Affiliations and Affirmative Action

        Ashit Kumar Srivastava, Abhishek Nihariya

 

Why do we seek affiliation? And why do we get affiliated to any particular group, caste, community, class, religion or creed? Or why are any such affiliations  bestowed upon us (Even if we don’t want it)? Well, the fundamental idea is quite simple, affiliations profoundly solve our existential crisis (well it cannot be denied that having a sense of belonging is always good).It is what that gives meaning to our life, gives us a purpose to live every day, to have responsibilities, to have duties [In the words of Duguit]. Affiliations do play a major role in our life. The course of history tells us that an affiliation to a particular class is always open to abuse as well as to benefits, and who better to tell this story of abuse and benefit than India; with her never ending and ever consolidating class society, India is an apt example of diverse affiliations. The history of India lies beyond the realms of imagination, dawning with Karan being denied an opportunity to battle Arjuna in a show of strength pageant in Hastinapura by Bhism Pitama on the pretext of his lowly origins (Chariot’s Son) and dusking (actually there is no dusking) with the killing of a Dalit man for riding a horse in Gujarat, the story just keeps on going.

However, the prudent question now is how does affiliation to a class really matters to the Indian Constitution? The Indian constitution always aimed at creating a classless society, where no discrimination is done on the basis of religion, race, sex, caste, creed or place of birth (Article 15). Why then does affiliation to a particular group become a basis in India for providing of reservation? In order to understand this paradox, we need to rummage through the judicial history of reservation, or affirmative action.

In 1950’s the erstwhile Madras Government, by issuing a government order (G.O), reserved seats in medical colleges for a certain Non-Brahmin community.Evidently,the Indian Constitution never said anything for reservation as Article 15 (1) clearly abhors any kind of discrimination.The very text of thr Article,‘The State shall not discriminate against any citizen of India’, establishes that the Indian Constitution was blind to any kind of favouritism. So how did the Indian Supreme Court let this G.O slip without scrutiny? Indian Supreme Court under the case of Champakan Dorairajan vs. State of Madras (1951) held that the G.O was a sheer violation of Article 29 clause 2.

To undo the effect of this judgment, the Parliament of India brought in the 1st amendment and added clause 4 to the article 15, giving itself power to make any special provision for Socially and Educationally backward class and SC/ST.

However, the idea of a particular affiliation getting reservation was still dealt with severity by the Indian Supreme Court. Whereas, the parliament substantially laid emphasis on caste of a person for providing reservation, the Supreme Court showed disinclination for such laws. With the important judgment of M.R Balaji vs. State of Mysore (1963), the Indian Supreme Court cleared it stance, holding that caste cannot be the sole basis for reservation and the extent of reservation cannot be more than 50%. Speaking for the Bench, Gajendra Gadkar said article 16(4) which provides for reservation is only an exception and an exception cannot usurps the general rule of equality under article 16(1).

However, it was Justice Subba Rao in his dissenting opinion in T.Devdasan vs. U.O.I (1964) who sowed the seeds for affirmative action in the real sense in India. The Justice said that Article 16(4) is not an exception to 16(1) but rather it has its own existence and works for social justice; it should be read beside Article 16(1) not under it. In his own words,

“The expression “nothing in this article” under article 16(4) is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited by the main provision [article 16(1)] but falls outside it. It has not really carved out an exception but has preserved a power untrammelled by the other provisions of the Article.”

The dissenting opinion of Justice Subba Rao became a beacon for the coming judges to read Article 16(4) not as an exception of Article 16(1) but as a distinct provision itself. Further affiliation to a particular caste can be a basis for reservation. It was in N.M Thomas vs. State of Kerala (1975) that Justice Krishna Iyer held that reservation can be solely based on a caste if the whole caste is socially and educationally backward. Further, in the Report of Mandal Commission, the commission made caste as the prime criterion for discerning whether a particular class of people is backward or not. Therefore, affiliation to a particular caste automatically entitled an individual for reservation.

We certainly see a shift in the vision of the Indian Constitution, the Constitution primarily aimed at a colour-blind method of an egalitarian society which made a move towards a group-conscious reservation. And it cannot be denied that group-conscious reservation is inherently wrong, because affiliation to such particular group was the prime reason that particular individual of that group got socially and economically discriminated.        

So, does history becomes a basis for giving reservation in India, it will be interesting to see the stance taken by U.S Supreme Court on matter of reservation. The U.S Supreme Court history is filled with cases on affirmative action [Most prominent of which are Fisher vs. University of Texas case (2016), Gruttervs. Bollinger case (2003) and Bakke vs. University of California case (1978)] but the reservation policy in America is governed on two major principles; namely     

 

 

  • Doctrine of Reparation or Compensation

 

The first reason behind giving reservation or affirmative action is for compensating for the past atrocities committed by the past generation on the racial minorities; therefore,  in order to bring them at par with the white dominant majority, it is necessary that they are given an extra little something to abate their differences and suffuse them with equal opportunity.

 

  • Representation of Racial diversity

 

The other scale being that social institutions of society, such as the Universities, Colleges, Medical institutes and public offices must be a representation of the racial diversity of the society it consist it, as an impartial representation of diversity at social institutes only manifests lack of equal opportunity for the other. In the 2003 judgment, the U.S Supreme Court in Grutter v. Bollinger had held that diversity at University level help students in learning about the varying backgrounds of the society as well as exposes their mind to the need and circumstances of the society.  [The Facts and Doctrine discerned above are part of the judgment delivered in the case of Regency of University of California V. Bakke (1978)]

Doctrine of reparation does make a justifiable ground for providing of reservation in India. But till what extent and time, there surely needs to be an end to it, it needs to be understood that providing reservation to a particular affiliation has all possibility of perpetuating class war, of creation of genuine hatred for people of different affiliation.At the same time it cannot also be denied that a large chunk of people in India are still being discriminated against due to a cause upon which they have no control, where birth still plays a major role in deciding one’s future. John Rawls called it the ‘Natural Lottery’ under which one’s birth decides his status in society and hence seal-packs his future. Therefore we need artificial institutions such as the Indian constitution to abate as much as possible the negative impact of such artificial inequality.   

                                                Status = Opportunity    

So the reason that we do not apply the colour-blind principle of equality is that no matter how empowered we make an individual but his identity/his or her affiliation to a particular group still draws some attribute which might be odious in nature and will eventually lead to social discrimination. To do away with social discrimination, we firstly need to do away with this negative attribute, we need to give reservation not to an individual but to a class of people, because being a member to such class gave rise to discrimination and once this ordeal is over there will no need to classify people according to their affiliation and we can move back to the original intention of the Indian Constitution.  

 

Author: Ashit Kumar Srivastava (AKS) is an Assistant Professor of Law at National Law University, Odisha who did his masters in Constitutional Law from Rajiv Gandhi National University of Law, Patiala (2016-17)

CO-Author: Abhishek Nihariya is a third-year law student (B.A LLB) pursuing his graduation from Rajiv Gandhi National University of Law, Patiala. 

 

Featured Image Source- Scroll.in 

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