CHAPTER - I

INTRODUCTION

A democratic ideal of justice must rest on the three foundations of

equality, liberty and ultimate control of government by the people. It is,

however, far from easy to give these concepts a specific content.

Democracy is certainly based on the ideal of equality, but no democratic

state has seriously attempted to translate this ideal into the absolute

equality of all. There are numerous inevitable inequalities of function and

status, between adults and infants between sane persons and insane,

between civilians and military, between private citizens and officials. We

can still not formulate the principle of equality in more specific terms

than Aristotle who said that justice meant the equal treatment of those

who are equal before the law. We can give to this apparent tautology a

more concrete meaning by saying that a democratic ideal of justice

demands that inequalities shall be inequalities of function and service but

shall not be derived from distinctions based on race, religion, or other

personal attributes.1

This means that a judiciary as independent from interference by

the executive as is possible, given the interlocking of state functions and

the human factor in the judicial function, is an essential of the democratic

ideal of justice. But it is impossible to lay down a generally accepted rule

 2

either as to the substance of these rights or as to the manner of their

protection. The Declaration of Rights, adopted in 1948 by the United

Nations, is vastly different from the Bill of Rights embodied in the

American Constitution. The Australian Constitution contains no

individual rights other than the guarantee of religious freedom and

perhaps - though this is still very much open to doubt - a protection of

the individual from the restriction of free inter-state trade by state

regulation (section-92). British law knows of no guarantees of individual

rights other than the limited guarantees of personal freedom in the Bill of

Rights of 1688 and the Habeas Corpus Acts. Some additional protection

for individuals is provided by the procedures established under the

European Convention on Human Rights and Fundamental Freedom. In

one type of democracy, a written constitution, which it is normally veiy

difficult to alter, formulates and at the same time petrifies the meaning of

the rue of law in a manner binding upon legislative and executive alike.2

The state acts first as a protector. This is its traditional function,

and classical liberal thought regards it as the only legitimate function of

the state. Older British and American decisions reflect tins conception in

describing defence, foreign affairs police and the administration of justice

as the legitimate functions of the state.3 To this may be added a limited

taxing power confined to the efficient discharge of these functions. These

 3

are the traditional spheres of state sovereignty, and consequently, it is in

this field that the inequalities which detract from the rule of law in

Dicey's sense are most evident, though Dicey consistently attempted to

belittle them for the sake of his principle.4

The State functions as arbiter between different groups in society.

The term 'collectivist' state is often used loosely. A social-service state

need not be collectivist. It can be a parental or dictatorial state, dispensing

social welfare among the citizens while forbidding them to engage in any

autonomous collectivist association, like Nazi Germany or Fascist Italy or

Franco's Spain. On the other hand, the state may take complete

responsibility for all group activities going on within its borders, while

regarding their quasi-autonomous organization as convenient and

necessary form an administrative and managerial point of view.5

The harsh reality is that the independent India had to inherit a

complex caste problem. The wise founding-fathers of our Constitution

knew it well that in free India any discrimination and exploitation by any

section of society against any other sections could not be justified either

morally or legally. So it was realized that the Colonialism of the higher

caste must be ended through the Constitution. It is in this background that

it became indispensable for them to adopt a policy of compensatory

discrimination as an equalizer to those who were too weak socially and

 4

economically in the case ridden society. They were quite aware that these

masses had suffered social injustice too long and been separated by the

poverty curtain too strong that if peaceful transformation of the nation

into an egalitarian policy were not achieved, chaos, upsurge and massive

disruptions would destroy the peaceful progress which is freedom's tryst

with Indian destiny.6 Thus, the architects of our National Charter rightly

considered the reservation in the various spheres of the life as one of the

potential means of reducing inequalities. Special concessions have been

made to these castes in terms of reservation of seats in the legislative,

educational institutions, and government services and in terms of

pecuniaiy benefits.

The primary objective of the Constitution framers was that this

backward and suppressed segment of Indian population should be

emancipated at the accelerated pace to catch them up with the overall

pace of national development. Unfortunately, Indian social system has for

centuries perpetrated social and economic injustices by the so-called

higher castes on the lower castes who have been systematically denied

equal chance in the opportunities and facilities of the larger society. They

have always been set apart from the mainstream of the national life and

remained socially oppressed, economically condemned to live the life of

penury and educationally coerced to learn the family-trade or occupation

 5

and to take education set out for each caste and class by society. They

were in a very real sense marginal men or outsiders to Indian system, they

lived in communities but were not of it.

