C.J. and Venkatachaliah, Ahmadi and Jeevan Reddy, JJ. held that the very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness it should broadly be the same in a given class. If some of the members are far too advanced socially (which in context, necessarily mean economically and may also mean educationally) the connecting thread between them and the remaining class snaps. Such exclusion benefits the truly backward. They, however, added that the basis of exclusion should not be only economic unless economic advancement is so high that it necessarily means social advancement.
The difference of opinion has been on the question of what should be the criteria for determining the creamy layer whether it should be decided on the basis of economic well-being or social advancement should also be taken into account. Sawant, J. held that it has to be judged on the basis of the social capacities gained by them to compete with the forward classes. So long as the individuals belonging to the backward classes do not develop sufficient capacities of their own to compete with others they can hardly be classified as forward. Thommen, J.47 however, stressed on the economic criteria. According to him it is not sufficient that the person termed as backward is so by reason of illiteracy, ignorance, social backwardness. If despite these handicaps they have necessary financial strength to raise themselves the Constitution does not extend the benefit of reservation to them.
In Ashoka Kumar Thakur v. State of Bihar46 constitutional validity of the criteria for determining the “creamy layer” for the purpose of exclusion from backward class laid down by the State of Bihar and State of Uttar Pradesh was struck down because of overinclusion.48
Thus, we find that although the Supreme Court has accepted that caste can be the criteria for giving reservations; it still maintains that the provision is for backward sections of the population who for the time being need support. Although backwardness can be identified on the basis of caste but it is not the caste as such which is given proportionate representation. It is the individuals comprising a class who are suffering because they are members of a socially, economically and educationally depressed class who need support. Hence the concept of creamy layer, tries to exclude the advanced sections of the population from getting the benefits of protective measures. This also explains the validation of 10% reservation for poor sections among the forward castes.
One view can be that the Supreme Court is not governed by any ideology but is just trying to balance immediate demands. It is true that the Court is balancing but it is balancing not only the demands of various sections of society but also the demands which the Constitution makes to its organs who implement it.49 Jeevan Reddy, J. while conceding that a caste can be a class and holding that in India Marxist notion of class does not exist; applied the same notion in his definition of creamy layer with a difference that economic criteria was not given special significance. But this was only recognition of a fact that social and psychological factors are as much important in judging a man’s competence to compete as is the economic one. Thus, majority of the judges of the Supreme Court are still not in favour of providing reservational benefits on sectarian grounds.
(c) Extent of reservation: individual’s right to equality v. group’s right to equality
The question of extent of reservation involved two questions:
1. Whether there was any upper limit beyond which reservation was not permissible.
2. Whether there was any limit to which seats can be reserved in a particular year; in other words the issue was whether the percentage limit applied only on the total number of posts in the cadre or to the percentage of posts advertised every year as well.
The question of extent of reservation is closely linked to the issue whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an application of Article 16(1). If Article 16(4) is an exception to Article 16(1) then it needs to be given a limited application so as not to eclipse the general rule in Article 16(1). But if the former is taken as an application of the latter, any amount of reservation could be permissible since it would be furthering the general rule in Article 16(1).
Maximum limit of reservation possible
Word of caution against excess reservation was first pointed out in G.M., Southern Rly. v. Rangachari50 Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration.
However, the question of extent of reservation was not directly involved in Rangachari case50. It was directly involved in M.R. Balaji v. State of Mysore37 with reference to Article 15(4). In this case 60% reservations under Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case.51
But in State of Kerala v. N.M. Thomas22 Krishna Iyer, J. expressed his concurrence to the views of Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4). If a State has 80% population which is backward then it would be meaningless to say that reservation should not cross 50%.
However, in Indra Sawhney v. Union of India7 the majority held that the rule of 50% laid down in Balaji case37 was a binding rule and not a mere rule of prudence.
Giving the judgment of the court Reddy, J.52 stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant.53 He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of principle of equality under Article 1454. (emphasis added)
Are reserved category candidates free to contest for vacancies in general category
In Indra Sawhney v. Union of India7 Reddy, J. noted that reservation under Article 16(4) do not operate on communal ground. Therefore if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class.55 Similarly, in R.K. Sabharwal v. State of Punjab56 the Supreme Court held that while general category candidates are not entitled to fill the reserved posts; reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the backward classes are operative, the same have to be followed.
