SUBJECT: AFFIRMATIVE ACTION AND DISTRIBUTIVE JUSTICE

PROJECT TOPIC: EQUALITY AND SOCIAL JUSTICE: AFFIRMATIVE ACTION IN INDIA

Submitted by
Deepa Rani Moondra (909)
X Semester, B.A., LL.B.(Constitutional Law Hons.)
National Law University, Jodhpur.
(Winter Semester, January - May, 2016)

TABLE OF CONTENTS:
INTRODUCTION.3
EQUALITY AND

SOCIAL JUSTICE...

4
INDIA

RESERVATION

AND

SYSTEM

..7
COMPARISON OF AFFIRMATIVE ACTION POLICIES8
CONCLUSION.
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INTRODUCTION
Affirmative Action is defined as, a set of Procedures aimed at proactively addressing the
disadvantages by the sections of the community in the past1.
Social justice equality and dignity of person are corner stone of social democracy. This concept
consists of diverse principles essential for growth and development of every citizen. Rule of law
therefore, is a potent instrument of social justice to bring about equality in results 2. The human
development has been understood in two ways first, the individual happiness and well being,
spiritual and intellectual development and, the second, in its social context in which availability
of opportunity, the social justice and distributive justice are more important, which facilitate or
ensure the first. The first can also be understood as utilitarian concept and the second as
protective principles of social justice.
Caste is defined as a rigid social system in which generation after generation there is maintained
a social hierarchy and little mobility is allowed out of the position to which a person is born. The
increase in social distance between them, which later led to untouchability, might have born out
of the need to retain the purity of their blood. In order to acquire higher status in the society, the
people belonging to lower castes tried to imitate the practices and rituals of higher castes,
especially Brahman3. The lifestyle of lower caste people was considered atrocious by the higher
caste people, such as eating meat, drinking alcohol, etc. So, they started changing their habits,
1 Duncan Innes, Affirmative Action- Issues and Strategies 4 ( Oxford University Press, Cape Town
1993).
2 Dr. K.P. Singh, Supreme Court on Human Rights and Social Justice 2001 Allahabad Law Agency.
P.48.
3 Sandel, M.Justice: Whats the right thing to do? New York, NY: D&M Publishers Ltd.
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and many lower castes people followed vegetarianism, and started maintaining proper hygiene,
etc. In todays civilized society, especially in the city, the lifestyle of different castes has
intermixed, and is no more distinct to a particular caste, although, in rural areas there is still a
caste-wise segregation.
In the present day democratic countries, the main objective of the state and law is to do justice.
But how do we ever know, what is just and what is unjust? There are numerous theories in
Jurisprudence but every theory is criticized.

Under these theories those who favour Affirmative action give majorly the following three
arguments:
1. Affirmative action is corrective in nature, i.e. it helps in overcoming the economic,
political, and social inequalities. For example, affirmative action compromises for
difference in educational background.
2. Affirmative action is compensatory in nature, i.e. it compromises for wrong done to
people in past. For example, there has long been racial and ethnic discrimination against
people and affirmative action ensures that they are able to come to a level playing field
with other people, and are not left behind.
3. Affirmative action insures diversity. Policies of affirmative action insure that there is a
balance between people from different backgrounds, which will insure a good
educational experience for all the members of that institution, and hence will act as a
benefit for society as a whole.
Articles 341 and 342 of the constitution of India provide the process by which a particular caste
or tribe can be included in the list of Scheduled Castes or Scheduled Tribes, to receive the
benefits given to backward classes, and the duty to do so lies with the government of India. And
for this purpose, people in India are divided in two fronts; one those who oppose reservation and
believe that it violates the right to equality, and other those who supports reservation and believe
it to be a positive measure. But the goal for everyone is same, i.e. equality of opportunity and a
better society.