The philosophy of reservation in fact envelops policies to

safeguard the interests of historically disadvantaged classes of the people.

It has a note of inter-generational justice a class is compensated for loss

incurred by that class in earlier generation which resulted into present

disadvantaged position.8 It aims at accomplishing the object of historical

restitution or reparation to offset the systematic and cumulative

deprivations suffered by the lower castes in the past.9 Though it entails a

systematic departure from the norms of equality, i.e. merit, yet there are

different justifications of these departures anti-discrimination, the general

welfare and historical separation.10 It is perhaps with this objective in

mind that T. Chinniah, during the Constituent Assembly Debates,

strongly dared to establish his claim that reservation must continue for

150 years for the strong argument that it had been the period during

which opportunities had been denied to the Scheduled Castes in India.11

That is why the lex suprema solemnly declares that the State shall take

positive steps to remove or eliminate existing social inequalities by

special measures and protect them from social injustices and all forms of

exploitation. This is justified because unequal characteristics of human

 6

beings are not as a result of innate superiority or inferiority but of unequal

environment into which men are born and must live. If the inequality in

their environment is removed or eliminated there will be greater chance

to attain a stage of real and effective equality.12

It is quite imperative to stress and impress upon that the

reservation for Scheduled Castes, Scheduled Tribes and Backward

Classes in an exceptional and temporary measure designed to be used for

the purpose of mitigation of the inequalities between communities. It is at

all a device to consolidate and protect a group's separate integrity.*3 The

period of reservation has been repeatedly extended five times but

unfortunately still it is being felt that the inequalities, social, political and

economic have not yet been removed and that they need this reservation

for some time more so that their conditions are ameliorated and they are

enabled to come on par with the rest of the nation. The truth remains that

even today the lower layers of the weaker sections of people are where

they were two centuries ago baring a few have monopolized all the

benefits designed for the weaker sections of the society. The general

opinion is that the benefits of reservation policy by and large have been

snatched away by the top creamy layer of the Scheduled Castes and

Scheduled Tribes and Backward Classes. Thus keeping the weakest of the
 7

weak always weak and leaving the fortunate layers to consume the whole

booty.

In this conspectus, it is developing towards social disequilibria

instead of functioning as an instrument of social engineering. The device

of reservation has virtually become a tool of aggrandizement in the hands

of politically dominant people, who always try to strike political bargain

to retain the political privilege even at the cost of deserving. All this sad

state of affairs has given birth to a new classes like pro-reservationisjLs

and anti-reservationists. The distrust between the reservationists and anti-

reservationists will certainly have serious repercussions and ramificatiqns

on our social structure and fabric which is already pregnant with many

other serious problems and issues. Therefore it is incumbent upon to

examine the impact of reservation policy on the weaker sections of the

Indian society and see whether these poor brethren have really reaped the

benefits of the reservations mechanism in the light of Constitutional

philosophy, which envisioned an egalitarian society of preambulary

concept thereof.

Therefore, the researcher has undertaken the present study with the

objective to see that to what extent the beneficiaries of reservation policy

have been benefited in the light of the Constitutional commitment and

guaranties therefor. An attempt has been made in the present study to

assess the impact of various measures adopted for the welfare of the

weaker sections of the people. It is also an endevour to examine the

political, social and economic aspects of reservation policy and its

impact. Moreover, special attention has been given to see as to how far

the traditional caste-system has undergone a qualitative change.

The Constitution of India in its Preamble avers two basic

principles i.e. "equity" and "Social democracy", as such the policy of

protective discrimination obviously is against the basic norms of the

Constitution. But the framers of the Constitution as inevitable necessity in

view of the past social history of India considered these contradictory

provisions.

The Constitution of any country or nation is primarily made to

shape and reform the society of that country. Our Constitution has also

been made for this purpose, which envisages constructing a society

wherein every individual is able to get his needs and maintain a uniform

social standard. Every individual is treated at an equal level, their

interests are protected to build themselves and provide an opportunity to

participate in nation building programme. No one is left behind to achieve

this aim. This is only possible when opportunities are made available to

all persons without any consideration based on caste, creed, race,

language or religion.
 9

Looking at the social history of India it may not be possible to

strictly adhere to these constitutional parameters. Since ages India has

remained to be a society of various races, tribes, communities and caste

with each group following a separate religion language or culture, a

breakthrough to achieve the goal of equality is therefore, to face major

challenges. Socio-religious, geographical and ethnic factors are believed

to be main reasons for the formation of social stratifications. In the social

working each group is identified with supersensibility of one's religion,

language, culture etc., and as such develops a prejudicial approach

against one another. In this process not only an integrated social

development is prevented, but a feeling of inequality is generated among

the people of different castes and religions.