It would be appropriate to point out here that these rulings were logical outcome of the Supreme Court stand that Article 16(4) is an exception to Article 16(1) and (2).
Number of vacancies that could be reserved
Wanchoo, J. who had given dissenting judgment in G.M. Southern Rly. v. Rangachari50 observed that the requirement of Article 16(4) is only to give adequate representation and since Constitution-makers intended it to be a short-term measure it may happen that all the posts in a year may be reserved. He opined that reserving a fix percentage of seats every year may take a long time before inadequacy of representation is overcome. Therefore, the Government can decide to reserve the posts. After having reserved a fixed number of posts the Government may decide that till those posts are filled up by the backward classes all appointments will go to them if they fulfil the minimum qualification. Once this number is reached the Government is deprived of its power to make further reservations. Thus, according to Wanchoo, J. the adequacy of representation has to be judged considering the total number of posts even if in a single year or for few years all seats are reserved provided the scheme is short-term.
The idea given by Wanchoo, J. in Rangachari case50 did not work out in practice because most of the time even for limited number of reservations, every year qualified backward class candidates were not available. This compelled the government to adopt carry-forward rule. This carry-forward rule came in conflict with Balaji37 ruling. In cases where the availability of reserved category candidates is less than the vacancies set aside for them, the Government has to adopt either of the two alternatives:
(1) the State may provide for carrying on the unfulfilled vacancies for the next year or next to the next year, or
(2) instead of providing for carrying over the unfulfilled vacancies to the coming years, it may provide for filling of the vacancies from the general quota candidates and carry forward the unfilled posts by backward classes to the next year quota.57
But the problem arises when in a particular year due to carry forward rule more than 50% of vacancies are reserved. In T. Devadasan v. Union of India58 this was the issue. Union Public Service Commission had provided for 17-1/2% reservation for Scheduled Castes and Scheduled Tribes. In case of non-availability of reserved category candidates in a particular year the posts had to be filled by general category candidates and the number of such vacancies were to be carried forward to be filled by the reserved category candidate next year. Due to this rule of carry forward reservation in a particular year amounted to 65% of the total vacancies. The petitioner contended that reservation was excessive which destroyed his right under Article 16(1) and Article 14. The court on the basis of decision in Balaji case37 held the reservation excessive and, therefore, unconstitutional. It further stated that the guarantee of equality under Article 16(1) is to each individual citizen and to appointments to any office under the State. It means that on every occasion for recruitment the State should see that all citizens are treated equally. In order to effectuate the guarantee each year of recruitment will have to be considered by itself.
Thus, majority differed from Wanchoo’s, J. decision in Rangachari case50 holding that a cent per cent reservation in a particular year would be unconstitutional in view of Balaji37 decision.
Subba Rao, J. gave dissenting judgment. He relied on Wanchoo’s, J. judgment in Rangachari case50 and held that Article 16(4) provides for adequate representation taking into consideration entire cadre strength. According to him, if it is within the power of the State to make reservations then reservation made in one selection or spread over many selection is only a convenient method of implementing the provision of reservation. Unless it is established that an unreasonably disproportionate part of the cadre strength is filled up with the said castes and tribes, it is not possible to contend that the provision is not one of reservation but amounts to an extinction of the fundamental right.
In State of Kerala v. N.M. Thomas22 under the Kerala State and Subordinate Services Rules, 1950 certain relaxation was given to Scheduled Caste and Scheduled Tribe candidates passing departmental tests for promotions. For promotion to upper division clerks from lower division clerks the criteria of seniority-cum-merit was adopted. Due to relaxation in merit qualification in 1972, 34 out of 51 vacancies in upper division clerks went to Scheduled Caste candidates. It appeared that the 34 members of SC/ST had become senior most in the lower grade. The High Court quashed the promotions on the ground that it was excessive. The Supreme Court upheld the promotions. Ray, C.J. held that the promotions made in services as a whole is no where near 50% of the total number of the posts. Thus, the majority differed from the ruling of the court in Devadasan case58 basically on the ground that the strength of the cadre as a whole should be taken into account. Khanna, J. in his dissenting opinion made a reference to it on the ground that such excessive concession would impair efficiency in administration.