The purpose of giving reservations to lower classes in India at the time when the Indian
Constitution was being framed, was to make sure that people belonging to backward classes
comes to the same level as the higher classes i.e. to develop equality among them , and also to
live with the same dignity in the Society.
EQUALITY

AND

SOCIAL JUSTICE

Supreme Court held that, Social justice is one of the sub-divisions of the concept of
justice. It is concerned with the distribution of benefits and burdens throughout a society as it
results from social institutions, property system public organization etc. The concept of social
justice is not, limited only to directive principles. There can be no justice without equality4.
Even though the goals of people differ one who support reservation and one who oppose,
different view regarding affirmative action comes from the different reasoning about relation
between equality and justice.
As per the Aristotle there are two spheres of justice: justice in the distribution of resources and
justice in retribution. Both involve the formal principle of justice, which states that "Individuals
ought to receive no less nor more than they deserve." or "Treat equals equally and unequals
unequally."
According to Immanuel Kant, A contract that generates principles of right is merely an idea of
reason, but it has undoubted practical reality, because it can oblige every legislator to frame his
laws in such a way that they would have been produced by the united will of the whole nation5.
John Rawls, explained Immanuel Kant concept of imaginary contract by which the legislators
can make the policies that the whole nation would agree to, in his book A theory of Justice. He
gave the concept of veil of ignorance, under which while taking decision one have to forget his
social, economic, political background, and state of body and mind, etc. Only then one would
come to a certain framework of basic rights and duties which he must respect, and only they
govern us in all we do.
4 M.Nagraj V. Union of India, AIR 2007 SC 50.
5 Kant, I. (1785) Groundwork for Metaphysics of Morals.
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This hypothetical social contract is different from actual social contract, because actual social
contract never justify that the outcome will be good, and just because a contract is being made
does not mean that the contract is fair.As per him there are various morally arbitrary factors that
improperly influence the distribution of goods/rights, and those factors are social and natural
lotteries, such as whether you were able to get quality education or not, whether you belonged to
a place with many opportunities, or to a remote village, whether your family supported you or
not, whether you were born physically disabled, etc. So we need a better and a more fair system
of equal opportunity, one such system most followed is the system of meritocracy. This is why
Rawls rejected the system of meritocracy as a fair system for equality. For him, meritocracy is
also a natural lottery, where some people are blessed with more intelligence than others, and we
have to overcome such lotteries. As per Rawls, equality is achieved when these social and natural
lotteries are eliminated. For example, in the case of runner, natural ability can be overcome by
giving, say a meter head start in the race to the less privileged person. As per Rawls, Affirmative
Action is justified. And since, in India the lower caste people are still being discriminated
against, and are under repressed in the society, policies are required to ensure that they are able to
develop along with the society6.
Robert Nozick, one of the most prominent philosophers of Libertarianism argued against John
Rawlss theory of justice. As per libertarianism affirmative action is not justified since it violates
the rights of individuals, and involves more than the minimal state interference, but it is not
correct, and this can be proved by analyzing Robert Nozicks theory of entitlements.
His entitlement theory consists of three principles,
1. Justice in acquisition which deals with how a person acquired the goods;
2. Justice in transfer which deals with voluntary exchange or giving of goods/rights;
3. Rectification principle of injustice which deals with how to correct injustice happened in
past, either as wrongful acquisition, or wrongful transfer.
As per Robert Nozick, the distribution of goods is justified only when there is justice in both
acquisition and transfer, i.e. there is a free market system, and if there is injustice in acquisition
or transfer then it needs to be rectified. The third principle of this theory, i.e. principle of
6 Rawls, J. (1971) A theory of Justice. Cambridge, MA: Harvard University Press.
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rectification of injustice actually favors affirmative action7. As shown in the historical analysis,
the ill-treatment of lower caste people in the hands of higher caste people, left them behind in the
overall growth of the society, they were not allowed to be educated. This is the root cause of their
lower status in the society today. So, they have suffered an injustice in the acquisition of their
right to equal opportunity, and this injustice needs to be rectified, and Affirmative Action
provides a way of rectification of this injustice.
INDIAN RESERVATION