A more sharp and sensitive feeling of inequality existed in Hindi

social system ever since Hindu society came to be vertically divided into

four divisions i.e. Vernas or castes. In this caste ridden social structure,

each division treated the other caste with a spirit of separation. Each

division alienated the other, both materially and religiously. An undying

prejudicial feeling in the social relation developed with separate religious

view. Since the whole society is vertically divided, the upper classes

dominated the lower, and the lower most was oppressed by all the three

upper castes. Not only this oppressed class was dominated but was
 10

excluded from the social life only to be assigned the low graded menial

work. This class continued to serve the upper classes and in the course of

time came to be divided into two classes named as scheduled castes and

scheduled tribes. They were left much behind from the society in every

respect viz, educationally, socially and economically because of their

total alienation from the society and denial to enjoy the facilities of life.

Along with this class another section of society became the victim

of feudal way of life. It can be identified as socially and economically

backward class of persons. This class was exploited at the powerful hands

of the feudally ridden dominant section of the society who were big land

holders or zamindars. The feudal class availed their services in the way

they liked and even without paying them adequately for the services. So

strong was the domination over them that they could not withstand these

forces but to accept them. They were also not able to avail of any

opportunity to ameliorate their social and economic conditions and thus

remained backward. In this category, people of all communities and

castes are included as they are the economic sufferers because of the poor

economical conditions they were forced into and out of which they could

never come to the standard of other economically classes.

The cumulative effect of the social stratification, the division of

Hindu society into four compartments and feudalism, led to the

 II

disintegration of Indian society to perpetuate inequality in all the spheres

of social life and social relations. Moreover, British Government took

advantage of this situation and rigidly enforced the sources of inequality

in order to consolidate its power.

It is a social fact that the upper class constantly took advantage

from a large chunk of society by exploiting them in the name of religion

to serve the needs of a feudal agricultural society. They had their

economic interest in maintaining the status quo by keeping them

uneducated and allowing them to subsist with a limited economic

resource which was starkly enough for their survival.

SELECTION OF THE AREA:

All men are created equal. In order to make the right to equality

meaningful and purposeful, the Founding Fathers of the Indian

Constitution made number of provisions to ameliorate the socio-

economic conditions of Backward Class besides the Schedule Castes and

Scheduled Tribes so as to bring them to a level comparable with the

advanced sections of our society. The Framers of the Constitution were

well aware about the miserable and apathetic living conditions of this

section which has remained segregated from national and social currents

and has been economically oppressed for centuries. Consequently they

 12

resolved in the preamble to secure to all citizens justice-social, economic

and political, equality of status and opportunity and to promote among

them fraternity assuring the dignity of the individual.

In a caste-ridden, socially and economically unbalanced society,

the doctrine of social equality ensuring socio-economic justice would be

meaningful if protective discrimination in the form of reservation is given

as an equalizer to those who are too weak-socially, educationally and

economically. It tries to achieve equality in fact by giving preferential

treatment to these classes, so that they join the main stream of national

life. This is a policy devised for social reconstruction and to build a

casteless and classless society and seeks the elimination of the existing

inequalities by positive measures. It is a strategy developed as an

aggressive response to the pervasive disparities of status and opportunity

among Indian citizens.

The undignified social status and sub human living conditions

leave an indelible impression that their forlorn hopes for equality in every

sphere of life are only a myth rather a reality. It is verily believed, rightly

too, that the one and only peerless way and indeed a most important and

promising way to achieve the equal status and equal opportunity is only

by means of Constitutional justice so that all the citizens of this country

 13

irrespective of their religion race, caste, sex, place of birth or any of them

may achieve the goal of an egalitarian society.

The Supreme Court of India has handed down a series of landmark

judgements in relation to social justice by interpreting the Constitutional

provisions upholding the cherished values of the Constitution and thereby

had often shaped the course of the national stream of social and economic

justice. Notwithstanding a catena of expository decisions with

interpretive semantics the naked truth is that on stretch of light or no ray

of hope of attaining the equality of status of opportunity is visible.