In Indra Sawhney v. Union of India7 the majority held that 50% rule should be applied to each year otherwise it may happen that (if entire cadre strength is taken as a unit) the open competition channel gets choked for some years and meanwhile the general category candidates may become age barred and ineligible. The equality of opportunity under Article 16(1) is to each individual citizen while special provision under Article 16(4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other.
However, again in R.K. Sabharwal v. State of Punjab56 which was a case of promotion and the issue in this case was operation of roaster system, the Court stated that entire cadre strength should be taken into account to determine whether reservation up to the required limit has been reached. With regard to ruling in Indra Sawhney case7 that reservation in a year should not go beyond 50% the Court held that it applied to initial appointments. The operation of a roaster, for filling the cadre strength, by itself ensures that the reservation remains within the 50% limit.59 In substance the court said that presuming that 100% of the vacancies have been filled each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate. The Court was concerned with the possibility that reservation in entire cadre may exceed 50% limit if every year half of the seats are reserved. It quoted with approval the judgment of Division Bench of the Allahabad High Court60 stating that if reservation is permitted in the vacancies after all the posts are filled in a cadre then serious consequences would ensue and the general category is likely to suffer considerably. The Constitution (Eighty-first Amendment) Act, 2000 added Article 16(4B) which in substance gives legislative assent to the judgment in Sabharwal case56.
(d) Reservation in promotions: equality v. efficiency
Article 16(4) states that reservation in services may be made for backward class of citizens who are not adequately represented in services. The question that arose was whether requirement of adequacy of representation is only quantitative or qualitative as well. The issue was related to legality of reservation in promotions.
In G.M. Southern Rly. v. Rangachari50 it was contended by the respondent that Article 16(4) applied only to initial appointments and not to promotions. Therefore, as such provision for reservation in promotion is contravening Article 16(1). Gajendragadkar, J. held that condition precedent for application of Article 16(4) is inadequate representation which may refer to “size” as well as “values”, numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one and, therefore, reservations will apply not only to initial appointments but to selection posts as well. Wanchoo and Ayyangar, JJ. however, dissented and held that adequate representation connotes only quantitative representation and not qualitative. According to Wanchoo, J. adequacy of representation was to be considered by taking into account the particular service as a whole and it cannot be broken up into grades. Had it been the intention of the Constitution-makers the wordings of Article 16(4) would have been different, he contended. He further held that Article 335 which requires efficiency to be maintained in services in effect prohibits reservations in promotions. Ayyanger, J. apprehended that if we consider adequacy of representation with regard to “value” also it may create problem in single posts and one post may remain reserved for all times.
In State of Punjab v. Hira Lal61 the Punjab Government passed an order providing for reservation. The order provided that the first block of 10 vacancies would be reserved for Scheduled Castes/Tribes and Backward Classes. Backward class officials were to be considered only if no official of Scheduled Caste and Scheduled Tribe was available.
The High Court ruled that reservation in promotion was valid in view of the Supreme Court judgment in G.M. Southern Rly. v. Rangachari50 but the Government has violated Article 16(1) by reserving the first cut of a group of 10 posts for the Scheduled Castes, Scheduled Tribes and Backward Classes. However, the Supreme Court rejected the argument of counsel of the respondents that reservation in promotion would result in injustice as a person getting the benefit of the reservation may jump over the heads of several of his seniors not only in his own grade but even in higher grades. The Court observed it is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors but the Constitution-makers thought fit in the interests of the society as a whole that the backward class of citizens of this country should be afforded certain benefits over others.
In State of Kerala v. N.M. Thomas22 and in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India62 also special provision for reservation in promotion was held to be valid. In both cases however the Supreme Court found that care has been taken that efficiency is not impaired.
The question was again raised in Indra Sawhney v. Union of India7. The Supreme Court unanimously held that reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. It was contended that providing reservation in promotion multiplies the risk to efficiency in administration. It would also result in the creation of a permanent separate category apart from the mainstream — a vertical division of the administrative apparatus. Efficiency would be affected adversely in a twofold way. First, there would not be any will to compete by the backward class members and secondly, it would cause heart-burning and frustration in the non-favoured group resulting in loss of efficiency.