AND SYSTEM

There are many provisions in the constitution of India that aims at securing the minority
rights, welfare of the under repressed, and prevention of discrimination against them. Article 14
of the Constitution of India guarantees equality before law, Article 15 prohibits discrimination on
grounds of religion, race, caste, sex or place of birth, Article 16 provides equality of opportunity
in matters of public employment, Article 17 abolished untouchability, and Article 46 upheld
promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and
other weaker sections. Several other articles in the constitution also advance the cause of under
repressed minorities, such as Article 332 provides for reservation of seats for Scheduled Castes
and Scheduled Tribes in the Legislative Assemblies of the States.
Initially the seats were reserved only for SCs and STs and later, UPA government introduced
reservation for Other Backward Classes in 1990 by implementing the suggestions of the Mandal
Commission. The UPA government in 2005 however amended the constitution

to allow

reservation for OBCs not only in government institutions but also in private unaided educational
institutes.

7 Nozick, R. (1974) Anarchy, State and Utopia. Oxford, UK: Blackwell Publishers Limited.
8 The Constitution 93rd Amendment Act 2005. Amended Article 15 of the Constitution and added a new
clause 15(5): Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State
from making any special provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions including private educational institutions,
whether aided or unaided by the State, other than the minority educational institutions referred to in
clause (1) of article 30.
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The 9 judges Constitution Bench in the landmark case of Indira Sawhney v/s Union of India 9,
observed that the creamy layer must be excluded from receiving any benefit assigned otherwise
for backward classes, the reservation shall not exceed the limit 10 of 50%, and that article 16(4) of
the constitution of India does not allow reservation in promotion.
The apex court held that the reservation in promotion was beyond the mandate of Article
16(4), and violates the right to equality of opportunity. Now in order to continue the reservation
in promotions, the Parliament amended11 the article 16(4) of the Constitution of India and added
a new clause 4(A) stating that the required representation of SCs and STs has not been met. The
clause 16 (4) (A) was further amended12 by the Parliament to provide consequential seniority to
backward class candidates promoted by giving reservation. When the validity of these two
amendments was challenged in the Supreme Court of India, the Court observed that the
concerned State will have to show in each case the existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency before making
provision for reservation.13 After this judgment, the provisions for reservation in promotion
were struck down by various high courts, and their decision was upheld by the Supreme Court.
The Parliament of India again tried to amend the constitution, and the 117 th amendment bill to
secure reservation in promotion for SCs and STs which is now lapsed.
Many people claim that the reservations should be based on economic factors rather than caste.
But that would not fulfill the purpose of having reservations at first place, which is to save
9 Indira Sawhney & Ors v. Union of India & Ors [1992 Indlaw SC 735].
10 This ratio decidendi was obiter dicta in MR Balaji v/s Mysore AIR 1963 SC 649.
11 The Constitution 77th Amendment Act 1995. Amended article 16 of the Constitution, and changed the
clause 16(4): Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion to any class or classes of posts in the services under the State in favor of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of the Sate, are not adequately
represented in the services under the state.
12 The Constitution 85th Amendment Act 2001.
13 M. Nagraj v/s Union of India, AIR 2007 SC 50.
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people from being discriminated against, even though most people in the urban centers of India
are unaware of the untouchability that still persists in the 21st century India. The concept of social
justice thus takes within its sweep the objective of removing all inequalities and affording equal
opportunities to all citizens in social affairs as well as economic activities.
COMPARISON