After the judgement of Mandal Case, providing 27% reservations

in the Central Services and public sector undertaking to Other Backward

Classes as per the recommendations of the Mandal Commission Report

has created tension between meritarian principle and the compensatory

principle (principle of redress). The recent political extension of policy of

reservation at centre level for the first time to newer groups on the bases

of'Caste' has created a lot of social tension. Many castes that have been

left out of this protective net have started claiming that they are in no way

economically socially and educationally better than those preferred on the

basis of Mandal Commission Report. In the 50 years of constitutional

experience in India in the post independence era, their position has also

not improved under the conditions of scarcity.

 14

In the original draft of the Constitution of India the Article 15 did

not have sub clause (4) in its scheme. It is a later insertion by the

Constitution (First Amendment) Act, 1951. On the other hand clause (4)

of Article 16 is an original provision of the Constitution of India.

Therefore, it appears from a micro examination of both the provisions

that there is a noble and solemn mandate which have been caste upon the

state under Article 340 of the Constitution of India wherefrom the

mandate of clause (4) has been taken and added to the Article 15 of the

Constitution. But judicial establishment at the highest level has not

interpreted the Article 15(4) and 16(4) in the light of Article 340 of the

Constitution. Consequently, it has created a dichotomy, which still

remains to be obliterated by a judicial dictum.

The package of reservations aims at removing the socio-legal

disabilities of certain specified groups to facilitate their equal

participation in the national mainstream, and to protect them against

social injustice and exploitation. The entire mechanism of protective

discrimination has been designed by Founding Fathers of our

Constitution to be used as an engine of social engineering Reservation are

meant for correcting historical injustice and finally bring out equality

among" all castes and communities. The basic postulate is that

 15

unprivileged is brought on at par with his fortunate fellow-brethren and

then leave and then leave him alone to fend for himself.

The reservation policy requires urgent restructuring so that the

downtrodden get assibilated in the national mainstream. What is required

therefore; is not to scrap the policy but to make it judicious. The major

thrust at the moment should be to help the downtrodden on the economic

basis. The fact that the benefits of reservation for 50 years have not been

able to ameliorate the lot of the SCs and STs and other Backward Classes.

An attempt has been in this work to study and analyses the

Constitutional provisions relating to reservations in the light of political,

social and economic conditions of the masses. There is a vast gap

between judicial approach to the problem and ground realities. It has tried

to examine these pronouncements in their overall context and in doing so

has made certain practical suggestions to make the policy more viable,

effective and result-oriented.

METHODOLOGY

The research methodology and employment thereof is an

inevitable aspect of a research endevour. The realization of hypothesis

can only be attained through research methodology in systematic,

scientific and pragmatic manner. Primarily, the present study is a

 16

doctrinal research work wherefor anthropological studies, constitutional

philosophy and mandate constituent assembly debates, cases Laws,

Reports of Commissions, thematic contributions on the subject published

in various books, magazines, newspapers and journals have extensively

been consulted and discussed. Consequently, the formulations envisioned

in the hypothesis have been realized.

THE PRESENTATION OF STUDY

The presentation of research study is an intellectual adumbration

and accomplishment of the hypothesis. The present study has been

completed in six chapter dealing with different aspects of the research

topic, which have been presented as under:

The Chapter-I has been captioned as "Introduction" whereunder

entire gamut of the research formulation has been introduced, cajoled and

collated.

The Chaptcr-II has been designated as "Socio-Economic Justice

: Genesis and Development". The normative framework of justice has

been visited de nova while discussing the various permutations and

dialectics of justice based on social hierarchy, democratic norms and

realities. It is the notion of justice in its different manifestations social,

economic and political - which directs our attention to the fairness and
 17

reasonableness of the rules, principles and standards that are the

component parts of the normative edifice, formal social structure and

institutional legal arrangements and their worth in terms of their

contribution to human happiness and the building egalitarian societies

and civilizations. Therefore, socio-economic justice and its genesis

concept and development has been pondered over and analysed while

taking into account the social compartmentalization in India in its various

colours and connotations.

The Chapter - III has been discussed as "Principles of Equality:

Dimensions and Devices" Primarily, equality is a polymorphous concept

which carries a number of different meanings. Its reference under the

instant study is transnational. It includes in its scope the equality of legal

treatment, equality of political participation, equality of opportunity and

equality of basic human needs and how these notions of equality have

been contextualised and reflected in the Constitutional philosophy of

India wherein it is still eclipsed by a social segregation which has

necessitated its critical examination under the present study. Equality is a

very vital principle of social justice. One of the distinctive and pervasive

features of Indian society is the division into castes. Thus, independent

India embraced equality as a cardinal virtue against a background of

elaborate, valued and clearly perceived inequalities. Equality in action

 18

and reality with all its concomitant notions in and under different national

jurisdictions and organizations of multilateral character has been put to

test in this chapter.