However, Parliament amended the Constitution and added Article 16(4A) which gives validity to reservation in promotions done for Scheduled Castes and Scheduled Tribes.
The Supreme Court of India again stepped in to balance the conflicting interests. In R.K. Sabharwal v. State of Punjab56 and Union of India v. Virpal Singh Chauhan63 it held that although reservation in promotion was valid, such reservation will not affect the seniority order. Thus, a person getting the benefit of reservation in promotion will not get added seniority also. His seniority will be governed by the panel position.
However, Parliament has again made the decision in Sabharwal case56 ineffective by amending the Constitution and adding Article 16(4A)64 which provides that Scheduled Castes and Scheduled Tribes getting reservation in promotion would also get the benefit of seniority.
(e) Reservation of single post: reservations v. equality of opportunity
The conflict between equality of opportunity for all and special provisions for some classes arose in cases involving reservation of single posts. The issue first arose in Arati Ray Choudhury v. Union of India.65 In this case the Supreme Court held that when there is only one reserved vacancy and that is treated as unreserved then the reservation can be carried forward and will be applicable even if subsequently there is only a single vacancy. This will not violate Articles 14 & 16 of the Constitution.
In Chakradhar Paswan (Dr) v. State of Bihar66 the Government had grouped together all the Class I posts (1) Director of Indigenous Medicines, (2) Deputy Director (Homoeopathic), and (3) Deputy Director (Unani)]. The post of Director was treated as unreserved, the second post viz. Deputy Director (Homoeopathy) was treated as reserved. All the three posts had different pay scales. It was held by the Supreme Court that reservation cannot be so made as to create a monopoly of any class on a post. The rule in effect meant 100% reservation to the post of Deputy Director (Homoeopathy) because these posts cannot be grouped together and consequently it was a single post. The Court distinguished this case from Arati Ray Choudhury case65 stating that it involved the question of roster.
In Bhide Girls Education Society v. Education Officer, Zila Parishad, Nagpur67 the Court followed the decision in Chakradhar Paswan v. State of Bihar66 and held that reservation to single post is unconstitutional. However in Union of India v. Madhav68 the Supreme Court held that even if there is a single post, if the Government has applied the rule of rotation and the roaster point to the vacancies that had arisen in the single-point post and were sought to be filled up by the candidates belonging to the reserved categories at the point on which they are eligible to be considered, such a rule is not violative of Article 16(1) of the Constitution. The Court approved the earlier decision in State of Bihar v. Bageshwari Prasad69 holding that reservation of single post according to roaster rule was not unconstitutional and had distinguished Chakradhar Paswan66 decision.
Thus, by applying the roster rule to single posts, the Supreme Court has tried to give equal opportunity to all.
Part III
Provisions for set aside and The American Constitution:
Equality for All
Liberty and equality of opportunity are two essential features of American legal and professional culture.70 However, America’s journey on the road of equality has been from Aristotelian concept of equality71 to the modern concept of equality involving affirmative action.
President Franklin Delano Roosevelt wrote the first executive order barring racial discrimination in the federal government and war industries. He also created a fair employment practices committee. President Johnson created an office of Federal Contract Compliance Programmes (“OFCCP”) which required major government contractors to set goals and timetables for the employment of members of protected groups. It was aborted under pressure from Unions and the General Accounting Office. President Nixon revived it and issued the “Philadelphia Order” which required that federal construction contractors in the Philadelphia area show affirmative action in promoting the employment of members of protected group.
The constitutionality of affirmative action programmes in the nature of set-asides was first raised in Regents of the University of California v. Bakke72 before the U.S. Supreme Court. The matter involved the constitutionality of a set-aside programme in an educational institution. Although the programme in the specific case was held unconstitutional the Court held that a school may consider race as one factor in the admission process.