OF

AFFIRMATIVE ACTION POLICIES

The Comparative analysis helps in understanding the situation better of a country and
proper evaluation of the action can be done.
In the USA, the affirmative action campaign was a means for stopping racial discrimination
practices against non-whites. Unlike India and South Africa, USA affirmative action is not legal
concept which by pointing to a single section of the code of United States can be easily
explained or articulated. It is mixture of case law statutes and the regulations. Various executive
orders or judgment by the courts are integral to the implementation of the affirmative action
program.
Unlike South Africa, the affirmative action in USA is not quota-based. A quota refers to certain
percentage of minority groups to be admitted in school, hired or promoted. For this the more
qualified candidate can be turned down for minority candidate. The Civil Rights Act 1964
prohibited racial quotas14. In USA the concept of legal rights is individual rights approach unlike
India.
India, South Africa and Malaysia, all these countries have adopted the policies of the affirmative
action in the aftermath of the transfer of power. In India, on the state commitment was imposed
to such policies by the Constitution adopted at the Independence, through Article 15(4) and 16(4)
by which preferential treatment for the Backward Classes of people was sanctioned. Indias
affirmative action policies have a clear caste orientation. Reservation is quota based for the entry
level of Government positions and in educational institutions; percentage varies from state to
state on basis of their social, economic and educational backwardness. It does not apply to
private sectors. In contrast, affirmative action in USA applies to both private and public sectors,
although in private sector has been conditional on the size of the firm and eligibility for federal
or State Government contract. In South Africa discriminatory laws apply to both government
14 M.J. Cosson, Affirmative Action: Essential Viewpoints, 36 (ABDO Publishing Co. Minnesota, 1 st
edn.,2008).
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sectors and private individuals.

Affirmative action in South Africa is permitted by the Constitution of South Africa; unlike
Malaysia, the state is not compelled by this constitution for the implementation of the affirmative
action policies. It means that affirmative action clause is enabling clause, which in government
rest certain amount of discretion regarding implementation. Unlike India, South Africa adopted
numerical goals which ensured that a suitably qualified candidate as opposed to an unqualified
candidate would be appointed for filling quota. Unlike India in the USA and South Africa the
direct and specific beneficiaries of the affirmative action measures need not have been the actual
victims of the past discrimination.
In the United Kingdom, Equality Act 2010 has brought together previous anti- discrimination
legislation prohibiting discrimination on the grounds of age, disability, gender reassignment,
marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual
orientation. The limited legislative provision providing for positive action in UK law has meant
that by UK domestic courts, there has been small judicial consideration of positive action.
Conversely, where positive actions have been challenged, the courts have treated such measures
as illegal inequality.
Conclusion
It is a misconception that affirmative action violates individual rights to liberty, when
affirmative action only secures each and everyones right. Looking at the experiences of India,
affirmative action program is not fair if it creates quota; create preferences for the unqualified
individuals. Affirmative action will only work properly if it is fair because the objective of the
affirmative action policies is about removing injustices; it is strong weapon or tool for widening
the economic and educational opportunity.
In India, affirmative action policies has enabled a very small portion or strata of the society of
India to move towards a semblance of economic and social equality Objectively speaking, the
reservation policy favours those who are disadvantaged and discriminated against, and provides
them with certain inheritance rights. Like all broad classifications, not everyone identified may
be really either disadvantaged or discriminated against. The reservation policy treats such
exceptions as unimportant.

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We have two ways out of this: One, ignore the views of the private sector even if that vitiates
social harmony even more. Then, reservation ceases to be a tool and becomes the objective
instead. Two, view reservation as a technique and not as the objective, and that like all
techniques, it can succeed at times, and fail in others. Therefore, look for alternative solutions
that may produce better results, better in the sense they benefit backward castes, and yet will be
acceptable to others.
BIBLIOGRAPHY
1. Arun Shourie 2006, Falling over Backwards, An Essay on Reservations and on Judicial
Populism, Rupa & Co., New Delhi.
2. Neer Varshney, Equality and Social Justice: Is affirmative Action in India Justified?.,
Ontario International Development Agency ISSN: 1923-6654.
3. R. Vaidyanathan Caste as Social Capital, 10 April, 2006,
http://newsinsight.net/columns/full_column22.htm.
4. Dr. Dipak Basu. Failed Affirmative Action in India
www.ivarta.com/columns/OL_060930.htm.
5. Comparative Studies of Reservation Laws.

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