The Chapter -IV has been pursued as "Socio-Political Justice to

the Weaker Classes" whereunder the object of justice in a land of social

hierarchy like India have been examined. The main object of the framers

of the Constitution was to ensure social, educational, economic and

political equality amongst the peoples. An equitable social order through

the rule of law securing to We, the People of India socio-political justice

by an inter play of fundamental rights and the directive principles of state

policy has been analysed in the instant chapter in the light of historical

retrospect and post modern developments inter-alia constitutional dicta of

reservation mechanism which has moved political democracy to social

democracy. Socio-Political justice to the weaker section of the people and

empowerment thereof through reservation of constituencies with all its

ramifications have been examined in an era of political sabre-rattling

The Chapter - V has been delineated as "Socio-Economic

Policies And Constitutional Wisdom of Non-Discrimination"

whereunder constitutional imperatives of non-discriminations viz-a-viz

socio-economic policies pursued by the governmental establishment have

been examined. Equality conceives that all who are alike in the eyes of
 19

the law be treated in a fashion determined by law. The validity of a law is

made subject to the requirement that equal persons and equality situations

must be treated equally or at least similarly if they are in fact equal or

similar under the prevalent standards of justice Thus, present chapter

deals with Articles 15(4) and 16 (4) in the light of contemporary social

metamorphosis dictated by a movement from equalitarianism to

egalitarianism. The implementation of constitutional wisdom of non-

discrimination through socio-economic policies formulated by the

governments while taking into consideration all lego-historical

dimensions has been elaborately examined.

The Chapter - VI has been evolved as "Philosophy And Wisdom

of Protective Discrimination Under the Constitution VIZ -A-VIZ

Judicial Dicta" whereunder the concept of protective discrimination

based on classification for preferential treatment and emerging

jurisprudence thereon have been analysed, examined and evaluated. The

concept of creamy layer has given a new dimension to the entire

philosophy of compensatory jurisprudence because it is the identification

and determination of backward classes, scheduled caste and scheduled

tribes and backwardness which have impelled the human wisdom to find

true happiness wedded to a welfare state. The reservation and its

continuation is res nova and therefore requires pragmatization in a nation-

 20

state which claims equality, social justice and human rights. The whole

philosophy of and wisdom of protective discrimination are based upon

social justice which seeks to promote equality of opportunity various

walks of life. This chapter deals with concept of protective discrimination

which in itself highlights the causes of backwardness and need of its

elimination. The question of identification of backward classes of citizens

other than Scheduled Caste and Scheduled Tribes led to divergent judicial

approaches since the expression "backward class" has not been defined in

the Constitution. Even the judicial journey under taken from Balaji to

Mandal - II has not been adequately sufficient to eliminate these

perennial cleavages in the socio-political set-up of the country. In this

conspectus, an attempt has been made to address these issues in this

chapter in a cogent, convincing and conceived manner.

The "Conclusion and Suggestions have discussed and evaluated

the entire constitutional and governmental wherewithal in the realization

of an Utopian state. Some plausible and pragmatic suggestions have been

put forward to improve upon the existing conditions of the disadvantaged

groups and sections of the people.

 21

NOTES AND REFERENCES

1. W.Friedmann, "Law in Changing Society," Sweet & Maxwell Ltd. U.K.

1972, p.503

2. Ibid

3. Ohio v. Helvering, 292 U.S. 360 (1934); Coomber v. Berks Justices

(1883) 9 App. Cas.61.

4. Supra note 1.

5. Supra note 1.

6. V. R. Krishna Iyer, quoted in Anirudh, Social Engineering and

Constitutional Protection of Weaker Sections in India (1980), p. 9

7. T.K. Oomen, "Scheduled Castes and Scheduled Tribes," in S . O Dube

(Edited). India Since Independence : Social Repair on India (1977), p.
155

8. Marc Galanter, Competing Equalities : Law and the Backward Classes

in India (984), p. 1

9. Ibid

10. Anirudh Prasad, Reservation Policy and Practice in India : A Means to

an End (1991) p. 39

ll.C.A.D. Vol. VII, p. 690

12. Anthony Lester and Geoffary Bindmain, Race and Law : Law and
Society (1972), p. 74

13. Supra note 6.