In the area of services the legality of any discriminatory provision has to be judged by applying Title VII of the Civil Rights Act, 1964 (if the services are private), the due process clause in the Fifth Amendment and the Fourteenth Amendment. Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice to discriminate against any individual on the basis of race, colour, religion, sex or national origin.73 When a violation of the Act is found, the district court may, order such affirmative action ... or any other equitable relief as the court deems appropriate. However, Section 703(g) of the Act forbids the use of preferential treatment to remedy an imbalance between minority and non-minority employees.74
Notwithstanding Section 703(g), a number of courts have found that preferential treatment may be an acceptable remedy for a violation of Title VII when there is a history of discrimination, whether it was intentional or de facto. While some of these fail to mention Section 703(g), others reason that the section was not intended to prohibit the use of a preferential remedy where an imbalance is a result of past unlawful discrimination.75 Employment discrimination was also prescribed by the Civil Rights Act, 1866 now 42 USC § 1981 and Civil Rights Act of 1871 now 42 USC § 1983.
42 USC § 1981 has been interpreted to provide a remedy for private acts of employment discrimination.76 42 USC § 1983 proscribes any deprivation of constitutional rights under colour of State authority and has been interpreted to provide remedy for public sector employment discrimination based on race, sex or national origin.77
The Constitution of the USA guarantees to every individual equal protection against state action under the Fourteenth Amendment and against federal action under the due process clause of the Fifth Amendment. Classifications based on race and national origin have been held to be suspect, that is, justices will apply “strict scrutiny” to determine whether the law is invidious. The use of these classifications will be invalid unless they are necessary to promote a “compelling” or “overriding” interest of the Government.
The question that has been raised is whether classifications for the affirmative action will be considered to be “compelling” or “overriding” interest of the Government. As the case analysis in subsequent pages will show the Court has probably followed Black’s, J. judgment in Korematsu v. United States.78 In this case persons of Japanese origin were temporarily excluded from services in the wake of the Second World War and were placed under detention. The Court held that since the country was engaged in war there was a compelling State interest in such classification. However, the Court also stated that racial classifications were suspect and should be subjected to strict scrutiny.
In United Steel Workers v. Weber79 the issue was whether a private employer’s voluntary adoption of an affirmative action programme reserving half the spaces in a training programme for minority applicants violated Title VII’s prohibition against the use of race as a criterion for employment decisions. Five judges held that preferential training of minorities did not violate Title VII. First, the Court held that the contested affirmative action plan, instead of conflicting with Title VII, in fact furthered the Statute’s goal of “breaking down old patterns of racial segregation and hierarchy” in “traditionally segregated job categories”. Second, the Court noted that the plan did not “unnecessarily trammel the interests of white employees”. It did not, for example, “require the discharge of white workers”, or “create an absolute bar to the advancement of white employees”. “Moreover” the Court noted the plan was a “temporary measure (that) is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance”.
In Fullilove v. Klutznick80 the Supreme Court upheld the constitutionality of minority business enterprise provision of the Public Works Employment Act. This provision required 10% of the amount of every federal public works project grant to be expended for work done by minority business enterprises. The federal programme was upheld. Three sets of opinion could be discerned in this case. Chief Justice White and Powell found the Act to be a permissible use of the federal power to eliminate or redress discrimination in federal contract. Justice Powell found that the federal programme could be upheld under a compelling interest test, specifically rejecting the contention that in the remedial context the congress must act in a wholly “colour-blind fashion”. Justice Burger held that there had to be “careful judicial evaluation” to ensure that racial or ethnic criteria were not used in an unconstitutional manner. Justice Marshall in an opinion joined by Justices Brennan and Blackman advocated the use of a test which would require remedial racial classifications to be substantially related to an important governmental objective. Justices Stevens, Steward and Rehnquist dissented and opposed racial classifications for granting governmental benefits.
In Wygant v. Jackson Board of Education81 the question was whether a school board, consistent with the equal protection clause, may extend preferential protection against lay-offs to some of its employees because of their race or national origin. Majority of the Supreme Court held the scheme to be unconstitutional. Justice Powell delivering the judgment of the Court held that societal discrimination alone is not sufficient to justify a racial classification. It is necessary to share prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination. The Court further pointed out that the scheme of set-aside was validated in Fullilove v. Klutznick82 because the actual burden borne by non-minority firms was relatively light. Since the present scheme was one of layoffs not of initial appointments the injury inflicted on non-minority people is greater. In cases involving hiring goals the burden imposed is diffused, and often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives.
The issue again came up in United States v. Paradise.83 In 1972 the district court sought to correct and eliminate the present effects of past discrimination by ordering the hiring of one black trooper for each white trooper hired until blacks were 25% of the State trooper force, and by enjoining the Department from using employment practices that had the purpose or effect of racial discrimination in hiring or promotions. In 1983, the District Court ordered that 50% of future promotions to upper ranks go to black troopers so long as qualified blacks were available and the rank was less than 25% black. The Court of Appeals and then the Supreme Court affirmed the 50% promotion order.
The Supreme Court rejected the claim, now pressed by the United States that the federal court order violated the equal protection clause of the Fourteenth Amendment. The plurality in the Court concluded that the relief satisfied even strict scrutiny and served the “compelling interest” in remedying past and present discrimination by a State actor.
The facts in City of Richmond v. J.A. Croson Co.84 were similar to that Fullilove v. Klutznick Crason80. The case involved the constitutionality of a plan requiring prime contractors to give at least 30% of the dollar amount of each city construction contract to minority business enterprises. The plan, which was to expire after five years also authorised waivers of the set-aside if qualified MBEs were unavailable or unwilling to participate. The Fourth Circuit Court had applied the Fullilove80 test which deferred to Congress judgment that past discrimination had impeded minority participation in the construction industry. The Supreme Court vacated the appellate court’s opinion, and remanded with instructions to reconsider the case in light of the court’s intervening decision in Wygant v. Jackson Board of Education.81 In Wygant81 the plurality had held that municipality cannot use racial preferences to remedy societal discrimination. On remand striking down the set-aside programme the Court concluded that the city had failed to demonstrate a compelling governmental interest.
In Metro Broadcasting, Inc. v. FCC85 a limited preference programme to increase the number of minority owners of broadcast stations was challenged. One of the major issue was whether and to what extent the FCC’s desire to promote racial and ethnic pluralism in programming is served by its choice to diversify broadcast ownership. Majority led by Justice Brenan upheld the programme applying a standard of review that required the FCC’s diversity programme to be substantially related to an important governmental interest. The majority held that broadcast diversity was such an interest conceding that although no necessary connection exists between ownership and diverse programming, Congressional and FCC finding strongly suggested that diversity would be promoted by increasing the representation of groups currently under represented among owners. The dissenters led by Justice O’ Connor adhering to a standard of strict scrutiny, attacked the majority’s use of the substantial relation test as a dangerous validation of racial classifications and challenged the notion that broadcast diversity was a compelling governmental interest.
In Adarand Construction Inc. v. Pena86 under the Surface Transportation and Uniform Relocation Assistance Act of 1987 Congress required that at least ten per cent of appropriated funds be expanded through the use of small businesses owned by socially and economically disadvantaged individuals. The appellants contended that the presumption that members of certain racial groups were disadvantaged unconstitutionally conferred governmental benefits on the basis of race in violation of the equal protection clause.
The Supreme Court, per Justice O’ Connor, held five to four that federal affirmative action programs were subject to same standard of review — strict scrutiny — that Croson84 had applied to State and local affirmative action programmes. While Justice O’ Connor acknowledged the lingering effects of racial discrimination against minority groups in the country she concluded that when race based action is necessary to further a compelling governmental interest, such action is within constitutional constraints only if it satisfies the narrow-tailoring test. She identified three principles that embodied the court’s treatment of racial classification: Scepticism, consistency and congruence. Scepticism stood for the principle that any preference based on racial or ethnic criteria must necessarily receive a most searching examination. Consistency demanded that same standard of review under the equal protection clause apply to all racial classifications regardless of the specific race of those burdened or benefited by a particular classification. Congruence required that the Fifth and Fourteenth Amendment equal protection analysis be the same. Justice Scalia and Justice Thomas who concurred in the judgment held that racial classification of any kind for any purpose was unconstitutional.
In another important decision the Supreme Court of USA has held that the quota system or lowering of merit for any section of the population in admissions is unconstitutional although it may take into consideration question of diversity amongst students during the admissions.
Part IV
Conclusion
The debate in India and USA on the issue of reservation/set asides has developed more or less on same lines. In America while social engineers want proportional representation for blacks, integrationists emphasise an individual merit and institutional neutrality87. The Constitution of America treats racial classifications as “suspect” and demands “strict scrutiny” from the side of the court in order to validate such classification.
However, there have been suggestions from various writers that “benign” racial classifications should not be subjected to strict scrutiny.88 According to John Hant Ely89 “benign” racial classifications are not the same as racial classifications intended to discriminate against the racially oppressed group. Since in affirmative action programmes the white majority legislates to give some benefits to minorities and in fact legislates against itself, therefore, such classifications cannot be called “suspect” because the theory of suspect classification and “strict scrutiny” implies that the court will guard the interest of racial minority lest it is hurt by the dominant group in social and political life of a country.
Standard of scrutiny had been laxed by Judges like Justice Stevens.90 His general approach towards examining a legislation on the touchstone of equal protection clause has been an inquiry into whether there is a rational basis for challenged classifications. Explaining his approach he says, “In every equal protection case we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a ‘tradition of disfavour’ by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment?”91
In Wygant v. Jackson Board of Education92 he applied this test. Arguing on line with Ely he said that there should be a distinction between inclusionary and exclusionary classifications. Race based classifications that included a minority was categorically different from those that excluded that group. While former was valid latter was not.
However, the Supreme Court in Croson84 and Adarand86 has applied the strict scrutiny and has held that remedial programmes should be narrowly tailored to meet the purpose of correcting the past discrimination practised by that particular institution. It has reiterated the same position in case of educational institutions also. In fact in California affirmative action has been brought to end. Thus, the present position of the Supreme Court is that
1. Racial classifications of all sorts are “suspect”.
2. Strict scrutiny should be applied to them.
3. It should be showed that the institution had practised racial discrimination in the past and the present affirmative action programme is narrowly tailored to remedy that past discrimination.
Thus, societal discrimination as such in history or at present is not relevant in validating the affirmative action programme undertaken by any institution. It has to show that discrimination was practised by it on racial grounds in the past.
Some writers support affirmative action on the ground that a particular group has been oppressed in the society and special measures can be undertaken for the upliftment of that group by an institution who has no history of committing racial discrimination. It is contended that it helps in overall well being and integration of the society.93
The Constitution of India apparently adopts this view with regard to affirmative actions and reservations. The Constitution clearly recognises that there are castes and classes which are in need of special support and protection and the dream of a strong nation will remain unfulfilled unless these classes are brought in the mainstream of the society through various measures. Reservation in services is one such measure.
However, it is doubtful whether the Constitution permits reservation as power-sharing94 or as maintaining balance of power, as was clearly emphasised by Kuldeep Singh, J. in Indra Sawhney case.7 Sawant, J. also stressed this power-sharing concept but it is not clear whether he meant to say the same thing that Kuldeep Singh, J. said or he meant greater democratisation of services on secular grounds. Similar views have been expressed by various people out of the court as well.
What the Constituent Assembly meant by “adequacy of representation” was greater democratisation in the governance of country on secular grounds, especially the services which carried special prestige and power. In 1947, when majority of the population of India was backward such a provision was necessary in order to ensure that services are not monopolised by a small section of the population. It was adopted as a means to push up the backward sections of the population and to bring them into the mainstream of Indian life.
The Supreme Court of India has adopted the above view, is clear from its decisions in B. Venkataramana v. State of Madras95, Triloki Nath Tiku v. State of J&K39 majority decision in Indra Sawhney v. Union of India96 and in Valsamma Paul v. Cochin University97.
In the first two cases distribution of seats on ethnic grounds was struck down as unconstitutional. In Indra Sawhney case7 discussing the 50% rule Jeevan Reddy, J. clearly said that the reservation under Article 16(4) are not given as communal representation. Therefore, the reserved category candidates can compete for general category posts. And if they get selected in open competition their selection will not be counted against the reserved category posts.98
In Valsamma Paul case97 a forward caste lady had married a backward caste man. She was not given the benefit of reservation because she could not be considered backward after taking into account her upbringing. Thus, had the Supreme Court endorsed the view that adequate representation meant representation on communal ground then it would have allowed the relief to the appellant because the Court had affirmed the contention of the appellant that after marriage the wife gets merged into the community of her husband.
Again, by introduction of the creamy layer doctrine the court has ensured that it is actually the backward section of the reserved category population which gets the benefit of reservation. Although Kuldeep Singh, J. favoured the creamy layer doctrine on other grounds Jeevan Reddy, J. gave a somewhat Marxist interpretation by saying that once a person becomes socially and economically advanced the connection between his and the rest of the population of his category snaps. Therefore, he should not get the benefit of reservation.
Although, the Supreme Court has said that Article 16(4) is not an exception to Article 16(1) but an instance of Article 16(4) and Article 1499 it in no way wants to substitute individuals guarantee to equality to group representation. What it wanted to say was that guarantee of equality remains an illusion to individuals who belong to a group which is socially, educationally and economically disadvantaged. Therefore, their group should be protected so that individuals comprising it may not be left “backward” once the individuals of that group are advanced they become a part of the creamy layer of that group they are put into general category and cease to be part of the group for reservational process. Group is only a means to identify the collection of individuals who are backward.
Another point to be considered is that the Constituent Assembly left the responsibility of determination of backward classes on the State, that is, the executive and tried to make it a non-justiciable clause. Had the Constituent Assembly wanted communal representation it would not have left it on the subjective satisfaction of the executive (in a parliamentary form of government) because minorities and depressed classes had always desired for proportional representation (minorities) and protective measures (depressed classes) on the plea that in the absence of such measures it is the majority and the dominant class among the Hindus who will have the power and democracy would become a farce. It was on this ground that the minorities had asked for and were given separate electorates during the British era and were demanding for the same at the time of independence. But the demand was rejected. Thus, it is clear that the Constituent Assembly wanted that it should be the backward section of the population (socially, educationally, economically) which should be given protection and only the executive after verifying the condition of the people could provide the protection to those who really needed them.
Moreover, it seems highly improbable that the Constituent Assembly would allow the balance of power theory and communal reservation in services while specifically prohibiting it in the political sphere, especially more so when services are considered to be apolitical branch of the Government and it is clear that framers of the Constitution wanted the services to be above party and were vehemently against any type of spoils system in India.
The difference between the Indian and the American Constitution is that the American Constitution favours only individuals. The individuals can be classified but not on racial basis. The question is whether “benign” racial classifications are also “suspect” and demand “strict scrutiny”, the present answer of the Supreme Court seems to be yes. But there are suggestions that it should not be. But whatever side result of the debate turns it cannot validate racial classification based on power, sharing on group basis because it would destroy the basic philosophy of the American Constitution based on liberalism and individualism and hence such a classification would be an impermissible classification.
The Indian Constitution on the other hand recognises certain group identities but it is not to subordinate the individual to the group but because group as a whole has to be protected for the time being to protect the individuals comprising it. Ultimately the Constitution desires that individuals would transcend the narrow social boundaries and would be identified basically as an Indian citizen for legal and constitutional purposes. Therefore group identity is the stepping stone which the Constitution recognises in order to liberate the individual.
Moreover, group identity based on communal and sectarian grounds for the purpose of power-sharing would be totally unconstitutional and against the basic structure100 of the Constitution: any classification based for such a purpose would be an impermissible purpose. Although motive of the legislators is no ground to test the validity of a legislation yet a classification to stand the test of constitutionality has to have a constitutionally valid objective. It cannot have a purpose which the Constitution expressly prohibits.101 This is true in case of both America and India.
Another difference which comes out from the present stand of the American Supreme Court and the Indian Constitution is that the American court emphasises that the institution practising affirmative action should prove that it had indulged in racial discrimination in the past. Societal discrimination as such is not enough. The programme should be narrowly tailored to meet the purpose of remedying past wrongs.
The Indian Constitution is a social document.102.. It has been framed with certain objectives, social transformation being one of them. Therefore the Constitution of India recognises the presence of continuous traditional discrimination against certain classes and envisages measures to end them. Thus, such classifications in India are not subjected to anything like “strict scrutiny” and especially after Indra Sawhney case7 they are not “suspect” also. But such classification cannot be for constitutionally impermissible purpose. They should have a valid purpose and “power sharing’ in the sense of maintenance of balance of power or communal representation is not a constitutionality permissible objective and in the words of former Justice Gajendragadkar it is a “fraud on the Constitution”.
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